I have been working with local schools for a few years now to build an online library of old images of our city to bring history to life for school kids. The site has no commercial element, it is purely educational and contains optimized web-images that would not print with any quality.
The images on the site come primarily from old postcards from the period 1900-1940 but also a small number of photographs from the same period.
I am confused about what the copyright law is relating to using these images in this way. When I started, I believed these images to be in the public domain because of their age but now I'm told that some form of retrospective copyright may be in force.
Can somebody clarify once and for all ?
Depending on the answer to the above, I'm also interested in what rights, if any, people have who may have published these images on their own websites or in "your city in old photos" style books. I am frequently plagued by people claiming they published the image first thus have some rights ...... which I'm sure is wrong.
Any help appreciated.
Copyright on old Edwardian photographs/postcards
The basic rule on copyright material* in the UK is that the period of copyright runs for 70 years from the end of the year in which the author/photographer dies. So realistically all the pictures you are dealing with could still be in copyright. If the postcards have the name of either the photographer or publisher on them, you at least have something with which to track down the current owner of the copyright - say a relative or heir.
But as I think you have already discovered, things are more complicated than that! Section 12(3) of the Copyright Designs and Patents Act 1988 provides that if the author is unknown, then the period of copyright of 70 years runs from the end of the year that the photograph was created or was first made available to the public, whichever is the later. Full details can be found here
Where the name of the author is known but it is impossible to find out when he died, the date of making/publication may also be used as the starting point in certain circumstances.
Section 57 of the Copyright, Designs and Patents Act 1988 says that copyright is not infringed if after reasonable inquiry the identiity of the author cannot be found and it is reasonable to assume that the author died more than 70 years ago. So taking an example of a postcard from 1900, the photographer might have been aged 25 at the time and gone on to live a further 50 years, so died in 1950. That would mean the copyright period has another ten and a half years to run. Is it reasonable to assume that the photographer was 25 at the time? I don't know the answer to that. But certainly for the pictures from the 1940s I don't think it would be reasonable to assume that the author is even dead, let alone that the 70 years period has elapsed.
There is some better news concerning the postcards. Where the date of publication is known, but neither the name of the author, nor the date of his death can be ascertained, Section 104 (5) says that the date of publication can be assumed as the starting point for calculating the copyright period (ie the 70 years). So any postcard from the period 1900-1939 where the name and and date of death of the author cannot be ascertained is now out of copyright under this rule. Obviously this is not much use if the date of publication is also not known.
You mention that this project is for educational purposes. However, although certain forms of copying of copyright works for educational purposes is permitted, this does not allow the copies to be communicated to the public, which of course is what would apply if these pictures were put on a website. Also you as an individual do not qualify as 'an educational establishment' for the purposes of this exemption.
So, to summarise, assuming that you cannot, after reasonable inquiry, discover the name of the author/photographer, but you can establish the date when the photograph was either taken or published, and this date is before 1940, then the picture is llikely to be out of copyright under the provisions of Section 12(3).
Your final point concerns what rights, if any, other people who have published the photographs can claim. If you have an original postcard or photographic print, then any rights in them are determined just by the various dates discussed above. However if you copy an image from a book of photographs then you may infringe the copyright of the author of the book. So the fact that you may have an original postcard, but that same picture has also been published in a book, does not give the book's author any claim unless he can show that he has an exclusive licence to publish the image. Even if he can show this, the relevant dates for determining the period of the licence are the same as for the copyright in the original image, and not the date of publication of the book etc. In the case of another website, because it is not protected by the typographical layout provisions which apply to a book, the site owner has no special claim to copyright in the image unless he is the author or can show that he has an exclusive licence to use the image.
* The period of copyright for performances, sound recordings and broadcasts etc is 50 years from the first performance, broadcast etc.
But as I think you have already discovered, things are more complicated than that! Section 12(3) of the Copyright Designs and Patents Act 1988 provides that if the author is unknown, then the period of copyright of 70 years runs from the end of the year that the photograph was created or was first made available to the public, whichever is the later. Full details can be found here
Where the name of the author is known but it is impossible to find out when he died, the date of making/publication may also be used as the starting point in certain circumstances.
