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Album Art and Editorial Licensing Question

 
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BAM42
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PostPosted: Thu Apr 09, 2015 10:05 am    Post subject: Album Art and Editorial Licensing Question Reply with quote

Hi there - I have a question regarding the editorial reproduction rights surrounding album art/LP covers.

I have a collection of over 100 LPs/albums spanning the 1930s up to the 1990s - with a majority being 1950s/60s era. Would I be restricted in any way should I decide to scan the covers and license the digital files for editorial use? - e.g. in books, magazines, documentaries (but not on products ie posters, t-shirts etc.)

Any info gratefully received, particularly any bits of related legislation I can use to back it up if needed. I am in the UK btw - but would be looking to license images worldwide.
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AndyJ
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PostPosted: Thu Apr 09, 2015 1:42 pm    Post subject: Reply with quote

Hi Bam,
The artwork on these album covers is almost certainly all still in copyright. Therefore copying them (even by digitizing, which amounts to the same thing) would infringe the copyright unless it is done for strictly personal use, which is permissible under section 29 of the Copyright Designs and Patents Act 1988:
Quote:
29 Research and private study.

(1) Fair dealing with a literary, dramatic, musical or artistic work for the purposes of research for a non-commercial purpose does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement.

(1B) No acknowledgement is required in connection with fair dealing for the purposes mentioned in subsection (1) where this would be impossible for reasons of practicality or otherwise.

(1C) Fair dealing with a literary, dramatic, musical or artistic work for the purposes of private study does not infringe any copyright in the work.

(2) Fair dealing with the typographical arrangement of a published edition for the purposes of research or private study does not infringe any copyright in the arrangement.

(3) Copying by a person other than the researcher or student himself is not fair dealing if—
    (a) in the case of a librarian, or a person acting on behalf of a librarian, he does anything which regulations under section 40 would not permit to be done under section 38 or 39 (articles or parts of published works: restriction on multiple copies of same material), or

    (b) in any other case, the person doing the copying knows or has reason to believe that it will result in copies of substantially the same material being provided to more than one person at substantially the same time and for substantially the same purpose.
(4) It is not fair dealing—
    (a) to convert a computer program expressed in a low level language into a version expressed in a higher level language, or

    (b) incidentally in the course of so converting the program, to copy it,
(these acts being permitted if done in accordance with section 50B (decompilation)).

(4A) It is not fair dealing to observe, study or test the functioning of a computer program in order to determine the ideas and principles which underlie any element of the program (these acts being permitted if done in accordance with section 50BA (observing, studying and testing)).

Any use beyond the purposes of research or private study would not be fair dealing, and any commercial use would invalidate the research purpose, so again invalidating the fair dealing principle.

In order to do what you want to do, you would need to get permission from the current rights holder in each case, which is likely to be the record company, or its successor in title if the original record company has ceased to exist. Given the fact that music rights are valuable commodities, it should be relatively easy to discover the current owners of the intellectual property rights by contacting the copyright collecting society for recorded music, Phonographic Performance Ltd. (PPL). Even if they don't represent the actual record company or successor, they should be able to direct you to the correct rights owner.
If after a diligent search you are unable to discover or locate the current rights owner you can request an 'orphan works' licence from the Intellectual Property Office for works which originated in the UK. More details on this process here.
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BAM42
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PostPosted: Thu Apr 09, 2015 1:53 pm    Post subject: Reply with quote

Thanks for your response Andy - does the album art count as 'design' or 'art' and therefore does the copyright attached to it expire after a certain time? For example 70 years after the creator's death as with photography, or is it 25 years for design/artistic works???
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AndyJ
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PostPosted: Thu Apr 09, 2015 4:10 pm    Post subject: Reply with quote

Hi Bam,
Sorry, yes, I should have qualified what I meant by artistic work. It would indeed be a copyright work and so the duration of the copyright is the life of the author or artist plus 70 years. That's why it is unlikely that any but the earliest works (from the 1930s) are out of copyright. If you are certain that the author of the sleeve died prior to 1944, then the copyright may have expired, as prior to 1995, the term in the UK was the author's lifetime plus 50 years, but it becomes considerably more complicated if the sleeve was first published elsewhere within Europe, especially if the country of origin was Germany or Spain. US copyright introduces another level of complexity.
I imagine the early 'LP's were all shellac 78s with brown paper sleeves. But even if there is no artwork, like the one below, there could be copyright in the text which counts as a literary work.

Image Credit: Hungarian Pathé Record by Mediatus This work is licensed under a Creative Commons Attribution 3.0 International License.
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BAM42
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PostPosted: Fri Apr 10, 2015 1:16 pm    Post subject: Reply with quote

Thanks for clarifying. I'm still a bit baffled though - when I search 'LP cover' in picture libraries e.g. on Alamy I came across hundreds of examples of scanned album art, some of it not even that old really. Would they have had to get the permission from all the rights holders in each case in order to make the scans available for editorial licensing?
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AndyJ
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PostPosted: Fri Apr 10, 2015 3:41 pm    Post subject: Reply with quote

Hi Bam
Theoretically yes, but I'm sure quite a few of the images you've found don't not have permission, and because either the owner isn't actively looking for infringements, or is not concerned about enforcing their rights, and so the images go unchallenged.
It's a risk, but not an uncommon approach, typified by the maxim: "If it's a good idea, go ahead and do it. It's much easier to apologize than it is to get permission." -- Grace Hopper (1906 – 1992).
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BAM42
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PostPosted: Fri Apr 10, 2015 3:44 pm    Post subject: Reply with quote

