Photos from Far-Eastern Review (1908-1914)

Tracing copyright owners and asking permission.
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IbnBattuta
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Photos from Far-Eastern Review (1908-1914)

Post by IbnBattuta »

Hello everyone,

I have an academic book under contract and am currently clearing the copyright for photos I would like to use. Amongst these photos, there are three that come from the Far-Eastern Review (https://en.wikipedia.org/wiki/The_Far_Eastern_Review), an English-language newspaper published in Manila in the early 20th century. The photos I am concerned with are from 1908/1913.

I have found these through the Cengage Gale database. Being new to this, I (naively) assumed that these photos must be out of copyright being so old, so that I could just use them. However, after reading a bit more about copyright, I at least am not sure anymore that this is the case. One problem seems to be that these photos come from a Gale database, though I could scan them from originals I have, so that I could get around I suppose. However, I am not sure what else I would need to do to make sure I don't get into trouble because of these photos? The Far-Eastern Review has been out of print since the 1940s and no photographer is given for the photos I'd like to use. If I manage to scan these photos myself, would I be able to use them for my publication?

Thanks in advance for any help!
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AndyJ
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Re: Photos from Far-Eastern Review (1908-1914)

Post by AndyJ »

Hi IbnBattuta,

The key to this problem is where the photographs were created and/or first published. This is known as the country of origin and this determines which copyright regime applies to the duration of the copyright protection. For example if the country of origin was the UK, the period of protection would be 50 years from the date they were made. If it was the USA, then the photogaphs would have needed to be registered first and could then be protected for up to 56 years. If the country of origin was somewhere else in the world, then the local law would apply, although in all probability the duration of protection is unlikely to have been more than the lifetime of the photographer plus 50 years after his death*, meaning that it is highly likely that whatever the country of origin, the photographs are now out of copyright.

As you can see, the fact that they were published in the Far-Eastern Review may be irrelvant. But if it happens that the photographs originated in the Phillipines (where the Review was then based), then US Copyright law would have applied to them, as the Phillipines was a US Proctectorate at the time. US Copyright law now says that any work published before 1923 is now out of copyright.

I'm not sure how Cengage Gale acquired these images. Perhaps they bought up the picture library which first offered these images under licence. However the fact that they are a US company may help. If Gale say that the images are still covered by copyright, they are probably referring to the digital version of the images, rather than the original images on photographic paper. The latter are almost certainly out of copyright irrespective of where they originated. Gale's claim to digital copyright (if that is what they do claim) is pretty unjustifiable in light of a number of US court decisons about copyright in facsimile reproductions of original works. The most well-known of these cases is the Bridgeman Art Library v Corel Corp decision from 1999, which held that a faithfull reproduction of an existing painting did not attract a new copyright because the reproduction lacked sufficient human creative input to be considered original. Since most digital images from analogue photographs are made by scanning, which requires virtually no human input to achieve, any claim to copyright by Gale is spurious. Thus if you have access to the photographs in analogue form, you can safely scan and use them.

* This term of protection was contained in the original Berne Convention of 1886 which was an international agreement on certain aspects of copyright. In 1908 it had been signed by about 13 mainly European countries. Today there are 179 signatories.
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
IbnBattuta
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Re: Photos from Far-Eastern Review (1908-1914)

Post by IbnBattuta »

Hi Andy,

thanks so much. This is super useful. It is difficult to say where the pictures originated exactly. While the magazine was published in the Philippines, it covered the whole of Southeast/East Asia and so these particular pictures were in fact most likely made in China, which would mean that copyright will have expired. As for Cengage, I am also not sure how they could claim copyright. However, while looking into this, I read that they might still claim copyright due to their having scanned the images, so I thought I'd check. I guess in any case the best thing to do would just be to scan the originals.
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