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Photography Periodicals & Magazines (Mainly Pre-1957)

Posted: Mon Feb 01, 2021 11:45 am
by Elle Hayward
Hello,

I have a few questions regarding copyright for periodicals & magazines, published by now-defunct publishers. I have a good idea of what needs to be done, but I just want to clarify.

I understand that several of the magazines will not hold the copyright to the images, as this most often lies with the photographer or freelancer. None of the magazines and periodicals I am looking at employed staff photographers as such, although I understand I need to look more closely.

I've taken this information from the following points:

"Works of known authorship first published on or after 1 July 1912
Relevant legislative regime: the Copyright Act 1911. Under the 1911 Act, in the absence of any agreement to the contrary, the right to publish the work remains with the author other than as part of a newspaper, magazine or periodical (s.5(1)(b))"

"Photographs taken between 1 July 1912 and 31 July 1989
The person who owned the material on which the photograph was taken, for example, the negative, also owned the copyright.
In the case of photographs taken under commission for “valuable consideration” (money or any equivalent payment), the commissioner was the copyright owner, unless there was an agreement to the contrary."


The first thing I wanted to confirm was individual photographs, as I am dealing with photography magazines.
In terms of the photograph copyright, I understand the following:

"Photographs made before 1st June 1957
These photographs were originally protected for a period of 50 years from the end of the calendar year in which they were taken (regardless of whether they were published or not).

If the photograph was still in copyright as of 1 July 1995 [within EU] however, the period of copyright was extended to the life of the photographer plus 70 years. If copyright protection had expired before 1 July 1995, there was still the chance to "revive" the photograph. An eligible photograph would then be protected by the new term, ie the photographer's life plus 70 years."


(On a side note, why does the National Archives “copyright-related-rights’ PDF (scroll down to the end for their flowchart) state:
“Is the work a photograph taken before 1 June 1957? Yes? Copyright expires 70 years after the death of the author” (pg.15)? This conflicts with DACS advice from above?"

I do understand the known/unknown author and published/unpublished variations.

The second area I wanted to confirm was the actual publication/magazine/periodical itself. My example here is The Naturist, published by The Naturist (1941). It went defunct in 1960.

For this question, I have relied on this information:

"In the 1911 Act the term of author's copyright was extended to the lifetime of the author and 50 years thereafter; this remained the case under the 1956 Act and the 1988 Act.

Under the 1995 Regulations (set out below), the period of author's copyright was further extended, to the lifetime of the author and 70 years thereafter. Those regulations were retrospective: they extended the copyright period for all works which were then still in copyright, and (controversially) revived the lapsed copyright of all authors who had died between 50 and 70 years previously (i.e. between 1925 and 1945).

Therefore, copyright duration is 70 years from the end of the calendar year of the author's death. In the case of joint authors (most probable for a magazine) copyright expires 70 years after the death of the last survivor of them."


Here are my actual questions around this:

1. What is the photographer is the author? Does their publication copyright duration (death + 50 years) win out over their photograph's copyright duration (50 years from the image taken)?
2. Can I get permission from either the photographer estate, or the publication successor estate, to reproduce? Will one, or the other, suffice?
3. What is some authors/photographers are anon, while others are not?
4. What does the point "and (controversially) revived the lapsed copyright of all authors who had died between 50 and 70 years previously (i.e. between 1925 and 1945).", so you could revive copyright even if the publication was out of copyright of during 1995?

I feel a bit befuddled, any advice or help will be well received!

Many thanks, E

Re: Photography Periodicals & Magazines (Mainly Pre-1957)

Posted: Mon Feb 01, 2021 4:17 pm
by AndyJ
Elle Hayward wrote: Mon Feb 01, 2021 11:45 am Here are my actual questions around this:

1. What is the photographer is the author? Does their publication copyright duration (death + 50 years) win out over their photograph's copyright duration (50 years from the image taken)?
2. Can I get permission from either the photographer estate, or the publication successor estate, to reproduce? Will one, or the other, suffice?
3. What is some authors/photographers are anon, while others are not?
4. What does the point "and (controversially) revived the lapsed copyright of all authors who had died between 50 and 70 years previously (i.e. between 1925 and 1945).", so you could revive copyright even if the publication was out of copyright of during 1995?

I feel a bit befuddled, any advice or help will be well received!
Hi Elle,

You have asked about an area of copyright law which is much disputed, but also one which the courts have not really clarified. So let's try answer your questions. Prepare to be even more befuddled after I try to explain.