Thanks Andy. Seems odd that a well established company would take that risk. So if they hadn't cleared the rights before hand - then this is in actuality a copyright infringement? ie licensing the scans for editorial use?
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BAM42
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PostPosted: Fri Apr 10, 2015 3:47 pm    Post subject: Reply with quote

sorry forgot to add... or is it down the the licensee to seek permissions?
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AndyJ
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PostPosted: Fri Apr 10, 2015 6:18 pm    Post subject: Reply with quote

Hi Bam,
I'm sure that, as a reputable company, Alamy does its best to ensure contributors own the rights to the images they submit, but ultimately Alamy will rely on their contributor terms and conditions which amongst other things requires a contributor to warrant that:
Quote:
4.2 The Copyright Owner is the sole owner free from any third party rights of the entire copyright and all other intellectual property rights throughout the World in the Image except for the Prior Rights (if any);

"Prior Rights" means any previous licence or other right granted for the use of that Image. Where an Image has previously been Licensed by Alamy and then deleted from the System, Prior Rights include those previous Licences by Alamy.

4.3 Where the contract is entered into by an agent on behalf of the Copyright Owner the agent has the full authority of the Copyright Owner to enter into this contract.

4.4 You hold the rights to grant, market, license, sell or assign all rights in the Images, including but not limited to the rights to grant reproduction rights in the Images for digital media, print, motion picture, television, video, cable, computer, radio, cartoon, merchandising and/or Internet, to make the Images available on electronic equipment, and other similar media or via the Internet, and to include them in any catalogue, Internet sites or marketing in any form ("the Rights"); Except for the Prior Rights (if any) there is not and will not during the term of this contract be any fetter on Alamy licensing each Image to a Customer to the fullest extent possible.

Paragraph 5 of the terms and conditions indemnifies Alamy against any claims from third parties.

And no, it isn't the responsibility of a licensee to check per se, although it would be sensible to do so since Alamy's Licence Agreement expressly does not indemnify the licensee from claims of copyright infringement
Quote:
5.2 Alamy makes no other warranty, express or implied, including, without limitation, any implied warranties of merchantability or fitness for a particular purpose. Neither Alamy nor its contributors shall be liable to you or any other person or entity by reason of any representation (unless fraudulent) or any implied warranty, condition or other term, or any duty at common law, or under the express terms of this Agreement for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the negligence of Alamy, its servants or agents or otherwise) which arises out of or in connection with this Agreement, even if Alamy has been advised of the possibility of such damages, costs or losses. Alamy’s maximum liability arising out of or in connection with your use of or inability to use the Image/Video (whether in contract, tort or otherwise) shall, to the extent permitted by law, be limited to five (5) times the value paid by you for the relevant Image/Video.


While these terms may provide Alamy some wriggle room with regard to their obligations to the licensee or end user, they would offer no protection against a claim by the legal owner of copyright who would be entitled to sue Alamy both on the grounds of possessing or dealing with infringing copy (section 23) and also for authorising another to carry out an infringing act (section 16(2)). Obviously were this to occur, Alamy themselves would in turn invoke paragraph 5 against the contributor. There would be a good case for a licensee in such circumstances, maintaining that he/she had no reason to assume the images were supplied without the correct permissions, and so they might avoid being liable for damages. (see Section 97(1)).

Incidentally, you have mentioned editorial use a couple of times. The actual use of the images is immaterial. It is infringement whether it is done for commercial purposes or not, with the only exception being the fair dealing for the purposes of research and private study I referred to earlier. I'm not sure if the reference is because 'editorial use' appears in a few places in Alamy's terms and conditions or whether it is possible that you are confusing copyright law with the right of publicity laws which apply in some US states and a few other countries, where a person's image rights are not (normally*) infringed by editorial use of an image of them.

* In a number of jurisdictions a right to privacy may outweigh a claimed public interest in publishing an image of a person for editorial purposes, eg Weller v Associated Newspapers Ltd [2014] EWHC/QB 1163.
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BAM42
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PostPosted: Thu Apr 16, 2015 4:58 pm    Post subject: Reply with quote

Thanks for the details. When does album art go out of copyright though?
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AndyJ
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PostPosted: Thu Apr 16, 2015 10:12 pm    Post subject: Reply with quote

Hi bam,
I thought I had answered that question, in part at least, in my posting at 4.10pm of 9 April.
So here's a longer version:
If the artwork was created in the UK, the basic rule is 70 years from the end of year in which the artist died. If the artist died before 1944 then the work is likely to be out of copyright under UK law, because the old term which applied then was 50 years after death, and the new +70 year rule only applied from 1995.
For works that originate from the US the rules are incredibly complicated (see this website for instance), but the good news is that as long as your use of the digitized artwork, and you yourself, remains in the UK, then the maximum term which will apply is the UK maximum even though the US term may be longer. However if a copyright owner in the USA decided you had infringed his copyright (because the US term meant the work was still in copyright there but not in the UK) you could face a civil legal action in the US if you ever went there on a visit. So long as you remain outside the jurisdiction of the US courts you can ignore their copyright terms.
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