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Use of old postcards for charity calendar

Posted: Tue May 21, 2013 8:34 am
by adrievdl
Our local initiative run by volunteers wants to publish a calendar in aid of registered charities in our UK village. This 'then and now' style calendar will feature new photos we will commission alongside postcards and glass negatives from 1898 -1920.

We know that the photographer lived in the village at the time. Several companies are selling framed images of the village by the same photographer, made around 1907, over which they claim copyright.

Should we contact all of them to double-check if they can back up their copyright claim for the specific images we plan to use, or should we assume that the copyright of the old postcards expired under clause 21 of the 1911 Copyright Act? The latter is descibed on this site as putting a 50 year expiry date on postcards from the date on which the negative was produced on which the postcards are based. This was not amended by the 1971 Act.

I'm having great difficulty explaining to other volunteers how anyone (from outside the village) could have copyright on images of their property, let alone images taken by a local resident over 100 years ago. But as this is for charity, we can't risk expensive legal claims.

Posted: Tue May 21, 2013 11:03 am
by AndyJ
Hi Adrievdl,
Yes you are right that Section 21 of the 1911 Copyright Act would apply in this case, meaning that photographs created in 1907 would have come out of copyright on 1 January 1958. However another Copyright Act was passed in 1956 and so it is necessary to check whether this might have amended the original term.
Fortunately it didn't. Paragraph 2 of Schedule 7 of the 1956 Act says:
In relation to any photographs taken before the commencement of section three, subsection (4) of that section shall not apply, but, subject to subsection (3) of that section, copyright subsisting in the photograph by virtue of that section shall continue to subsist until the end of the period of fifty years from the calendar year in which the photograph was was taken, and shall then expire.
You don't need to worry about what subsections (3) and (4) said, because this is a very long-winded way of saying the provisions of the 1911 Act continue to operate for photographs created before the 1956 Act.
As for the publishers of the postcards, in my experience they tend to stick a copyright notice on things without necessarily understanding the legal details, because basically it is not an offence to make a false claim in this way, so they have nothing to lose.
On that basis you should be perfectly OK to carry on with using these 1907 photographs in your project.

Posted: Mon Oct 21, 2013 2:38 pm
by ronS
That answer also helps me with a query I have.

Can I ask a couple of supplementary questions, though?

1) Am I correct in thinking then that a photograph taken in 1955 is now out of copyright but one taken in 1957 will be subject to photographer's death +70 years?

2) In a separate case, unlike the OP I do not have an original photograph/negative from which to create my book/calendar or whatever. As the subject picture is now out of copyright, can I take one of the framed prints/modern postcards that he mentioned and copy that?

Posted: Mon Oct 21, 2013 4:05 pm
by AndyJ
Hi Ron,
Assuming that the photographs were also published in 1955, (or at least, before 1 June 1957 when the 1956 Copyright Act came into force) then yes the photographs are no longer in copyright. There are separate rules for unpublished works.
So your assumption in (1) is correct (again only as far as published photographs are concerned) for photographs made after 1 June 1957, although the term was initially the author's lifetime plus 50 years. This was changed to plus 70 years in January 1996 ( by the Duration of Copyright and Rights in Performances Regulations 1995) and applied to any works then in copyright, which since this was within 50 years from 1 June 1957, included virtually all works made after the 1956 Copyright Act came into force.
As for question (2), you need to be absolutely certain that the image has not been altered in any way by the postcard publisher and is out of copyright, and having established those two things, you should only copy the image and nothing else from the postcard etc. The postcard publisher may well own rights in an altered (ie edited) version of the original photograph if the alterations were made with permission and entailed sufficient new artistic input to qualify as an adaptation, with its own new copyright. Also any text or other information or adornment such as a frame around the image will attract copyright in the typographical layout of the published edition and you should therefore avoid copying any such details.
Ideally I would suggest that before copying anything from a third party, you appraise them of the copyright situation regarding the original image and seek their permission to copy their 'copy' on the basis that it is in the public domain. But that assumes they are prepared to accept your explanation, which they may fail to do and in which case you may well bring unwanted strife upon yourself. I leave it to you to decide which is the more prudent course!

Posted: Mon Oct 21, 2013 4:11 pm
by ronS
Many thanks for such a rapid response.

As ever very clear and prudent advice.