1. Up until 1 August 1989 when the 1988 Copyright Designs and Patents Act came into force the duration for copyright in any photograph already in existence was 50 years from the date it was made (section 21 of the Copyright Act 1911). This remained the yardstick irrespective of who actually owned the copyright. However in 1993 the EEC (as the EU was then known) put out Directive 93/98* of 29 October 1993, which was intended to harmonise the various different copyright terms then in force across all the member states. The operative part was Article 1 which said (in part) "The rights of an author of a literary or artistic work within the meaning of article 2 of the Berne Convention shall run for the life of the author and for 70 years after his death, irrespective of the date when the work is lawfully made available to the public."
However this left open the problem of how to apply this to works already in existence. For that we need to look at Article 10 which says
Article 10. Application in Time.
1. Where a term of protection, which is longer than the corresponding term provided for by this Directive, is already running in a Member State on the date referred to in Article 13 (1) [that is,1 July 1995], this Directive shall not have the efffect of shortening that term of protection in that Member State.
2. The terms of protection provided for in the Directive shall apply to all works and subject matter which are protected in at least one Member State, on the date referred to in Article 13(1), pursuant to national provisions on copyright or related rights or which meet the criteria for protection under Directive 92/100/EEC.
[Article 10 then goes on to cover some other aspects which aren't relevant here]
This Directive was transferred into UK law by the 1995 Regulations referred to in one of your quotes.

To break down what Article 10 (1) means, we need to look at what the pre-existing regimes were across the EEC prior to this Directive. Most countries including the UK had the lifetime plus 50 years term which had been agreed in the Berne Convention. In Germany it was lifetime plus 70 years and in Spain it was lifetime plus 80 years. France had the basic rule of lifetime plus 50 but extra years could be added on if the author of a work died in the service of his country in either of the World Wars. As you can see the overall effect of the 1993 Directive was to bring everyone up to the level of Germany, but without disadvantaging existing works in Spain which had the longer +80 years term. However the exact meaning of Article 10(2) is less clear. The key words are "all works which are protected in at least one Member State on [1July 1995]". Some people, including the author of the National Archives guidance, Tim Padfield, argue that this should mean that although a written work published in the UK by a UK author who died before 1945 would no longer be in copyright in the UK on 1 July 1995, the same work would be protected in Germany for a further 20 years, so the 1 July 1995 date would mean that all UK authors who died between 1925 and 1945 would have had their copyright revived. However the situation is different for photographs, because in the UK we are concerned with a fixed term unrelated to the photographer's date of death. Before examining this more closely it is worth turning to the Berne Convention which is an International Treaty signed by over 178 countries around the world. Article 7 (8) of the Convention says:
(8) In any case, the term shall be governed by the legislation of the country where protection is claimed; however, unless the legislation of that country otherwise provides, the term shall not exceed the term fixed in the country of origin of the work
This is known as the rule of the shorter term. Prior to 1993 neither Germany nor Spain included any special provisions which said that their domestic law would overrule the copyright term of the country of origin, where this was shorter than in Germany or Spain (ie most other countries of the world). Therefore the counter argument to Tim Padfield's position is that, if the Berne rule is correctly applied and Article 10(2) is read with this in mind, a work which was out of copyright in the country of origin (due to the lifetime plus 50 rule) on 1 July 1995, it would not be protected in another Member State eg Germany just because German law allowed an extra 20 years of protection for works made there. In support of this counter argument it is worth noting that the original wording of the Directive proposed by the European Commission said that its provisions would apply to "rights which have not expired on or before 31 December 1994". The wording was changed by the European Parliament prior to the issue of the Directive. A cynic might say that this was due to extensive lobbying of the Parliament by the American film and record industry who wanted the longer copyright terms.

I said earlier that the courts hadn't ruled on this. The UK courts haven't, but the Court of Justice of the European Union (CJEU) have looked at something similar in two cases known as Phil Collins v Patricia Im-und Export Verwaltungsgesellschaft mbH [1993], and Buttefly Music [1999]. In the Phil Collins case which was heard before Directive 93/98 was issued, and in any case was not about copyright, the CJEU said that because of the EEC Treaty stated that there must be no discriminationas between the citzens of one EEC member state and another member state, Phil Collins was entitled to receive royalties in respect of his recordings which had been released in Germany, on the same basis as would apply to a German artist for her recordings. In the Butterfly Music case the issue was about whether the Directive had retro-active effect on rights which had been licensed in accordance with national legislation (in Italy) prior to the Directive coming into force. The CJEU ruled that such national legislation should prevail because it gave effect to the words "pursuant to national provisions..." contained in Article 10. The case was not about literary or artistic works, but sound recordings which are subject to a fixed term from the date of publication, rather than the lifetime plus rules.
So, a very long winded way of saying, it depends... I maintain that photographs made in the UK prior to 1 Jan 1945 were not in copyright on 1 July 1995 in any European member state and therefore copyright in them was not revived.

