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Old French Postcard images

Posted: Thu Aug 16, 2018 8:28 am
by RogerFarnworth

I believe that in the UK copyright on images like old postcards lapses after 50 years. I have some images of old French postcards which have been culled from the internet which I want to include in a book which may well be published in France as well as in the UK.

Is copyright law different in France? And what time period applies there before copyright lapses on postcard images?

best wishes


Re: Old French Postcard images

Posted: Thu Aug 16, 2018 11:11 am
by AndyJ
Hi Roger,

Before going on to answer your question, I should just make it clear that the statement "UK copyright on images like old postcards lapses after 50 years" is a bit of a generalisation. Under UK law, virtually all photographs made before 1945 are now free of copyright, but a postcard which featured some artwork, say like a McGill cartoon, would be subject to the longer copyright term of the artist's lifetime plus 50 years if the artist's death occurred before 1945, or their lifetime plus 70 years if the death occurred after 1944.

But with regard to your question, yes, the copyright term for something created or first published in France will be subject to a different term of protection. Indeed the whole approach to copyright is somewhat different but that need not concern us here. Prior to the Law of 1 July 1992, the term of copyright protection in France was the lifetime of the author plus 50 years from the end of the year they died. After the 1992 Law came into force, it was the lifetime plus 70 years. The extension of 20 years applied to any work which was still in copyright on 1 July 1992. But there are number of important modifications to this basic rule, because France recognised the effects of the First and Second World Wars on the ability of copyright owners to enjoy their rights. The best way to explain how this works is to quote the French law:
Article L123-8

The rights granted by the law of 14 July 1866 [ie the lifetime plus 50 years] on the rights of the heirs and successors of the authors to the heirs and other successors of authors, composers and artists shall be extended by a period equal to that which elapsed between the 2 August 1914 and the end of the year following the date of the signing of the peace treaty for all works published before that date and not in the public domain February 3, 1919.

Article L123-9

The rights granted by the law of 14 July 1866 and cited in Article L. 123-8 to the heirs and successors of authors, composers or artists are extended for a period equal to that which elapsed between September 3, 1939 and 1 January 1948 for all works published before that date and not in the public domain as of August 13, 1941.

Article L123-10

The rights mentioned in the previous article are further extended, for a period of thirty years when the author, composer or artist died for France, as is clear from the death certificate.
If the death certificate was neither drawn up nor registered in France, a decree of the Minister of Culture may extend to other heirs or successors of the deceased the benefit of the additional extension of thirty years; this decree, issued after the authorities referred to in Article 1 of Ordinance No 45-2717 of 2 November 1945, will intervene only in cases where the words "died for France" would have appeared on the death certificate if he had been trained in France.
As you can see you may have to do a bit maths based on when the postcards were published and also if the photographer was deemed to have died in the service of France in either the First or Second World War.

If the photographer is anonymous the folllowing rule applies:
Article L123-3

For a pseudonymous, anonymous or collective work, the duration of the exclusive right is seventy years after January 1 of the calendar year following that in which the work was published. The publication date is determined by any mode of proof of common law, including the legal deposit.
If a pseudonymous, anonymous or collective work is published in installments, the period runs from 1 January of the calendar year following the date on which each item was published.
When the author or authors of anonymous or pseudonymous works made themselves known, the duration of the exclusive right is that provided by Articles L. 123-1 and L. 123-2.
The provisions of the first and second paragraph shall apply only pseudonymous, anonymous or collective works published during the seventy years following the year of their creation.
However, when a pseudonymous, anonymous or collective work is published after the expiry of the period mentioned in the preceding paragraph, its owner by succession or other securities, which carries out publication enjoys an exclusive right of twenty-five years from January 1 of the calendar year following the year of publication.
However, bear in mind that 'anonymous' is not the same as 'currently unknown'. If it is possible to discover the name of the photographer by dilligent research, then Article L 123-3 will not apply. Another way of looking at this is to ask yourself if the identity of the photographer would have been known to the publisher of the postcard. Since this seems likely, Article L 123-3 won't apply in most cases, which leaves something of a problem if you need to find the date of death of an unknown person!

Re: Old French Postcard images

Posted: Fri Aug 17, 2018 9:44 am
by RogerFarnworth
Thank you for your response I really appreciate it.

Re: Old French Postcard images

Posted: Sat Aug 18, 2018 9:48 am
You say the images are "culled from the internet". This could create a few problems if any retouching or alteration was done on the internet images creating a new claim for copyright. A trip to a collectors' brocante in France would provide you with masses of material and a far better quality of reproduction.

Re: Old French Postcard images

Posted: Sat Aug 18, 2018 5:17 pm
by AndyJ

I'm not sure I follow your thinking. Once Roger has done his research, these postcards will fall into one of two broad categories: out of copyright and therefore with no liability for infringement, or in copyright and therefore needing permission before using an image. If it's the latter then Roger will have permission to use the image in the form that he found it, thus incurring no additional liability for any alterations etc. If it's the former, then he can freely use an image irrespective of its state where he found it. You perhaps have in mind the rather stronger moral right in France, which is perpetual, for a work not to be treated in a derogatory manner which impugns the honour of the author. However since Roger would not have been the person who made the changes, he would face no liabilty under this heading. The photographer's heirs would need to take up the matter with the website or person who made the alterations - not easy if the person responsible is located outside the reach of the French courts.

If you are talking about a claim by a retoucher then the amount of retouching would need to be very considerable, to the extent that a very different image has been created. As I assume Roger is looking for authentic old postcard images, I can't see a heavily altered image being of much interest. Under French law not all photographic images attract copyright. They need to exhibit the spirit of the author (see for example this case concerning a portrait of Jimi Hendrix which was found at first instance not to be eligible for copyright protection*). On that basis there is no guarantee that a derivative version would actually attract copyright. Futhermore if the original image was still in copyright at the time the retouching was carried out, the retoucher would need to be able to show that he/she had permission from the original photographer or his estate to create a derivative work, otherwise the altered version would be infringing and there could be no claim to a second copyright.

While I agree that finding originals of the postcards might provide better quality images, it does rather depend on whether Roger wants to use specific images for his project, and the likelihood of finding those exact cards in a brocante.

*this decision was later reversed on appeal.