Use of band images, posters, gig tickets and bootleg vinyl in online library archive

[SB89]

Hi

Does anyone have any experience re this issue:

Is the proposed use of photographs of bands (taken by members of the public and photographers at shows) in the early and mid-1980s, in an online library archive covered by permitted acts in the CDPA or is the consent of the photographer, and the band required for such use?

If yes would this also cover recent photographs taken of gig memorabilia from the 1980s including posters, gig tickets and bootleg vinyl of well known bands (including audio).

Some photographs (of the original photographs of bands, tickets, posters etc) have been donated by the original photographers whereas the identity of some original photographers are unknown.

Please let me know if additional information is required.

Many thanks

[AndyJ]

Hi SB89 and welcome to the forum.

I assume that you are asking from the perspective of the online library/archive. The answer is that all the images require the photogapher's permission, irrespective of whether they are taken by professionals or just fans. In the case of fans, they may be happy to give permission for free whereas professional photographers are more likely to want a licence fee. This applies even if you can't identify the photographer. You should do a reverse image search to try and find where the image(s) you are interested in first originated, and this may provide a clue to the identity of the copyright owner. I can't see any of the fair dealing exceptions applying to your online archive. The same procedure also applies to posters and to a lesser extent, gig tickets. Bootleg vinyl is doubly problematic since it is already an infringement of the artist or band's rights, and if you then copy the bootleg recording you run the risk of facing a criminal charge for infringement, rather than a civil claim as would be the case with the images. For legitimate recordings, the copyright owner of a recording is usually the producer so their permission would be required in addition to the performer's.

If some photographers have already said that it is OK to use their images, make sure you document these permissions. I would also suggest you do a bit of due diligence to satisfy yourself that they really are the copyright owner in each case.

Just to be clear, even if you were collecting these images and other memorabilia for your own personal collection, that technically still requires permission, but since no-one is likely to know about your collection you are unlikely to face any claims. However since you are proposing to create an online archive, which makes the material available to the publice, you are running a very great risk of infringing contray to section 16 of the Copyright Designs and Patents Act 1988 if you do not get the necessary licences/permission. And if you think that you may get away with it by staying under the radar, take a look at the many other threads on this forum started by others who are now facing large claims for neglecting to get a licence at the appropriate time.

[SB89]

Hi AndyJ

Thank you very much for your prompt and detailed response, it is much appreciated and noted.

Just to clarify:

1. there is no requirement to obtain the permission of the bands in the images, or creators of the event posters in addition to the photographers?
2. Is it appropriate to obtain an orphan works licence in this context where the photographer cannot be located;
3. re images of old event advertisements that were featured in publications like Melody Maker and the NME would the permission of the relevant publication be required to use these in the online archive?
4. re members of the public who may feature in photographs at the venues are there any copyright implications re the individuals in the photographs, or are these ok to be used subject to compliance with relevant GDPR provisions?
5. Presumably the above mentioned works may be used by the archive generally (not online) without the consent of the relevant copyright holders in line with the non-commercial use and private study exception.

Many thanks!
SB

[AndyJ]

Hi SB,

1. Generally there is no need to get permission from the subject of the photographs. The two main exceptions to this rule, which probably won't apply to the sort of images you want to use, are where the subject can invoke their right to privacy in his/her domestic or family setting (Article 8 of the European Convention of Human Rights as reflected in the UK Human Rights Act 1998), or where the photograph implies that the celebrity is endorsing a product (the tort of passing off).

2. Yes, you could certainly apply for an orphan works licence for any work where the copyright owner can't be identified, provided that you have conducted a diligent search for the owner beforehand. Be aware that an OW licence is only valid for 7 years, although the licence can be renewed subject to paying an additional fee. This might have implications for the longterm viability of the archve.

3. Copyright in images within adverts in the music press will belong to the advertisers, not the magazine. Obviously with any editorial photographs copyright will belong to either the magazine or the freelance photographer who took them.

4. Same answer as No 1. If individuals are in a venue to which the public have access, then there can be no expectation of privacy.

5. It is important that the exception in section 29 for the purpose of private study is not applied too broadly or it will fail to be treated as fair dealing. And making the archive available to the public, even if this is not technically for commercial purposes, would probably mean it was no longer fair dealing under that section. Note that Section 29B, which was added to the Copyright Designs and Patents Act in 2014, was later revoked as it did not comply with the EU law at the time which said that copyright owners were to receive fair compensation for such acts of copying. The exact distinction between 'private study' and 'personal use' has not been examined by the courts.

[SB89]

So helpful, thank you!