2. So assuming I am wrong and copyright exists in the photographs, the length of the term for photographs will be based on the lifetime of the photographer, in cases where the photographer died after 31 December 1924. Whether or not the copyright still belongs to the photographer's estate will depend on the circumstances. If there were no staff photographers working for the magazine, the publisher would have needed to purchase the copyright at the time they acquired the right to publish the photograph(s). Unless they wanted exclusivity, I can't see why they would want this extra expense, but it is certainly possible. However since the publishing company no longer exists, I suspect it will be very difficult to establish this point today. You would be better trying to find the photographer's heirs.

3. Where the photographer is anonymous section 12 (3) of the Copyright Designs and Patents Act 1988 provides the answer.

4. Hopefully my answer to question 1 above explains how, according to one line of argument, Article 10(2) could revive copyright in a work which had entered the public domain.


In case any of my explanation above is utterly unclear, I have written about this a couple of times before so it may help to read those other threads: here and here.


* This Directive was later superceded by a later Directive but the wording of Article 10 remains the same in both Directives.

Re: Photography Periodicals & Magazines (Mainly Pre-1957)

Posted: Wed Feb 10, 2021 6:42 pm
by Elle Hayward
Hello,

Thank you so much for your very informative and lengthy reply, I am extremely grateful. You've cleared up a lot of questions and I will proceed with your advice. Brilliant.

I just wanted to ask one more thing: to reproduce adverts (misc) from a magazine (1941) with a defunct publisher, is it that I must locate all and every author of the magazine as a collective work, then assume life + 70 years for each contributor? It seems some pages are anon, while others are not, so it is hard to tell if I do copyright by a spread or the entire mag.

Thank you again,

Best,
E

Re: Photography Periodicals & Magazines (Mainly Pre-1957)

Posted: Thu Feb 11, 2021 7:01 am
by AndyJ
Hi Elle,

Theoretically each advert will have its own copyright which will be owned by the advertiser, and you would need to approach each one for permission separately. Because the actual artwork and wording of each advert will by unknown individuals you can rely on the 70 years from publication* rule (section 12 (3) to determine when copyright ends. In practical terms, advertisements are not something that companies are likely to want to protect many years after they were first used and so if you have difficulty in finding the copyright owner today, I don't think you need to be too worried, and you can rely on the fair dealing exceptions to keep you on the right side of the law.

* The period of copyright runs for 70 years from the end of the year of first publication. So in the case of a magzine published in 1941 copyright for articles or adverts etc where the author is unknown, copyright will last until 31 December 2021.

Re: Photography Periodicals & Magazines (Mainly Pre-1957)

Posted: Fri Feb 12, 2021 5:34 pm
by Elle Hayward
Hi AndyJ,

Thank you so much, that is a huge help. So it is essentially only the contributors to the page, not those of the entire magazine, that need to be examined in order to deduce if it is possible to reproduce that single page.

Can I ask more about fair dealing? I'm looking into reproducing the images for a commercial book, so I had not thought it applied.

The other problem I have hit upon, hopefully my last big stumbling block, as everything is becoming clear-mainly due to this fantastic site, is what to do say a magazine (1944) spread includes a photograph by a known author. The magazine content would be protected (life of contributor + 70), but can could I still use the photograph therein as it is taken pre-Jan 1945?

Thank you again for your advice, I feel as if the site should be a Patreon or have a ko-fi button!

Best,
Ellie

Re: Photography Periodicals & Magazines (Mainly Pre-1957)

Posted: Sat Feb 13, 2021 10:46 pm
by AndyJ
Hi Ellie,

Whether fair dealing will cover using the illustrations in a book will depend on the nature of the book. If the purpose is to review or to provide a critique of a genre or facet of publishing or art / graphic design which is exemplified by the images then you should be within Section 30, which doesn't exclude commercial publication, provided that you don't overddo the amount you reproduce and you credit the original authors wherever this is possible. On the specific issue of reproducing photographs which were made before 1945 you should OK with just relying on the fact that copyright in them has ended. It doesn't matter if they form part of a compliation if you only want to reproduce the photographs.

Re: Photography Periodicals & Magazines (Mainly Pre-1957)

Posted: Mon Feb 15, 2021 12:21 pm
by Elle Hayward
Dear AndyJ,

Super helpful, thank you so much!

Best, E