Section 57 of the Copyright, Designs and Patents Act 1988 says that copyright is not infringed if after reasonable inquiry the identiity of the author cannot be found and it is reasonable to assume that the author died more than 70 years ago. So taking an example of a postcard from 1900, the photographer might have been aged 25 at the time and gone on to live a further 50 years, so died in 1950. That would mean the copyright period has another ten and a half years to run. Is it reasonable to assume that the photographer was 25 at the time? I don't know the answer to that. But certainly for the pictures from the 1940s I don't think it would be reasonable to assume that the author is even dead, let alone that the 70 years period has elapsed.
There is some better news concerning the postcards. Where the date of publication is known, but neither the name of the author, nor the date of his death can be ascertained, Section 104 (5) says that the date of publication can be assumed as the starting point for calculating the copyright period (ie the 70 years). So any postcard from the period 1900-1939 where the name and and date of death of the author cannot be ascertained is now out of copyright under this rule. Obviously this is not much use if the date of publication is also not known.
You mention that this project is for educational purposes. However, although certain forms of copying of copyright works for educational purposes is permitted, this does not allow the copies to be communicated to the public, which of course is what would apply if these pictures were put on a website. Also you as an individual do not qualify as 'an educational establishment' for the purposes of this exemption.
So, to summarise, assuming that you cannot, after reasonable inquiry, discover the name of the author/photographer, but you can establish the date when the photograph was either taken or published, and this date is before 1940, then the picture is llikely to be out of copyright under the provisions of Section 12(3).
Your final point concerns what rights, if any, other people who have published the photographs can claim. If you have an original postcard or photographic print, then any rights in them are determined just by the various dates discussed above. However if you copy an image from a book of photographs then you may infringe the copyright of the author of the book. So the fact that you may have an original postcard, but that same picture has also been published in a book, does not give the book's author any claim unless he can show that he has an exclusive licence to publish the image. Even if he can show this, the relevant dates for determining the period of the licence are the same as for the copyright in the original image, and not the date of publication of the book etc. In the case of another website, because it is not protected by the typographical layout provisions which apply to a book, the site owner has no special claim to copyright in the image unless he is the author or can show that he has an exclusive licence to use the image.
* The period of copyright for performances, sound recordings and broadcasts etc is 50 years from the first performance, broadcast etc.
Re: Copyright on old Edwardian photographs/postcards
This thread has just brought to my attention the use of old photographs, in this instance, from a local library. The images a marked public domain and the licence deatails are as follows:
License History
Note: There is no license history before July 17, 2008
Date July 31, 2016 at 1:59:49 PM GMT+1
Old License All rights reserved
New License Public Domain Work
Date July 31, 2016 at 2:08:15 PM GMT+1
Old License Public Domain Work
New License Public Domain Work
https://creativecommons.org/publicdomai ... .0/deed.en
there is this text printed above the dimensions of the photographs that permits you to download "License Public Domain Work Some rights reserved by Newcastle Libraries". There is no photographers name on 95% of these but a couple of names on others
I can only assume those rights refer to the catalogue number and the text description of the photograph. The photographs date from 1880-1982
I spend hours restoring many of those images, scratched,stained under exposed so dark some are barely recognisable I've changed some of the text, but don't know whether to omit the catalogue nmber..... will it make a significant difference?
The images (if allowed) would be sold on Alamy..... Alamy takes a 60% cut, my 40% will go to charity (Guide dogs for the blind)
Thanks in anticipation.
