COPYRIGHT IN PHOTOGRAPHS.

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP57-00384R001100050097-1
• Release Decision: RIPPUB
• Original Classification: C
• Document Page Count: 3
• Document Creation Date: December 9, 2016
• Document Release Date: April 16, 2001
• Sequence Number: 97
• Publication Date: September 30, 1948
• Content Type: MFR

Approved For Release 2001/08/24: CIA-RDP57-00384RO0110005,0097-1
*OGC Has Reviewed*
MEMORANDUM FOR THE RECORD.
SUBJECT: Copyright in Photographs.
30 September 19L18.
1. On Monday 27 September, a conference was held between
Mr. Houston, the undersigned, and Chief of the
Graphics Register of OCD. The problem has arisen concerning
the right to include in and to disseminate from the Graphics
Register photographic material -- both still and motion pic-
ture -- much of which would be protected by the copyright law,
both statutory and common law.
2. This matter was also discussed by the undersigned and
Mr. Arthur Fisher, Associate Register, Library of Congress.
3. It should be noted that at the present time there are
two predominant schools of thought in the field of copyright.
The first is represented by the adherents to the Bern Conven-
tion, who urge the maximum protection for the creator of intel-
lectual property, including the maximum protection for his
right of exploitation and reproduction for pecuniary gain. The
second school would modify this theory somewhat under the doc-
trine of "fair use." This is a common law doctrine which its
supporters seek to expand in the interests of national collec-
tions and scholarship.
1i,. It is generally felt that if an author offers his
work for sale to this Agency, he should be paid for it by con-
tractual agreement. Whether he desires to sell the material
or to make a gift thereof, a written release should be secured
by CIA which will give it the authority to reproduce and dis-
seminate the material in the interests of national security.
5. In considering compensation, it should also be remem-
bered that a photograph is a whole work in itself, as contrasted
to quotations from books, which are only portions of a copy-
righted work. These principles must govern, regardless of
whether the work is one that is protected by statutory copy-
right or by the creator's common law right of copy.
6. If the work is published and protected by copyright,
it is felt that to reproduce in a single copy for the master
Graphics Register file might well be justified under the doc-
trine of fair use. It is felt that dissemination of copies of
this photograph to an extremely limited number of recipients
of a document in which the photograph appears as an illustration
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might conceivably be justified in the interests of national se-
curity as fair use. Also, the main basis of such justification
seems to be the fact that there is a relatively small possibil-
ity of detection of the infringement. Nevertheless, it should
be noted that, where the photograph is reproduced and dissemin-
ated in multiple copies, a violation of the copyright law will
have taken place. However, as stated above, the possibilities
of detection are small, the measure of damages would be infini-
tesimal, and the necessary work of searching the records to as-
certain whether the photograph was copyrighted and by whom would
be prohibitive, when multiplied by many such instances. One of
the dangers of the "help-yourself" doctrine is the fact that
the document may eventually be declassified and reach a much
wider number of people, so that ultimately the infringement
might be detected.
7. It would therefore be preferable if direct contracts
were made with the main sources of pictorial information, news-
papers, magazines, news reel and motion picture companies, and
the like, wherever possible giving CIA the right to use and re-
produce photographs in their publications in the interests of
national security, provided such publications are not given
general public distribution but are restricted to intelligence
users within the Government. It may be wise to attempt to go
a step beyond that to include the cases where the Graphics
Register disseminates the photograph to the intelligence ser-
vices of IAC agencies who in turn reproduce it in intelligence
publications.
8. Where a single copy of the photograph is taken or
single copies are in turn furnished to the IAC agencies, the
doctrine of fair use might reasonably apply. The problem be-
comes acute only when the photograph is reproduced in editions,
even though the dissemination is limited to twenty-five people.
Where a copyrighted photograph is distributed under the doc-
trine of fair use, it should contain a notice to the distribu-
tee that the photograph is subject to copyright and cannot be
reproduced without permission from the copyright owner.
9. Further problems arise where the photograph originates
abroad. If the creator is a citizen of a country which enjoys
reciprocal copyright relations with the United States, legal
protection must be furnished. If, however, the photograph is
of Russian origin, it can be reproduced, as there are no copy-
right relations between this country and the USSR. However,
this does not solve possible problems if the Russian photograph
is obtained from someone who has entered into contractual re-
lations for its distribution which might make unauthorized
distribution a violation of the contract.
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10. The problem must also be considered where agents
abroad, in connection with their work, deliver photographs as
a part of their report. The title to these photographs should
be considered in any contract for hire which is entered into.
WALTER L. PFORZHEIMER
Assistant General Counsel
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