Copyright on old B&W photos and selling a colourised version

'Is it legal', 'can I do this' type questions and discussions.
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Dennis77
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Copyright on old B&W photos and selling a colourised version

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I recently commissioned a graphic designer to colourise a favourite black and white photograph, from 1880 as a gift. The file that the designer worked on was located from Wiki Commons and marked as being in the public domain and the author 'Unknown'.
I am now in possession of a fully coloured digital version of what was a black and white image to start with - a process that takes many hours. We have paid the graphic designer for his work (which was not cheap) and mentioned at the time that we wanted his permission to produce prints from our colourised image to sell. He has stated in email that we have 'full rights to use the work for web AND PRINT but no exclusive rights and no selling rights of the original DIGITAL file'. He also mentioned in email that he was giving us 'rights on his colourization work'.
Since then, we have had substantial interest from people wishing to purchase a printed copy of the image and are therefore investigating our options to produce some copies. I hope that makes sense! So my questions are:
Are we allowed under the photography copyright laws to sell a photo marked as 'public domain' and with unknown author that has been substantially adjusted?
Does the fact that the photograph has been inherently changed (from black and white to full colour) affect any copyright laws?
Does the graphic designer, who was paid for the colourisation hold any copyright still or with the emails we have are we free to proceed with printing some copies for sale without issue?
And finally, why are some photographs that are in the 'public domain' on Wiki Commons also for sale on Getty? There are other photos we would like to have colourised but confused that they can be found in both locations and therefore confused about their true copyright status.

Any and all advice very much appreciated. :D

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AndyJ
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Re: Copyright on old B&W photos and selling a colourised version

Post by AndyJ »

Hi Dennis

I'm making a couple of assumptions here. First that the original photograph was created in the UK or that the photographer was a UK citizen (I know the photographer is unknown, but the subject matter may indicate where the image was created). And secondly, that the graphic designer who colourized the image was based in the UK. I'll try and cover what it might mean if he/she was based elsewhere, say in the USA, later on.

I think you can safely assume that the original photograph is in the public domain. When it was made (the 1880s) the law in the UK at that time said that copyright in a photograph lasted for the life of the author (the photographer) plus seven years after his death. I think it is reasonable to assume that this copyright would still have been in force at the time that the 1911 Copyright Act was passed. This Act (section 21) amended the term for photographs to be 50 years from the date they were made. This provision was retro-active and so copyright in the original photograph would have ended on 1 January 1931. Being in the public domain means that you or anybody else may make use of the photograph in any way you wish. In theory someone else can take the same black and white image, colour it and sell their version in competition to yours.

Turning now to the colourization, I think, given that you say this took many hours*, it is fair to assume that a new artistic work was created and that the graphic designer owns the new copyright. The copyright only applies to the colourization, not the underlying black and white image. This type of combination is known as a derivative work. As he was commissioned to carry out the work, and it appears that it was explicit from the outset why you wanted the work done, you almost certainly have an implicit licence to use the colourized image in the way you intended (ie as a gift and as prints to sell). The designer's subsequent email appears to widen the terms of the licence to include the web and in print. As I assume you are not intending to offer copies of the digital file for sale, I don't think you would be going outside the terms of the licence to produce prints for sale. Obviously it might be best to confirm this with the designer first, but perhaps there is a reason why you don't wish to do this. The fact that the designer has stated that yours is a non-exclusive licence means that either he could produce his own prints from his image, or he could sell another licence to someone else to do this.

So that is the situation under UK law. Pretty much the same goes for most other countries where the graphic designer might be based, although the threshold for originality will vary and in some places the colourization will not be sufficient to mean that a new artistic work has been created and so no new copyright has come into being. The trouble is that it would probably require a court to decide this, which is obviously something you wish to avoid.

On you last point, Getty are well known for taking images which are in the public domain and selling licences to use them. Technically this is not illegal as long as they are not actually claiming that the images are in copyright. It was reported recently that Getty are offering licences to reproduce a graphic depicting the Covid19 virus even though it had been created by a US Federal Government employee and so, due to US copyright law, was free of copyright.