License History
Note: There is no license history before July 17, 2008
Date July 31, 2016 at 1:59:49 PM GMT+1
Old License All rights reserved
New License Public Domain Work
Date July 31, 2016 at 2:08:15 PM GMT+1
Old License Public Domain Work
New License Public Domain Work
https://creativecommons.org/publicdomai ... .0/deed.en
there is this text printed above the dimensions of the photographs that permits you to download "License Public Domain Work Some rights reserved by Newcastle Libraries". There is no photographers name on 95% of these but a couple of names on others
I can only assume those rights refer to the catalogue number and the text description of the photograph. The photographs date from 1880-1982
I spend hours restoring many of those images, scratched,stained under exposed so dark some are barely recognisable I've changed some of the text, but don't know whether to omit the catalogue nmber..... will it make a significant difference?
The images (if allowed) would be sold on Alamy..... Alamy takes a 60% cut, my 40% will go to charity (Guide dogs for the blind)
Thanks in anticipation.
Re: Copyright on old Edwardian photographs/postcards
Hi EkStrod and welcome to the forum,
Once a work is in the public domain because of its age, that is to say the copyright term has expired, you do not need a licence to copy, modify or publish it. So for example, photographs dating back to the 1880s will be in this situation. This applies irrespective of whether or not the images have previously been published by the author.
More recent photogaphs, such as those from the 1982 end of your scale, will still be in copyright and so having a valid Creative Commons licence for each one is essential. Provided it is the CC 1 (or CC0) licence in every case, then you do not need to attach any attribution such as the photographer's name etc, but you must attach the licence details just as you have done in the posting so that others know that you are relying on it.
The bit about Newcastle Libraries reserving some rights is nonsense as far a copyright is concerned. If the photographs are out of copyright due to their age, there are no rights attached to them*. And if they are still in copyright, it is highly unlikely that the Library owns that copyright today, since copyright has to be assigned in writing by the original owner. I think you can ignore that bit as just boilerplate jargon. (You might find this dispute relating to spurious claims by libraries and art galleries interesting).
As for the modifications which you have made in restoring the images, it is unlikely that such work, however detailed, will attract any new copyright protection. Editing is usually considered to be de minimis, that is to say not sufficiently creative to meet the originality threshold necessary for copyright. This may seem unfair as you probably spent far more time and effort in restoring the images than the photographer did when taking them. However, effort or manual skill (this used to be referred to as 'sweat of the brow') are not the criteria which are now used to judge originality; today it is based on the creative choices freely made by the artist, which reflect his or her personality, that are used to judge whether copyright applies. See the Panier case from the Court of Justice of the European Union, for an illustration of how this process of evaluation works. Ideally read the whole judgment to get the full context, but if you are in a hurry, read from paragraph 85.
As for the last step, releasing your cleaned up images through an agency, legally speaking there is nothing to stop you doing so provided that you know that the images are in the public domain due to copyright having lapsed, or have what you judge to be a valid CC1 licence. However other CC licences, if they apply, will need checking carefully as some contain an NC (no commercial exploitation) condition which means that you can't sell copies of your modified versions. The reasoning behind the NC condition is that since anyone can already use the images for free, provided that they also follow the same CC licence terms, you would have no grounds for an infringement claim against a person who used your modified images without paying for a licence, since by definition the CC licence was all that they needed. You would need to check with Alamy how they feel about the situation because obviously they would also be unable to claim infringement on your behalf if the images were used without an Alamy licence. This would undermine both their business model and their credibility as a reputable picture agency. Perhaps a better approach might be to use a site such as Etsy or Deviant Art where you can invite people to pay for your restoration work, knowing that the proceeds are going to Guide Dogs. That way you would be remunerated for your extra work, and wouldn't have to rely on asserting a dubious claim to copyright arising from the original photograph.
* The standard claim is that the library or museum or art gallery etc owns a copyright in the scanned image of the original work. Since such scanning is a purely mechanical, automated process it invariably fails the creativity test and so no new copyright exists in the scanned (digital) version of the image. For various obvious reasons, museums and galleries in the UK have carefully steered away from testing this proposition in court, because the prevailing legal opinion is that they will lose. Historically the classic test case on the subject in the USA was Bridgeman Art Library v Corel Corp. Although this was fought under the US law of copyright, the judge deliberately applied UK law when reaching his decision in the case, as Bridgeman is a UK company. A slightly less clear cut case in the UK was Antiquesportfolio.com plc v Rodney Fitch & Co Ltd - less clear cut because there were several other factors such as contract law and deceptive practices involved in the overall decision. Furthermore the Antiquesportfolio case was decided at a time when the 'sweat of the brow' doctrine was used to judge originality; this is no longer the correct yardstick.
