NIH Guidance on use of Media Including Photos, Graphics, Video Clips, and Audio Files on the Web, in Publications, Training Materials or Other Public Resources

Perspective

In order to enhance public understanding of science and health, NIH wants to make available as much of the material it has created (or contracted for) to the public.

NIH respects copyright and has put procedures in place that help it to avoid infringing the rights of third parties, and alerts members of the public who may wish to use the material of any limitations on such use. This is to ensure that the public can easily distinguish between materials that are free to use without limitation and those limited to a fair use, the agency has developed guidance for accomplishing both improving openness and ensuring protections.

Public Domain. It is not true that everything on a federal website is in the public domain. The following principles will explain how the freedom to use materials can be determined and how to, in creating or providing materials, NIH can provide the most free-to-use material possible.

Major Principles to Note

• Work by NIH employees created as part of their work product. It is true that copyright is not available in the United States for material that is authored by a government employee¹, and any such material provided on an NIH website may be used by the public in any manner and for any purpose. Intramural scientists. This free use includes work products from intramural scientists who created images or other media files during their work at NIH - including work that is published in journals. Note: Other material typically found on NIH websites is prepared by NIH contractors who may own, but are prohibited by the contract from asserting, a copyright in the materials. Ordinarily NIH obtains unlimited rights in such material, which allows the agency to display it on its website and also allows NIH to provide it to, and authorize, the public to use it for any purpose. Again, be sure and don’t assume that the works you are sharing have unlimited rights².
• Third party media products. Still other materials (most often photo-images) are obtained from third parties under limited licenses that permit NIH to display the material for a limited term but does not allow the public to use the image for any purpose that would exceed a fair use³. This includes stock photos.
• New system for managing media work products to share. NIH has created a system to identify materials on their websites that, either because they are works authored by government employees or obtained under government contracts with unlimited rights, can be used by the public without limitation. The system will also make it convenient to determine which materials are owned by third parties and used under license by NIH, and cannot be used by the public without limitation.
• Grantee work products. Note that materials developed by extramural grantees are a different situation. If a grantee creates a photo, the grantee owns the copyright, subject to a government-use license, set forth at 45 CFR 75.322. This gives the awarding federal agency a royalty-free, nonexclusive and irrevocable right to reproduce, publish, or otherwise use the work for Federal purposes, and to authorize others to do so. Note that the use is limited to Federal purposes.
• Publisher requests. Requestors may ask for permissions from publishers directly. As we know, some publishers are more responsive than others.

• Use of non-NIH imagery. It is important to know the source and copyright status of images (photographs, charts, comics, etc.) when considering their use on your digital properties, as well as their possible inclusion in presentations and/or other publications. It is safest to assume an image is protected by copyright and would require written permission from the creator before use, unless there is other indication that the work is free to use or in the public domain.  In the U.S., as a general rule (though not in all instances), a work is considered in the public domain if the author/creator died more than 70 years ago, or if copyright never applied to the image (as in the case of a work created by a Federal employee).  Do not assume that giving credit to the source of the image is enough to protect you from copyright infringement.  Look for images that are in the public domain, available under a Creative Commons license, or purchase an image from a stock photo agency.

Planning for Broad Use by NIH Staff

To minimize confusion for the public as to what materials from agency websites may be used for any purpose and to clarify any limitations, the following practices should be adopted.

• When an office acquires an image, visual, audio file, or the like, be sure that you know its origin and the rights associated with the material, and be scrupulous in annotating each.
• When procuring existing materials or materials that will be created under a contract, make sure that the materials will be owned by NIH or that one of the Federal Acquisition Regulation (FAR) data rights provisions is included in the contract, so that NIH will have an unlimited rights license.
• When purchasing a license to an image or for audio obtain a field of use that is large enough to satisfy the requirement, and obtain a perpetual term/license if possible.
• Carefully annotate and docket the term of licenses so that the material can be removed from the website before its expiration. Tag the material to indicate any limitations on the scope of its use (e.g. educational).
• Be consistent in using the technical guidelines for tagging the images or audio being offered. That will give your IC or Office a record of what you have done without additional effort.
• Avoid any assumptions of how a photo was acquired in either a scientific effort or a photo taken at a public event.
• You will want to ask for a comparable image from your scientific staff or explicit knowledge of ownership of a photo taken at an event.
• Be sure for any non-public event, that you have a photo release permitting the use of the image on NIH websites.
  *An example follows.

Join the NIH effort to make all materials used on NIH websites available for use by the public without limitation or restriction!

¹ Section 105 of the Copyright Act (17 U.S.C. § 105).

² Notwithstanding the copyright status of a photo, a right of publicity may be associated with images of personalities, and users should obtain their own counsel before using them commercially.

³ As defined by Section 107 of the Copyright Act (17 U.S.C. § 107).