As for using other old photographs in the future, I can't offer any general rule of thumb, except that if a photograph was made in the UK prior to 1 January 1945, it is almost definitely in the public domain here now. If a photograph was made in the USA and published prior to 1923, it is also likely to be in the public domain**. However for other jurisdictions, the situation will vary widely and it would be safest to use the current copyright term of the lifetime of the author plus 70 years after his/her death to decide when something enters the public domain. In other words if you believe that the photographer have died before 1 January 1950, the photograph is probably now in the public domain.


* This is because the designer will have made many individual decisions about how to apply the colour and these will, to a certain extent, reflect his creative personality. This is the test the courts apply to decide if something is 'original' in the copyright sense. If he had merely used an app (such as this one) then it is doubtful that a new copyright would have come into being since the human creativity was removed from the equation.

**There's a useful chart which helps to decode whether a US-originated work is now in the public domain here
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

Dennis77
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Re: Copyright on old B&W photos and selling a colourised version

Post by Dennis77 »

AndyJ,

Thank you so much for your concise answer And shared expertise which is so much clearer than anything I’ve found to date.

The original image was taken in Scotland, so yes I think we can presume the photographer was UK based. Our graphic designer who colourised the photo is in Austria.

Out of interest are you aware of any cases taken to court that challenge sale of photos that were in the public domain? I’m not paranoid as I feel very safe with the image we have worked with, but just curious I guess as to how this has played out in the past and if it’s resulted in fines or just to stop production.

We feel much more confident moving forward with this project with your advice and perhaps investigation brining more older photos to life with this process. Very interesting about Getty too, that images can be both in the public domain and purchased!

Regards

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AndyJ
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Re: Copyright on old B&W photos and selling a colourised version

Post by AndyJ »

Hi Dennis,

I'm glad you are somewhat re-assured. The fact that your designer is Austrian means that EU law will prevail, which is pretty much as I described it earlier, namely that a work can only attract copyright if it contains evidence of the author's own intellectual creativity*. To that extent I think that creating and applying a colour palette to a black and white photograph would probably qualify for copyright protection.

On your next point, I am not aware of any recent cases which involve copyright disputes over images thought to be in the public domain**. Such disputes probably wouldn't get to court for three main reasons. Firstly the economic value of the disputed image is likely to be fairly low, while litigation can be expensive, so any dispute is likely to be settled early on. And secondly because the age of the photograph is going to be a crucial evidential factor, the courts will make reasonable assumptions where the direct evidence is lacking. So for example if it is obvious from the subject matter that the photograph was made in the nineteenth century (the clothing, types of vehicles, architecture etc) then a bit of simple maths based on average life expectancy can indicate which side of the copyright/public domain line the decision will fall. Since we don't have any formal registration process for copyright (unlike the USA in earlier times) it will be rare for there to be cast iron evidence about when a work was created, although publication of the photograph can pin down that a picture was in existence at a particular time. And lastly if there is doubt about the identity of the photographer then anyone making a claim for infringement faces an uphill battle to show how they come to be the current owner of any rights which may exist.

If you were faced with someone claiming to own copyright in an old photograph, you are most likely to receive a letter setting out their claim, which will allow you to weigh up the merits of their claim before deciding the next step to take. The worst situation is where you are selling your product on a site like Ebay and someone makes a formal complaint about you to Ebay. Since Ebay aren't there to decide the merits of the claim, very often the first you know about this is that your listing has been taken down. As no evidence to support the claim will have been produced at this stage it is difficult for you to assess whether this is genuine or just the action of a vindictive rival seller of something similar.

If you find an image you would like to use but have doubts about its age and authorship you can, for a relatively small fee, apply for an orphan works licence from the UK Intellectual Property Office. If a licence is granted, you will be indemnified against a claim for infringement.
More details here.


* If you want a really detailed explanation of the EU's stance on originality, see here.

** Incidentally, there was a case recently in the USA about whether or not the well-known song Happy Birthday was in the public domain. This went badly for the music publisher Warner Chappell Music who had claimed that it was still in copyright and were earning a good income from selling licences to use the song. However that case involved US law and their former, idiosyncratic copyright registration system so it's not really much help in the present circumstances.
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

Dennis77
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Re: Copyright on old B&W photos and selling a colourised version

Post by Dennis77 »

Thank you again so much. Your advice had been ‘golden’ and fully answered all the angles of this subject I’d struggled to find clarity on elsewhere!

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