Old photos/postcards

'Is it legal', 'can I do this' type questions and discussions.
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pilax23
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Old photos/postcards

Post by pilax23 »

I've noticed that some companies/individuals who sell photos/postcards claim copyright by the fact of owning the image, even though they did not create the image. I'm talking about images from the turn of the 19th/20th century. They then ask a licence fee for reproduction. Can they in fact do this? is there anything to prevent me reproducing the image? Very often there are multiple copies of these old postcards. If every owner claimed copyright there would be multiple copyright holders. Advice please.

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AndyJ
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Re: Old photos/postcards

Post by AndyJ »

Hi pilax,

Although I can't be sure it applies in your particular case, I suspect that what the copyright claims relate to are the digital versions of the original postcard photographs, As you surmise, it is highly unlikely that any copyright will remain for the originals. If this is the case, then these sellers are merely copying what many museums and art galleries do when they sell reproductions of old items in their collections and often claim copyright in these new products, such as posters, calendars and postcards.

Legally speaking it's a grey area because we haven't had a case in the courts which has ruled on the issue. However many academics, lawyers and other commentators including the Government's own Intellectual Property Office (see page 3 of this Copyright Notice) are of the opinion that copyright is unlikely to exist in such cases. You can read more about this in another thread on this forum, where the same issue is discussed.

Unfortunately it is not illegal under copyright law to make a false claim of copyright ownership, and therefore the only way to challenge such behaviour is to ignore the claim, provided that you are sure that the original image cannot still be in copyright, and see if the seller tries to do anything to support his/her claim.
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pilax23
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Re: Old photos/postcards

Post by pilax23 »

Many thanks for that. I have noticed browsing your excellent forum that it would seem that any photograph taken before 1945 is out of copyright. Is that correct and would it apply if a photograph (pre-1945) has been published subsequent to that date?

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AndyJ
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Re: Old photos/postcards

Post by AndyJ »

Hi pilax,

As you are probably aware if you have seen some other posts here, copyright in photographs taken before 1 June 1957, when the 1956 Copyright Act came into effect, are governed by section 21 of the Copyright Act 1911. This applied a standard 50 year term to all photograpghs, irrespective of whether they had or had not been published. The 1956 Act did not alter this term, for any photograpghs which were in existence and protected at the time the newer Act came into force. In other words a photograph taken on 31 May 1957 would continue to be protected for 50 years and the copyright would then end. Photographs made on 1 June 1957 and later were then subject to a copyright term of the lifetime of the author plus 50 years from the end of the year the author died. However, in 1995 the UK was obliged to introduce changes to conform with European law. This increased the post mortem element to 70 years and it also had retrospective effect on any photograph* which was still in copyright on 1 July 1995. In other words any photograph created before 1 January 1945 would not be affected because copyright in it would have ended on 31 December 1994.

In 1996, further Regulations necessitated by EU law added more complication with respect to unpublished images from any period even though they had fallen out of copyright. The new rules said that anyone who legally published a previously unpublished photograph, earned themselves a 25 year period of protection known as 'Publication Right', which is very similar in its operation to copyright, except that it is owned by the publisher and not the author or the author's heirs. To date the extent of this provision has not been tested in court here in the UK.

So to return to your question, generally speaking any photograph taken and published in the UK before 1945 will now be out of copyright. Anything taken before 1945 and published before 1993 will be free of both copyright and publication right. One exception to the general rule is that anything to which Crown or Parliamentary Copyright applies will be subject to different rules.


* There are some special rules affecting works which were protected for a greater length of time in another European Economic Area member state on 1 July 1995 which don't really concern us here.
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pilax23
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Re: Old photos/postcards

Post by pilax23 »

Thanks once again. Now much clearer.

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Re: Old photos/postcards

Post by pilax23 »

This is typical of what I was referring to: "Note: these images are provided for personal and private use only. All purchased images remain copyright of X You should not make your own additional copies and pass them on in any way". These are clearly not the work of X as they are photos taken more than a 100 years ago.

