Old books and the illustrations therein

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MrsTwosheds
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Old books and the illustrations therein

Post by MrsTwosheds » Sun Dec 02, 2018 7:46 pm

Hi again guys

Wonder if you can help with this one, please? It’s a bit contorted and I would (possibly!) know the answer if I was dealing with the first layer of the enquiry but am not sure about the historical aspect.

I am thinking about buying a book and would like to use the illustrations for a display (which would require their reproduction). The book was published in 1911 but the subject matter is Napoleonic, (so the cartoons were drawn roughly mid to late 18th and early 19th century). Both of the authors/historians have been dead for more than 70 years, so I believe that I would be able to use the text without any problem?

However, I’m not too sure about the Napoleonic illustrations themselves. Obviously, the artists/cartoonists would by now be long gone but would the copyright (if, say, the works were in a private collection or in a museum in 1911) still be enforceable by the estate of the original owner or by the museum? The very act of publishing would have placed these particular works in the public arena in 1911 (if, indeed, they were not printed before) but I am not sure whether the particular printed image in the book is now in the public domain or whether private owners or museums have an overall copyright if they still own the original works (even though these may now be several hundred years old). I know that some museums are very protective of their exhibits and claim copyright on everything (regardless of its age and accessibility). Am I overthinking this, or have I got it round my neck?

Sorry this is a bit of a ramble! Very many thanks as always.

Best regards

Sally

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AndyJ
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Re: Old books and the illustrations therein

Post by AndyJ » Mon Dec 03, 2018 9:43 am

Hi Sally,

You are right to be cautious about older works which may still be in copyright due to never having been published with the authorisation of the copyright owner. In cases such as these, copyright could exist until the end of 2039* when, finally, all such works will enter the public domain in the UK.

But, yes, you are right that the act of publishing these cartoons in 1911 would have begun the copyright term which would then have lasted for 50 years from the date of publication. The relevant legislation is section 17 of the Copyright Act 1911. The whole book will therefore be in the public domain now.


* ie 50 years from the end of the year the 1988 Copright Designs and Patents Act came into force.
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

MrsTwosheds
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Re: Old books and the illustrations therein

Post by MrsTwosheds » Mon Dec 03, 2018 10:14 am

That’s wonderful news, Andy - thank you so much as always for your speedy and erudite reply!

I had been pondering this issue for some time as I frequently haunt secondhand bookshops in the hope of picking up copyright-free material (particularly old Victorian art books) - I have always been slightly worried about books (however old) containing art work credited to museums as I was never sure whether I could receive a metaphorical bop on the nose for the use of the images today. This clears things up beautifully.

I’ve said this before but I absolutely love this forum - what an amazing resource this is! Thank you again.

Very best regards

Sally

Madhu
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Re: Old books and the illustrations therein

Post by Madhu » Sat Aug 24, 2019 11:20 am

Could you please clarify about illustrations from a late nineteenth century book, originally published in Great Britain, that has been reprinted several times by different publishers across the world? Are these in the public domain? The last printing was in 2015, as far as I could determine. If I need to seek permission, whom do I contact? I use the illustrations (of monuments from India) in art quilts. So far these quilts have been for personal use, but what if I decide to sell them?
Thank you in advance!

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AndyJ
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Re: Old books and the illustrations therein

Post by AndyJ » Sun Aug 25, 2019 10:29 am

Hi madhu,

You are on pretty safe ground using these old illustrations without needing permission. I assume that there is no information about the identity of the individual artists who produced these original illustrations. If this applies in all cases you can jump straight to my fourth paragraph for an explanation of why these works are no longer protected by copyright.

However if you do find a name, try and check out when he (they will almost all be male artists, I suspect) died. If you have a name but can't find out any more about the person who created the particular illustration, then we are dealing with what are known in the jargon as orphan works. If you are exceptionally risk-averse, you could, after some diligent but ultimately fruitless searching for an heir to the artist, apply to the Intellectual Property Office for an orphan works licence which would indemnify you against any claim for infringement. However I really don't think that would be necessary as we can reasonably make a few assumptions which lead us to the conclusion that these works are out of copyright now. Let's take a worst case example of an illustration published in say, 1899. The artist was probably alive at the time of publication, and unless he was particularly precocious he would have been between 25 and 70 years of age. Based on life expectancy rates of that time he might have lived to about 70, giving a range of dates of death between 1900 to 1944. So again based on a worst case of a death in 1944 we then need to add 70 years* to the end of the year of death. That takes us to 31 December 2014, as the latest date at which copyright would have ended in this example. Of course there is a tiny chance that the artist was under 25 when the work was published, or possibly lived over the age of 70, but even if we extend the period by another four years, ie to 2018, the work of that artist still would have entered the public domain on the 1st of January this year. No amount of publication or republication in the intervening period would have altered this position.

If you do have a name and can find the date of death, simply add 70 years to that date and copyright will have ended on the 31st of December of the year concerned.

I started with the assumption that the artists were anonymous. In this case the law provides a simple solution, which can be found in subsection 12(3) of the Copyright Designs and Patents Act 1988. We take the date of first publication and add the appropriate duration of 70 years. Since these illustrations were published in the late nineteenth century, copyright where anonymous artists are involved would have ceased before 1970 at the latest. As previously mentioned no republication in the meantime would have altered this state of affairs. Publishers may claim a copyright and since this is not technically illegal, they often do**, but it makes no difference to the way that copyright terms are calculated.



* For the sake of simplicity I have not dealt with the fact that where an author died before 1945, the law which then applied only required 50 years to be added to the end of the year of death. New European legislation later added the extra 20 years for works still in copyright in 1995, leading to the 70 year post mortem period which exists today. Since this change doesn't affect my example, I have left that detail out.

** If challenged about this most publishers fall back on the fact there is a special form of copyright which lasts for 25 years and which protects the typographical layout of a book or magazine etc. However the law is quite clear that the provision does not apply to something which is just a re-issue of a previous edition, as would be the case with where a facsimile reproduction was concerned. Since the illustrations will be identical to original works, albeit they may have been digitally reproduced, this publisher's right would not apply to them.
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

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