Disclaimer: I am not a lawyer. I don't even play one on TV. This post is not a substitute for consultation with a local attorney who can give you more specific advice about your particular situation. What I am offering here is simply informational, and is a result of my sitting down for about an hour trying to make sense of all this.
With all that out of the way...a friend of mine is filing her dissertation soon, and she was confounded with whether or not she needed to get permissions for every single photo she was going to put in her dissertation, since it's not technically a publication (though the question gets super complicated when you have services like ProQuest creating digital databases of dissertations that are generally pretty accessible if you have a university ID). We went back and forth with possible conjectures: it's not really a publication, and it's all educational, so it should be fair use....right? A pretty concerted effort to ask a ton of university librarians yielded lukewarm results, since it's likely that all the librarians got a talking-to about never giving legal advice about copyright (which makes total sense).
But given that dissertations are filed left and right every year (huzzah!), it seemed kind of strange to the both of us that there wasn't some kind of standard operating procedure to the whole question of images and other third-party material in a humanities thesis. So, with all of that clouding up my brain, I thought it best to just sit down and see what everyone has to say.
Here's a brief write-up of what I found:
Literature review: Yale says to use fair use or request permission. Tufts says that fair use is generally appropriate, but if you’re using lots of material, then you should seek permission. The University of New Mexico Library is agnostic on the topic, but they defer to the UNM Office of Graduate Studies, which wants students to obtain written permission from all copyright owners. The University of Pittsburgh just tells you to do your best: there is a solid fair use argument, but you can strengthen your case by having lots of commentary on each image, using lower-resolution images, and being meticulous about attribution. Stanford’s Copyright and Fair Use Office posted the Center for Media and Social Impact’s “Fair Use” guide as a “code of best practices” for images in dissertations, which says that using copyrighted images is generally fair game for theses if the image is used in an explanatory, transformative, and illustrative way (i.e. not simply as ornament).
People who generally think that it’s fine to just use the images: USC says straight up that using images in theses/dissertations is generally covered by fair use. The Association of American University Presses goes a step further: "If you are confident that your proposed use of an excerpt is “fair use,” it is often better not to ask for permission.”
Maybe you can evaluate the situation on a case-by-case basis: As far as deciding for yourself what constitutes fair use, the University of Michigan has a useful play-by-play about how each pillar of Fair Use applies (or doesn’t) to dissertations. Everyone, though, seems to cite the Visual Resources Association’s Statement on Fair Use, which stipulates that these fair use arguments tend to hold up when:
- Significant commentary, or other original content, accompanies images included in the thesis;
- Conversely, images included in a thesis are subject of commentary or illustrate a scholarly argument, and are not included for purely aesthetic purposes;
- Images are incorporated at a size/resolution necessary to make the best scholarly argument;
- Attributions are provided to the copyright owner of the image, where known;
- The circulation and distribution of the thesis through online websites or repositories is consistent with academic practices or requirements set forth by the degree-granting institution.
If the image you’re using is published in a journal: While this doesn’t necessarily apply to images that you’ve photographed in an archive (i.e. you’re taking a picture of a picture), the University of Arkansas has a super useful guide that basically says that lots of professional societies/journals – American Chemical Society, British Medical Journal, Elsevier, IEEE, etc. – allow reuse of basically all materials governed by those societies in theses, no permissions necessary. (The guide also includes links to a slew of publishers’ permissions guidelines.) The University of Florida has a similar guide, with a little more description of what is and isn’t allowed by each publisher/society. Some libraries (like MIT) have licensing agreements with various presses/journals that allow for use of images/material.
The most useful resource by far has to be this guide by ProQuest which deals specifically with copyrighted material in dissertations. They say to do a systematic review of your draft and monitor all third-party materials for citation and copyright. Here is the example they give (p. 18):
Photographs: Your dissertation examines the missionary movement in the American West during the mid-twentieth century. You found a collection of informal photographs evidently made by different photographers at different times and places. Selected photos, reprinted in small size and in low-resolution on the page with analytic text is likely to be within fair use.
If you do decide that you need to get permission, though, Stanford has a great guide called “Basics of Getting Permission.”
TL;DR: In the most practical sense, it seems like most libraries tell you to do your best to get permission, but that most material falls into fair use, which you must evaluate for yourself. If you’re using materials from professional societies/journals, though, you’re probably in the clear (check their guidelines). If you want to be more conservative about fair use, use black/white and low-res photos, and make sure to be meticulous about your citations and do lots of explanatory work around the image. To be on the safe side, according to ProQuest/Columbia, set aside a couple months before filing your dissertation to evaluate all third-party material you might include and send permission requests for everything that's not covered under fair use or in the public domain.