Postcard images and content

Tracing copyright owners and asking permission.
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HelenBee
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Postcard images and content

Post by HelenBee » Wed Dec 05, 2018 8:12 pm

I’ve read various posts on here regarding the use of postcards in books. I am thinking about writing a book about postcards sent in the early years of the 20th century. I have contacted Francis Frith who still sell versions of their old images and they are happy for me to use any postcards that I can prove were used more than 70 years ago. As they are all used and franked, that won’t be a problem. I have read posts on here that advise it's 50 years but FF have said 70.

Can I apply that to all the postcards? I know many of the publishers ceased trading decades ago and others were absorbed into other companies and tracing them has been virtually impossible.

The theme of the book requires me to research the recipients of the cards and that means including the text in the messages. Many of the cards are anonymous and it would be impossible to trace who wrote them. I've seen books containing postcard images and messages from the past 30 or so years. When I've looked at one such book, they acknowledge the writers of the cards in general terms without any mention of copyright: If you wrote the words, thank you.

Also, they state that they have endeavoured to trace the publishers of the cards - as I am doing - and that if they've missed anyone, they'll update the content in a future edition.

I am researching the histories of the cards - where people lived (in general terms) and worked (industry); a social history. I have not brought my research beyond the early years of the 20th century - I have gone back into the 1800s. Many of the addresses do not exist today - the areas have often been redeveloped. It would be possible to conceal the exact addresses - if that's a factor. Would revealing a deceased person's location in 1911, 1901, 1891, etc. be an infringement of privacy? Often it's just the town or city I mention - apart from the postal address on the card. The census returns I use are often so badly written that I couldn't reveal an address even if I wanted to.

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AndyJ
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Re: Postcard images and content

Post by AndyJ » Thu Dec 06, 2018 1:10 am

Hi HelenBee,

There are two separate aspects to your question: copyright and privacy/personal data.

I'm not sure why Francis Frith are saying that a postcard which is over 70 years old is OK. Assuming that the image on the card is a photograph, then as you will have seen from other threads on that subject on these forums, the duration of copyright protection was 50 years from the date the image was made (ie the date the photograph was taken). It is immaterial when the photograph was actually incorporated in the postcard or when the user sent it. This provision, which came from the 1911 Copyright Act, remained unchanged by subsequent legislation up until 1995, when new EU legislation brought in a copyright term based on the lifetime of the photographer plus seventy years after his/her death. This means that any photograph created prior to 31 December 1944 would have fallen out of copyright before the new regime kicked in. As you can see, the figure of seventy years alone does not feature in this calculation, whether before 1944 or after. I suspect Friths are thinking of the provision in the 1988 Copyright Designs and Patents Act concerning anonymous works, where the method of calculating the term was 50 (later 70) years from the date of publication of the work. But this only applied to photographs taken after 1 June 1957 (when the 1956 Copyright Act came into force), meaning that the previous watershed (31 December 1944) remained valid with respect to older photographs.
However if the picture on a postcard is taken from an engraving or similar artistic work a very different formula needs to be followed. Under the 1911 Act, protection in an engraving etc was the lifetime of the author or artist plus 50 years after his/her death. This remained the case up until the previously mentioned EU legislation in 1995 which extended the post mortem part to 70 years. Thus it is perfectly possible that an engraving made around 1900 could still have been in copyright in 1995 and would thus be affected by the increase. Indeed it is possible that quite a lot of engravings from the start of the twentieth century are still in copyright today, as the artist could easily have lived until after 1948. But once again the figure of seventy years on its own only makes sense if one is talking about anonymous engravings etc. However, crucially, the additional twenty years only applied to published engravings made by an anonymous artist after commencement of the 1988 Act (see Schedule 1 paragraph 12 (3)(a) of the Act) which was 1 August 1989. Thus an engraving made by an anonymous artist which was published prior to 1968 would be out of copyright today, because the applicable term was only fifty years from publication (2018 - 50 = 1968).

And finally under the heading of copyright, the text written on a postcard would constitute a literary work and would be protected in much the same way as an engraving, ie the lifetime of the author plus fifty years after their death, or if they are truly anonymous, fifty years from publication*.

Sorry this is so complicated, and certainly not as simple as applying the Frith formula!

The second part of your question relates to privacy and data protection, which is outside the subject matter of these forums, but I'll do my best to provide a brief answer. The recent Data Protection Act 2018 has completely overhauled the approach to dealing with personal information in order to comply with the EU's General Data Protection Regulation (GDPR). The Act specifies the measures to be taken when processing information which may identify a living individual:
"(3)“Identifiable living individual” means a living individual who can be identified, directly or indirectly, in particular by reference to—

(a) an identifier such as a name, an identification number, location data or an online identifier, or

(b) one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of the individual.
and processing includes storing or transmitting or publishing such information. In other words, as long as you are sure that any writers or recipients who can be identified on the postcards are no longer alive, you don't have to worry about this. As you may be aware the various UK censuses which have been released to the public so far had been closed for 100 years in order to ensure that the vast majority of those listed in the census data will no longer be alive. I think this would be a suitable yardstick for you to apply to the data protection aspects of any identifiable individual you come across.


* In fact it is unlikely that any normal postcard will ever have been lawfully published, because that would require the permission of the author, who if they can't be traced, can't give permission. It is also worth noting that 'anonymous' is not the same as 'unknown' or 'untraceable'. Thus a card signed 'Uncle Bill' is not technically an anonymous work, even though we have no way of knowing his full identity today. The recipient would have known who he was, and so he is merely an untraceable author, and his card is an orphan work.
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

HelenBee
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Re: Postcard images and content

Post by HelenBee » Thu Dec 06, 2018 8:41 am

Thank you for your reply. I am now very reassured.

I’d already read here about the 50-year rule before I contacted FF and thought that perhaps they had created their own copyright restriction. Either way, I’m not concerned about it because all the cards are more than 100 years old. FF also wanted to be acknowledged as the publisher and I had already planned to list them. I will review the images on the postcards, but I don't believe any are affected by your comment regarding engravings etc. If I have any doubts I will discard them from the project.

Of course you’re right about being ‘anonymous’ – it was a bad choice of word. As part of my research I have managed to trace some of them – from the relationship, message, etc. I’ve even traced one by matching the handwriting on the 1911 census.

All of the writers (that I’ve traced) and recipients are dead – and have been for decades. Very few were alive in the 1940s.

I’d also considered the access of census returns and am pleased you have confirmed my own opinion on this.

Thank you again. You’ve been very helpful.

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