Colouring and Restoring old photos

'Is it legal', 'can I do this' type questions and discussions.
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Simon
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Colouring and Restoring old photos

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I run a Local Facebook History group online and I have been collecting old images from various online sources for about 15 years, in the last 12 months I have repaired --restored, and colored some of these images and posted them into the History group . I do not sell any of the images or intend to do so as the group is about local history but I am concerned about copyright issues . What got me worried was when a lady commented on a Francis Frith image dated around 1870 that I had colored and restored to a high standard, she said I have just bought this image from Francis Frith but in its original unrestored black and white format and I might ring Francis Frith for a refund so this got me worried and I have now ceased work on any images and paused posting images into the group.

Any advice would be appreciated as I have serious medical issues and this activity kept my mind active and I really enjoy history and photography.
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AndyJ
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Re: Colouring and Restoring old photos

Post by AndyJ »

Hi Simon,

As you have probably discovered in doing your hobby, libraries, archives and museums which hold quantities of old photographs are often very confused about copyright and generally tend to claim copyright exists even for very old images which are indubitably no longer in copyright 'just to be on the safe side'. And then you have companies like Francis Frith Collection who plaster their images with copyright notices which are in many cases, patently false. There the motive is to maintain a monopoly and make money from it. However it is not technically illegal to do this and so they continue to do it. Let me make it clear however that I am not talking about all FF images. Those from the late 1940s onwards are still in copyright. And if you do order prints from the company via their webiste you would be bound by the terms and conditions of that sale, which include what can be done with those prints - that is a matter of contract law not copyright.

But if you discover an old Francis Frith post card which clearly dates from before 1945 you can freely scan it and adapt it by colourizing it as it will be in the public domain. Taking stuff from the internet is somewhat more tricky as you cannot be as sure about the provenance of the image, but if you are reasonably sure it is not a recent Francis Frith Collection print, and it dates from before 1945, then again you can assume the image is in the public domain and free from copyright. This is because under the copyright law which existed up until July 1995, the copyright term for photographs was fifty years from the date they were made. This applied to all photographs irrespective of whether they had been published or not.

Much the same applies to any old photograph which was made before 1945 irrespective of who the current owner may be: copyright in the image will no longer exist, but there may be other contractual terms which cover use of a reproduction of the image. For example the National Portrait Gallery provide a free low resolution version of some of their holdings but charge a licence fee for the higher resolution version. Since they can control access to the works they hold, this then becomes a condition of doing business with them, rather than a copyright issue.

Separate to all this is the issue of some custodians of old photographs claiming that they hold a (new) copyright in the digitized version of the original photograph. In 90% of cases these claims are bogus because no human skill or creativity will have been expended in making the digital scan, which will have been performed by a machine assisted by the appropriate software. The 10% which might qualify for the new copyright will include those where a human photo restorer has used his skill and judgement to restore a badly damaged image. But even then the new copyright would only apply to the 'new' parts which the restorer had recreated because the details were missing in the original.
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
Simon
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Re: Colouring and Restoring old photos

Post by Simon »

Thank you Andy that clears up most of the points I was worried about apart from one which you may have covered If somebody bought a print of say Francis Frith dated before 1900 and then proceeded to scan it and upload it to the net and then I came across it and downloaded it and restored that image would myself or the person who originally uploaded be in breach of contract law as Francis Frith forbid you from reproducing an image bought off them even I guess images out of copyright.
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AndyJ
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Re: Colouring and Restoring old photos

Post by AndyJ »

Hi Simon,
As I mentioned, in that scenario, if the print had originally been obtained from the FF Collection by a third party, the contractual relationship would be between that person and FF collection. You would not be bound by that contract as you were not a party to it. Therefore FF Collection would have no claim against you for something you did with an image which had been made available by the third party, even if that was in contravention of FF's sales agreement. FF would have a very hard time convincing a court that they had obtained a new copyright in their scanned version of the original photograph, for the reasons I mentioned before, namely that there will have been little or no human intervention in the scanning/digitization process.
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
Simon
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Re: Colouring and Restoring old photos

Post by Simon »

Dating and researching the original photographer and the information you have given me regarding copyright gives me a firmer base to work from and at the end of the day, I am not selling any of the images just using them for a local history group.

Thanks Andy
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