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Reproduction fees applied after?

 
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BenV
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PostPosted: Fri Feb 20, 2015 8:42 pm    Post subject: Reproduction fees applied after? Reply with quote

Hi guys and girls

I've had a quick look through the forum but am in a situation that I cannot find covered sufficiently.

Recently we filmed some photos from 1912 which are in the public domain at a museum (even the museum acknowledges they are PD).

As far as I understand photographic Copyright UK is currently 50 years since photo was taken. Even in the USA they are PD as would be Life of author plus 70 years?

Now they say for reproduction they want £200 - £300 for each photo.

Extortion aside they are not reproducing anything as we filmed them ourselves with their permission and did not get anything reproduced by them.

If we had asked them for digital copies I understand they can charge whatever they like to deliver a copy to us - but can they legitimately and are they legally entitled to receive reproduction fees for a copy they did not reproduce?

If this is the case could it mean once we bought a copy of PD image or film clip (via reproduction fee) that on another production we woukd have to pay again???

Sincerely bemused

Ben
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AndyJ
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PostPosted: Fri Feb 20, 2015 10:40 pm    Post subject: Reply with quote

Hi Ben,

I just want to be sure I have this right. The museum is in the UK and it is the museum who are now asking for reproduction fees? If I have that correctly then since these photographs are almost certainly in the public domain (if this was in the USA, then anything made before 1923 is automatically in the public domain) then no-one can demand fees based on copyright, as copyright no longer applies to them.

However it may be that the museum is demanding an access or facilities fee, which would be similar to the fee they might charge for providing a digital copy of the photographs. If this is so then it should be covered by the museum's terms of entry or standard business terms. As the putative owner of the photographs they are entitled to decide the terms on which someone has access to their holdings, although I suggest that £200-300 is excessive. This would technically be a contractual matter, ie one based on the terms of entry. However if they have specifically referred to a 'reproduction' fee, then you should certainly query this with them.

Unfortunately even the staff of museums are not always that clued up on copyright law and they may well be quoting some sort of general rule, which in fact does not apply when a work is out of copyright.

My second assumption is that you wish to use this video for some commercial purpose, and this is what has prompted the museum to raise the issue of fees, presumably some time after your visit.

So get the museum to clarify exactly on what grounds they are demanding these fees, and if they maintain it is to do with copyright, then you may need to involve a solicitor to impress upon them the error they are making. If however they are merely following their standard commercial access policy, and they can point to where these terms were readily available for you to view prior to your making the video, then you may need to negotiate. However, based on what you have said here, they appear to be on shaky ground, even if they have such a policy, if they did not draw your attention to it at the time your obtained permission to film. It would probably be seen as an unfair contractual term (and therefore the presumed contract might be unenforceable) because your attention was not drawn to the term (which is non-obvious) at the time. However the majority of the Unfair Contract Terms Act 1977 does not apply when both parties are acting a commercial capacity, so if you were acting other than as a private individual when you made the film, you will need to consult a solicitor over the best way to resolve the contractual dispute.
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BenV
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PostPosted: Sat Feb 21, 2015 10:56 am    Post subject: Reply with quote

Thanks for the quick response Andy and yes to your queries all in the UK. The programme whilst not officially a commercial product may eventually be sold worldwide at a later date but the photos in question are a tiny part of the 30 minutes - perhaps 8 to 10 seconds.

I see now how the access might be charged for however as the clips of the photos formed part of an interview with museum staff and the topic of discussion WAS the photos I'm a bit taken aback that this wasn't pointed out in the first instance. I'll look into it a bit more and what their terms are actually pertaining to.

On my second part of the question. Given that you suggest they have the right to charge for access posthumously especially in the case of a commercial product - could they now demand more fees or ban the use of the photos if we intended to use them in another production?

If yes that would essentially mean this is a major caveat to using public domain works and a way for owners or holders of PD items to charge for their use and control it which the latter is not in th spirit of PD.

Thanks again

Ben
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BenV
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PostPosted: Sat Feb 21, 2015 12:01 pm    Post subject: Reply with quote

Apologies for tagging another question on but one other aspect someone just mentioned to me was that the museum might own the "reproduction rights" or own the "licence" for when and where the images are used? Is this legal and enforceable on a truly public domain image?
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AndyJ
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PostPosted: Sat Feb 21, 2015 12:11 pm    Post subject: Reply with quote

Hi Ben,
I think it is probably worth clarifying that if these photographs are in the public domain, then the issue to be resolved has nothing to do with copyright, but everything to do with access. The issue is the same as you or I being charged to enter a National Trust property which was previously left to the nation by its former owner. The charges (or in your case, the fees) are raised in order to cover administrative costs - which is why I said I thought £200-300 seemed excessive.

Ultimately, the owner (or curator) of any object can set their own rates for allowing access to that object and the normal rules of supply and demand should operate. But I find it odd that the museum have gone along with this interview, presumably in full knowledge of what it was intended for, without having first negotiated the fees.

In theory, if you have the footage and are no longer on the premises, it is up to the museum to chase you and if you refuse to pay, for them to consider litigation. That way the dispute can be tested in court or at arbitration, where I think you have a very good chance of winning because the museum failed to make it clear from the outset that there would be fees involved. However that is an observation based on what you have told us here, and you would need to get proper legal advice before going down that route, which is clearly outside the scope of what we try to provide here on CopyrightAid.

If you discover that the museum are basing their demand for fees on a mistaken understanding of copyright, then again you could walk away and leave them with the decision over litigation, which they will soon discover they cannot win, based on the facts as provided here.
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BenV
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PostPosted: Sat Feb 21, 2015 12:25 pm    Post subject: Reply with quote

Ok thank you again Andy. I'll see if the museum can come to some mutual agreement as I am not averse to donating (a reasonable service fee) to the upkeep of artefacts and archives that we use (or prior agreement for location/access fees) but simply wanted a clearer understanding as to the legal responsibilities of both parties when dealing with this particular situation as it was certainly not budgeted for. As many words of "rights" had been banded around in conversation (but nothing in writing) I was getting a bit lost!

Thanks for responding on a weekend too! Hope you have a good one.

Ben
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AndyJ
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PostPosted: Sat Feb 21, 2015 12:31 pm    Post subject: Reply with quote

Just seen your additional question.
Both of the terms "reproduction rights" and "licence" would only be applicable if copyright subsisted in the photographs, which I am reasonably sure cannot be the case. The copyright law which applies to photographs made before 1 June 1957 is the 1911 Copyright Act. This Act has a specific section which deals with photographs, namely s 21 which says:
Quote:
21. The term for which copyright shall subsist in photographs shall be fifty years from the making of the original negative from which the photograph was directly or indirectly derived, and the person who was owner of such negative at the time when such negative was made shall be deemed to be the author of the work, and, where such owner is a body corporate, the body corporate shall be deemed for the purposes of this Act to reside within the parts of His Majesty's dominions to which this Act extends if it has established a place of business within such parts.
In other words whether or not a photograph has been published is immaterial for the purposes of determining the term of the copyright. So even if the museum wishes to assert that these are unpublished photographs, if they were made in 1902 then there is no copyright remaining, and it has hasn't existed since 1 January 1953.
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BenV
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PostPosted: Sat Feb 21, 2015 2:42 pm    Post subject: Reply with quote

Ok that's interesting. I will now go and see if they will respond in writing as to the exact nature of these fees.

Cheers Andy
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