Using old book illustrations in a new book

'Is it legal', 'can I do this' type questions and discussions.
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Hampshire_hog
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Using old book illustrations in a new book

Post by Hampshire_hog »

Apologies if this has been covered before, but I am interested in using illustrations from old books, fiction and non-fiction to illustrate the content of my book, due to be published later this year, in the UK. It seems to me that if I can identify the illustrator and that they died 70 years ago, then I can simply scan the images to the correct resolution and publish them in their new context. Am I right? From what I have read here that seems to be right. But then when I look at the insides of the books I am using to scan them I come across things like: "all rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the proper permission of ...[insert publisher]"

When the book was published (1987), the illustrator was still under copyright.

Just to clarify, I have 4 books I want to use:
1) a facsimile (mostly) of a book published in 1987 first published in 1908. The illustrator (and author) died in 1940.
2) a compilation of written articles with illustrations, plus some modern comments, published in 1986, using articles and illustrations from the early twentieth century. Same illustrator as no. 1, so died in 1940.
3) a book of articles, original, published in 1931, by same author/illustrator. Died in 1940
4) a facsimile copy published in 1988, of a very rare book, first produced in 1908, only 75-100 copies. It has the addition of an introductory essay and foreword etc. The illustrator died in 1939. This says on the inside cover 'This edition C copyright 1988 SeTo Publishing Ltd. First published in Antarctica 1908.

Why would the publisher have copyright in these cases? Or is it that they did have copyright but that has since lapsed as the 70 years have gone by. Do I need to seek their permission?
Thank you for your help
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AndyJ
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Re: Using old book illustrations in a new book

Post by AndyJ »

Hi Hampshire_hog,

You don't mention the nationality of the illustrator or authors so initially I will assume that British copyright law applies here. The significance of this will become clear later on.

Let's deal first with why copyright may have applied at the date these later versions were published, before addressing your reasonable question about why the publisher might own the copyright in these cases. The copyright in an illustrated book will derive from the author and the illustrator's lives plus 70 years following their respective deaths*. Since at the time the compilation and the two facsimile versions were published copyright would have still been operative, in respect of the illustrator at least, the copyright notices reflect the situation at the date of re-publication. But as you rightly surmise, now that the illustrations are out of copyright because the artist died more than 70 years ago, you may reproduce them by scanning the book. This would be lawful even if the text of the book(s) remains in copyright because the author of the text had died more recently and his 70 year post mortem period had not yet elapsed. So in the case of example 4, the author of the introduction and foreword was obviously still alive in 1988 and so copyright in that particular part of the book will still be in copyright today.

The reason the publisher is claiming copyright in these cases is more obscure and is probably bogus. In the case of the original publisher, they will probably have acquired all the rights through a publishing contract, meaning that the author had assigned his/her publication right over to the publisher. In many cases this type of assignment is time-limited, meaning that the rights revert to the author after, say, 50 years or so many years from when the book goes out of print. In some exceptional cases the original publisher may have retained the rights for the full term, and the author and their heirs only earned royalties based on book sales. If the publisher commissioned the illustrations, it will be likely that they (the publishers) owned the copyright in the illustrations from the outset due to the way in which the law operated before 1956. If that was so, the illustrator will probably have been paid a fixed fee for his work and wouldn't have been entitled to royalties.

However it is unlikely that the original publisher will have been in a position to transfer these rights to the new publisher responsible for these new editions. It is much more likely that the new publisher knows that copyright the book has expired in a territory like the USA (due to the different rules which applied there in the early part of the twentieth century - more details here) and they think (incorrectly) that they can gain a new copyright by re-publishing the book. Since it is not illegal to make a false copyright notice, they probably calculate that most people will be scared off by the notice and they can maintain their monopoly over the work. Just to be clear, even if copyright had lapsed in the USA, if the author or illustrator were not US citizens, copyright in other countries will almost certainly still have been running in the late 1980s.

More charitably, but less probable, it could be that the new publishers have lawfully acquired the copyright at some stage, for example from the estate of the main author.

Just for the sake of completeness, there is a special form of copyright which does belong to a publisher, known as copyright in the typographical layout of an edition (see section 8 of the Copyright Designs and Patents Act 1988). But this only lasts for 25 years from the date that the first edition is published, and cannot be resurrected by re-publication, for instance, by means of a facsimile version.



* A work which is comprised of separate, distinct parts by two or more authors is known as a collective work. For instance, in a song, there may be a composer of the music and an author of the lyrics. Copyright in each part is based on the lifetime of the creator of that part, although the copyright in the complete collective work will be based on when the last of the individual contributors dies. This is contrast to a work of joint authorship, where the parts are inseparable, such as where there are two authors of the text of a book, in which case the term of copyright of the complete work is always determined by the last author to die.
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
Hampshire_hog
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Re: Using old book illustrations in a new book

Post by Hampshire_hog »

Thank you so much for your quick reply. This helps a lot and was the answer I was hoping for! And yes, the illustrator, authors are all British, so we're dealing with British law as you surmise.

Thanks again
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