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Publishing Old Photos

 
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Bill Scott
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PostPosted: Sat Feb 05, 2011 5:20 pm    Post subject: Publishing Old Photos Reply with quote

I have a number of old family photos, given to me by various people, that I want to publish. They range in date from 1904 to 1939. The people who gave me the photos do not know the identity of the photographers so as far as I am concerned the copyright holder is unknown.

It is my understanding that provided I have made reasonable endeavours to identify the copyright owner and this has been unsuccessful, I can proceed on the basis that copyright expired 70 years after each photo was taken. So anything pre 1940 should be OK. Obviously there is a remote chance that a copyright holder later identifies himself but that doesn't affect my right to publish in the first place. Is this right? Question
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AndyJ
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PostPosted: Sat Feb 05, 2011 8:14 pm    Post subject: Reply with quote

Hi Bill,
The life of copyright in a photograph is slightly more complicated than you have described. Since you are talking about pictures created during the first half of the twentieth century, it's worth doing a quick summary of the 1911 Copyright Act* which preceeded the current 1988 Act (and the 1956 Act). In that earlier Act copyright existed for a period of 50 years from the end on the year in which the author (ie photographer) died, or if the work had been published, then 50 years from the date of publication. It was possible under the 1911 Act for someone else to obtain a compulsory licence to use the copyright work, 25 years after the death of the author. (If I can find out a bit more about that last provision, I will publish it tomorrow.)

(The 1988 Act increased this period after the death of the author to 70 years for works created after 1989 (with a couple of exceptions) and did away with the distinction between published and unpublished works, at least as far as photographs were concerned - however that's not relevant here).

Fortunately you know the dates of your photographs, even if you don't know the authors. As you have described them as family photographs, I'll assume they haven't been published (I won't go into the technical detail about what constitutes publication now). So in that case, the term is based on the year of death of the author. Realistically with any pictures from around 1925 onwards, the author could still be alive. And for any author who you are fairly certain is dead, they would have needed to have died before 1960 for thier pictures to be out of copyright.
You also mention about taking reasonable steps to track down the copyright owners. Unfortunately the 1988 Act applies here.
Edit: See my second reply below for the correct details
s.57 of the Act describes the level of dilligence need to establish that an author is unknown.
Quote:
57 Anonymous or pseudonymous works: acts permitted on assumptions as to expiry of copyright or death of author.

(1) Copyright in a literary, dramatic, musical or artistic work is not infringed by an act done at a time when, or in pursuance of arrangements made at a time when—

(a) it is not possible by reasonable inquiry to ascertain the identity of the author, and

(b) it is reasonable to assume—

(i) that copyright has expired, or

(ii) that the author died 70 years or more before the beginning of the calendar year in which the act is done or the arrangements are made.


All of that is what the law says. But here we are talking about family memorabilia, so I think a degree of common sense can be applied. If you have a rough idea who might have taken the photograph, or who is in it, and their heirs are contactable, try and get their agreement for your project; afterall they are the people most likely to object. You don't say how you intend to publish these photographs. If it is on the web, then put a small notice on the site to the effect that if anyone owns the copyright and wishes to object to their use, they should contact you and you will immediately remove the picture in question. If you're publishing in print, this could also apply but obviously you can't recall printed copies as easily as a website can be updated. By following those steps I think you would be showing good faith and shouldn't run into any major problems.

* The terms of 1911 Act were applied retrospectively to photographs etc made before 1911.
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Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007


Last edited by AndyJ on Sun Feb 06, 2011 12:22 am; edited 1 time in total
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Bill Scott
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PostPosted: Sat Feb 05, 2011 10:22 pm    Post subject: Reply with quote

Hi Andy

Thanks for your message and comprehensive reply.

There should be no problem getting the permission to publish from the current photo owners since they gave me the photos specifically for that purpose. However, they don't know the identity of the photographers since the photos were generally taken at work - ie shop girls or van drivers, but they are all snapshots and not official photos.

I was aware of the life of the copyright holder plus seventy year rule, but if the copyright holder is unknown it is impossible to work this out. I thought I had sorted this out, since several law firm web pages state that in this circumstance the 70 years runs from the date the work was created. This appeared to be confirmed in section 5 of the The Duration of Copyright and Rights in Performances Regulations 1995 which states that “Copyright expires at the end of the period of 70 years from the end of the calendar year in which the author dies, subject as follows.: If the work is of unknown authorship, copyright expires at the end of the period of 70 years from the end of the calendar year in which the work was made, or if during that period the work is made available to the public, at the end of the period of 70 years from the end of the calendar year in which it is first so made available.

However another lawyer told me that this was now out of date and that everything was now life of author plus seventy years.

To confuse matters even more other solicitors’ sites said that copyright had expired on all pre 1945 photos, unless they were revived through copyright in other EU countries. The implication was that this was not automatic, but I wasn’t clear on what conditions were necessary for revival. Then it was said that revival is weak copyright and that copyright holders cannot withhold approval to publish.

I don’t know if any of this is rubbish but that’s where I got to before I asked my question.

There is no doubt that I am dealing with unknown authors and if life plus seventy years is now the only definition of copyright duration, the situation becomes impossible.
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AndyJ
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PostPosted: Sun Feb 06, 2011 12:06 am    Post subject: Reply with quote

Hi Bill,

In getting involved in all the provisons 1911 Act in my last reply, I have inadvertently quoted the wrong section to you. The relevant section is s12 which says
Quote:
12 Duration of copyright in literary, dramatic, musical or artistic works.

(1) The following provisions have effect with respect to the duration of copyright in a literary, dramatic, musical or artistic work.

(2) Copyright expires at the end of the period of 70 years from the end of the calendar year in which the author dies, subject as follows.

(3) If the work is of unknown authorship, copyright expires—

(a) at the end of the period of 70 years from the end of the calendar year in which the work was made, or

(b) if during that period the work is made available to the public, at the end of the period of 70 years from the end of the calendar year in which it is first so made available,

subject as follows.

(4) Subsection (2) applies if the identity of the author becomes known before the end of the period specified in paragraph (a) or (b) of subsection (3).

(5) For the purposes of subsection (3) making available to the public includes—

(a) in the case of a literary, dramatic or musical work—

(i) performance in public, or

(ii) communication to the public;

(b) in the case of an artistic work—

(i) exhibition in public,

(ii) a film including the work being shown in public, or

(iii) communication to the public;

but in determining generally for the purposes of that subsection whether a work has been made available to the public no account shall be taken of any unauthorised act.

So yes in the case of your unpublished photographs, the term is 70 years from the date they were made, so anything made before 1940 is out of copyright (unless it is subject to Crown Copyright which I doubt). Apologies for making a mountain out of a molehill!
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Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007
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Bill Scott
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PostPosted: Sun Feb 06, 2011 5:06 am    Post subject: Reply with quote

Hi Andy

That's absolutely great

Thanks

Bill
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