Old Newspapers and old photos

'Is it legal', 'can I do this' type questions and discussions.
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AndyJ
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Re: Old Newspapers and old photos

Post by AndyJ » Thu Jul 12, 2018 11:12 am

Hi again ATMOSBOB,

I would certainly agree that where a reporter writes something which the speaker didn't actually say then, provided that the misattributed part is substantial enough, the reporter (or more likely his employer) will be able to claim copyright in that part of an article or news story, which really would be a work of fiction! An example of the opposite of this was the famous remark attributed to Sir Harold Macmillan in 1957: "You've never had it so good". The press handout of the speech actually used the words ".. most of our people have never had it so good", although there is some debate about whether he actually spoke these words when giving the speech itself.

You asked about other caselaw. There doesn't seem to be much which directly relates to this specific aspect of newspaper reports of speeches. However there are a couple of cases involving musical transcription which include many of the same factors. The first is called Robertson v Lewis [1960] RPC169, and it is significant because the judge in the case, Mr Justice Cross, expressed the opinion that Walter V Lane was no longer good law, and that a shorthand writer was not entitled to copyright in a work which was dictated to him/her, or was noted down from an extempore speech. This view was on the grounds that Walter v Lane predated the 1911 Copyright Act (see Section 1) which introduced the word 'original' into UK copyright law. This is significant because of what was said, when the Walter v Lane case went to the House of Lords, by the then Lord Chancellor, Lord Halsbury:
The Court of Appeal introduces the words "original composition" as if those were the words of the statute [the Copyright Act 1842] ... I am compelled to point out that such words are not to be found in the statute ... The judgment of the Court of Appeal is entirely based on the thing protected being an original composition in the sense that the person who claims the protection of the statute must not have obtained his words or ideas from somebody else, but must be himself an original author in the sense which the word is generally used in respect of literary composition ... The implied proposition is that the only person who could obtain copyright in his speech is the person who spoke it, and that the word "original" must by construction be read into the statute - that the true analogy is the true and first inventor of patent laws. I think the analogy is a false one. I do not find "original" in the statute, or any word which imports it, as a condition precedent, or makes originality of thought or idea necessary to the right
Thus the fact that parliament expressly inserted the word 'original' into the 1911 Copyright Act may be viewed as an intention to reverse the view taken by the Lord Chancellor in Walter v Lane. However, in fairness, there have been other, more recent decisions, such as Express Newspapers plc v News (UK) Ltd* [1990] FSR 359, in which the courts have accepted that Walter v Lane is still good law. But it is worth stressing that at no stage in the Walter v Lane case was the Times newspaper claiming exclusive copyright in the speeches of Lord Roseberry. The copyright claimed was purely in the reporter's written version of the speeches.

The second music case was Hyperion Records Ltd v Sawkins [2005], where the court, effectively, endorsed the Walter v Lane decision. This was a case about the extensive research and expertise of the musicologist Dr Lionel Sawkins in creating modern playable versions of works by the seventeenth century French composer Michel-Richard de Lalande. Copyright in Lalande's work had lapsed, but Dr Sawkins successfully claimed copyright in his revised version of the works due to his skill and judgement in transcribing and researching the original manuscript versions which were not in the form of modern musical notation.

But as already mentioned in an earlier posting, the Infopaq decision by the CJEU has effectively set a new standard test for originality, namely the intellectual creation of the author. Some authorities claim this has signalled the end of the skill and labour doctrine, others that it has merely refined the test a bit.


* That case had nothing to do with copyright, per se.
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Victoria
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Re: Old Newspapers and old photos

Post by Victoria » Fri Jul 13, 2018 4:43 pm

Hello!
I've seen correspondence about the Daily Sketch.
I want to use a photograph which I have which was originally published in the Daily Sketch. Since the paper is extinct, have you any idea who owns the copyright - The photo dates from 1942. Do you think I would be ok to use it in a book so long as I give a credit to the Daily Sketch. I know that the British Library has microfilm of the Daily Sketch but does that mean they own the copyright...
Thank you!!

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AndyJ
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Re: Old Newspapers and old photos

Post by AndyJ » Fri Jul 13, 2018 7:57 pm

Hi Victoria,

The Daily Sketch title is owned by DMG Media, owners of among other titles, the Daily Mail. That said, according the British Newspapers Archive web site, all inquiries about using images from the Daily Sketch should be addressed to the Mary Evans Picture Library.

However, since the photograph you are interested in dates from 1942, it is no longer in copyright. This is because at the time the photograph was taken, the law said that copyright in a photograph lasted for 50 years from the date it was made, meaning that in this instance copyright would have lapsed on 31 December 1992. Although there were later Copyright Acts, in 1956 and 1988, which changed the way photographs were treated for copyright purposes, they did not have retrospective effect on any photograph made before 31 December 1945. That applies to the original photograph. You may find that where someone has made a digital reproduction of the photograph they may well claim copyright in the digital image which, since it will be more recent, is still in force. If you search elsewhere on these forums, you can find a more detailed explanation why such claims to a new copyright are probably invalid.

And with respect to papers held in the newspaper archives of the British Library, where copyright still applies, it usually remains with the original owners, ie the publishers of the respective titles or their heirs. However in some cases, such as the Daily Sketch, the intellectual property rights may have been sold off to a third party to exploit. The British Library in partnership with FindMyPast have negotiated a licence with the newspaper industry to digitize the collection and make it freely available to the public for private research purposes. Anyone wishing to use the digital archive for commercial purposes is expected to get a licence from the appropriate copyright owner. As far as I am aware the Daily Sketch has not yet been digitized.
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

Victoria
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Re: Old Newspapers and old photos

Post by Victoria » Mon Jul 16, 2018 10:36 am

Hi Andy
That is incredibly helpful thank you. Since I possess the photograph (which has my father in it!) and am not relying on the British Library archive - from what you say it looks like it is ok to use.
What a helpful website this is.. I shall definitely keep logging in !
Victoria

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