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old advertising posters - copyright and trademarks

Posted: Thu Aug 27, 2015 10:41 am
by Phil Shankland
I've read posts on this forum which have been very helpful - and I seem to straddle 2 separate issues - copyright and trademark permissions.

I have been offered access to a catalogue of scanned original old posters for advertising e.g. products, places, railways, shipping lines. To be clear - I do not own the original posters. I want to reproduce them on the lids of my cool Tinamps - portable speakers in 2oz tobacco tins.

Of course, I want to respect and where appropriate license the designs. Some of them advertise a brand e.g. 'Fry's' and even though the artist who designed the poster is long dead (we're talking about posters from the 1860's - 1930's) do I have to research copyright as well as trademarks?

If the poster advertises a now (as far as I know) defunct brand e.g. 'Swift cycles' and 'Brighton Biscuit Company' do I still have to go to the same research effort to establish if the defunct brand name is still a registered trade mark?

If the poster is an advert to visit say Scarborough do I still need to try and identify the copyright owner (the artist) and seek permission from Scarborough Tourist office, for example?

Posted: Thu Aug 27, 2015 8:56 pm
by AndyJ
Hi Phil
I don't think you need worry about copyright for any posters from before about 1890. Copyright in them will almost certainly have expired. This is based on the reasonable assumption that an artist aged, say, 25 years when he created an poster in 1890 could have been expected to live the age of around 75 and so would have died in 1940, and as the post mortem copyright period then was 50 years, copyright would have expired no later than 31 December 1990, well before the increase to 70 years post mortem which occurred in 1995. By the same token, anything produced after about 1895 should therefore be treated on the assumption that there may still be copyright in existence, although it will usually be very hard to track down the individual artists in most cases. So unless there is a known artist, you can treat these post-1895 works as being by anonymous artists and so sub-sections (3) to (5) of section 12 of the Copyright Designs and Patents Act apply:
(3) If the work is of unknown authorship, copyright expires—
  • (a) at the end of the period of 70 years from the end of the calendar year in which the work was made, or

    (b) if during that period the work is made available to the public, at the end of the period of 70 years from the end of the calendar year in which it is first so made available,
subject as follows.

(4) Subsection (2) applies if the identity of the author becomes known before the end of the period specified in paragraph (a) or (b) of subsection (3).

(5) For the purposes of subsection (3) making available to the public includes—
  • (a) in the case of a literary, dramatic or musical work—
    • (i) performance in public, or

      (ii) communication to the public;
    (b) in the case of an artistic work—
    • (i) exhibition in public,

      (ii) a film including the work being shown in public, or

      (iii) communication to the public;
but in determining generally for the purposes of that subsection whether a work has been made available to the public no account shall be taken of any unauthorised act.
Given that all these posters pre-date 1930, those where the artist is anonymous will now be out of copyright under this provision.

So really, the only copyright problems you face are those post-1895 posters where the artist has been identified. Since you will probably face great problems tracking down both the dates of death and any heirs to these artists, such works will probably be eligible to be treated as orphan works. Applying for licences to use such works is relatively cheap and straight forward, as explained on the Intellectual Property Office website.

As far as trade marks are concerned, it is possible that the odd one may still be registered, but if it hasn't been used in the course of trade in the past 5 years, the registration can be challenged. Thus, even if some company claims ownership of the trade mark, it is highly likely that any claim can be rebutted without things getting too serious, on the basis that the mark is likely to be declared invalid for lack of use. If in doubt, the IPO online trade mark database is relatively easy to use to check and see the status of any marks you are unsure about. I wouldn't worry about the possible trade mark issues with posters for resorts like Scarborough. Scarborough itself is not registered, and even if you came across a town which had registered its name for use on posters, your use of the name on tins for electronic items would be highly unlikely to infringe the trade mark because no-one is likely to be confused into thinking your product is somehow related to the resort of Blackpool or where ever.

Posted: Fri Aug 28, 2015 8:37 am
by Phil Shankland
AndyJ - this is an incredibly detailed and helpful answer. Thank you.

It helps me focus more on trademark protections where the poster includes a brand name e.g. Fry's or Rowntree's.

One follow on question then - where do I stand on using an image pre-1890 for 'nervous pills' which has already been used (in another format with different wording but its the same Baldwins brand) by Robert Opie to create a similar tin. I used to buy my tins with this design from them - and now they have discontinued them and I want to source my own design. Phil

Posted: Fri Aug 28, 2015 2:17 pm
by AndyJ
Hi Phil,
Assuming that the bit that you want to replicate is from the original pre-1890 item, I can't see this infringing a Robert Opie re-recreation because it would only be possible for the company to claim copyright in something they have specifically created which is original and not copied from the earlier packaging. You effectively wish to copy the idea of old branding/packaging and you are free to do so since this in the public domain.
I don't think there can be any trade mark implications from this. Nor do I think passing off is relevant here. Even though you wish to produce something which may well resemble an earlier Opie product, since both of them are replicating an even older design, it would be exceptionally hard to argue that Opies had built goodwill around their product range since most of the items relate to other earlier brands etc. To pursue a passing-off claim against anyone selling vintage-inspired goods would, to my mind, look like a restrictive and unfair trade practice.
I cannot find anything on the Robert Opie website concerning their intellectual property policy so it is hard to know what they might or might not wish to claim in this respect.