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Re: Old photos/postcards

Post by Nick Cooper »

The 1956 Act introduced a term of 50 years from publication for photographs. It was only the 1988 CDP Act that introduced photographer's life plus 50 years, but it was explicitly stated that existing photographs taken before it became law (on 1 August 1989) were still covered by 1956 Act terms (and by implication 1911 Act for pre-1957 photographs). These transitional savings are still extant in the "current" form of the 1988 Act. Unpublished photographs taken between 1 June 1957 and 31 July 1989 are now 2039 Works, unless published before then, as per Schedule 1, 12 (4) (c).

zxzoomy
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Re: Old photos/postcards

Post by zxzoomy »

What is the situation in this real example? A book was published in the uk in 1933 with a photo of the author. The same book is reprinted in 2001 with an edited version of the same photo to show just his head, rather than his head, chest and arm. Is the 1933 full version out of copyright? To broaden the question out: How can one know whether the same photo has been published at a much later date, thus giving it copyright protection again?

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Re: Old photos/postcards

Post by AndyJ »

Hi zxzoomy,

We need to differentiate between copyright in the photograph and copyright in the published edition. Let's do that in reverse order.

UK copyright law gives a special form of copyright to the publisher of the first edition of a typographical layout. You can find the details about this in section 8 of the Copyright Designs and Patents Act 1988. This kind of copyright only lasts for 25 years from the end of the year in which first publication occurred. Subsequent editions of the same book would need to have reasonably substantial changes to the typographical layout to qualify anew for copyright. In your example, a slightly different crop of the photograph would not, alone, be sufficient to renew the typographical copyright.

Turning now to the copyright in the photograph itself. Since this was published in 1933 it must have been created at some point before that, meaning that the 1911 Copyright Act would have applied. As you are probably aware from the earlier part of this thread, that copyright would have lasted for 50 years, and so would have expired no later than 31 December 1983. Making a relatively insignificant edit or crop of the photograph would not be sufficient to say that a new work had been created. The current jurisprudence on this subject requires there to have been sufficient creative choices on the part of the person making the alteration, which reflect his or her personality. I think it is clear that just cropping an image so it better fits the new layout falls well short of this 'originality' test. Therefore copyright in the photograph has been neither revived nor renewed by its having been republished in this way, and remains in the public domain. Obviously without knowing anything about the author's date of death or what changes had been made to the text of the 2001 edition, it is impossible to say what the copyright situation is regarding the other parts of the book.
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Re: Old photos/postcards

Post by zxzoomy »

Thank you for the detailed reply. Much appreciated. Can copyright be inherited? For example, in 1960 my mother took a photo of me, using my camera. In 1979 my mother passed, leaving assets to myself and my older brother, who passed in 2003. Do I own the copyright?

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Re: Old photos/postcards

Post by AndyJ »

Hi zxzoomy,

Yes, copyright can be inherited and follows the normal rules on inheritance. So for instance a person can bequeath his/her copyright to a named individual in their will, or if no such bequest is made, then the copyright forms part of the main residual estate and passes to the main beneficiary or beneficiaries. Furthermore, if a bequest is made consisting of an unpublished work which is protected by copyright (say, a painting, photograph, diary or manuscript) then in the absence of any general transfer of copyright to another individual, the person to whom the unpublished work is bequeathed also gains the copyright in that specific item (see section 93 CDPA). If there is no will then copyright follows the normal intestacy rules.
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zxzoomy
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Re: Old photos/postcards

Post by zxzoomy »

Thank you for this. I am confused. If I wanted to publish (or even sell a copy of) a photo, taken in the uk in 1914, for example, I might think it is 'out of copyright', as discussed on this forum. But if copyright is inherited then someone owns the copyright today. So I can't publish it or sell a copy?

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Re: Old photos/postcards

Post by AndyJ »

Hi zxzoomy,
If any work, like a photograph, is now out of copyright there is nothing to inherit. Think of it rather like a 99 year lease on a piece of real property such as a house. Let's say the first leaseholder lives there for 70 years, until his death. His heir can then inherit the lease and occupy the property for a further 29 years until the lease ends.
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zxzoomy
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Re: Old photos/postcards

Post by zxzoomy »

Now I understand. Thank you so much for the quick reply.

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