Once a work is in the public domain because of its age, that is to say the copyright term has expired, you do not need a licence to copy, modify or publish it. So for example, photographs dating back to the 1880s will be in this situation. This applies irrespective of whether or not the images have previously been published by the author.
More recent photogaphs, such as those from the 1982 end of your scale, will still be in copyright and so having a valid Creative Commons licence for each one is essential. Provided it is the CC 1 (or CC0) licence in every case, then you do not need to attach any attribution such as the photographer's name etc, but you must attach the licence details just as you have done in the posting so that others know that you are relying on it.
The bit about Newcastle Libraries reserving some rights is nonsense as far a copyright is concerned. If the photographs are out of copyright due to their age, there are no rights attached to them*. And if they are still in copyright, it is highly unlikely that the Library owns that copyright today, since copyright has to be assigned in writing by the original owner. I think you can ignore that bit as just boilerplate jargon. (You might find this dispute relating to spurious claims by libraries and art galleries interesting).
As for the modifications which you have made in restoring the images, it is unlikely that such work, however detailed, will attract any new copyright protection. Editing is usually considered to be de minimis, that is to say not sufficiently creative to meet the originality threshold necessary for copyright. This may seem unfair as you probably spent far more time and effort in restoring the images than the photographer did when taking them. However, effort or manual skill (this used to be referred to as 'sweat of the brow') are not the criteria which are now used to judge originality; today it is based on the creative choices freely made by the artist, which reflect his or her personality, that are used to judge whether copyright applies. See the Panier case from the Court of Justice of the European Union, for an illustration of how this process of evaluation works. Ideally read the whole judgment to get the full context, but if you are in a hurry, read from paragraph 85.
As for the last step, releasing your cleaned up images through an agency, legally speaking there is nothing to stop you doing so provided that you know that the images are in the public domain due to copyright having lapsed, or have what you judge to be a valid CC1 licence. However other CC licences, if they apply, will need checking carefully as some contain an NC (no commercial exploitation) condition which means that you can't sell copies of your modified versions. The reasoning behind the NC condition is that since anyone can already use the images for free, provided that they also follow the same CC licence terms, you would have no grounds for an infringement claim against a person who used your modified images without paying for a licence, since by definition the CC licence was all that they needed. You would need to check with Alamy how they feel about the situation because obviously they would also be unable to claim infringement on your behalf if the images were used without an Alamy licence. This would undermine both their business model and their credibility as a reputable picture agency. Perhaps a better approach might be to use a site such as Etsy or Deviant Art where you can invite people to pay for your restoration work, knowing that the proceeds are going to Guide Dogs. That way you would be remunerated for your extra work, and wouldn't have to rely on asserting a dubious claim to copyright arising from the original photograph.
* The standard claim is that the library or museum or art gallery etc owns a copyright in the scanned image of the original work. Since such scanning is a purely mechanical, automated process it invariably fails the creativity test and so no new copyright exists in the scanned (digital) version of the image. For various obvious reasons, museums and galleries in the UK have carefully steered away from testing this proposition in court, because the prevailing legal opinion is that they will lose. Historically the classic test case on the subject in the USA was Bridgeman Art Library v Corel Corp. Although this was fought under the US law of copyright, the judge deliberately applied UK law when reaching his decision in the case, as Bridgeman is a UK company. A slightly less clear cut case in the UK was Antiquesportfolio.com plc v Rodney Fitch & Co Ltd - less clear cut because there were several other factors such as contract law and deceptive practices involved in the overall decision. Furthermore the Antiquesportfolio case was decided at a time when the 'sweat of the brow' doctrine was used to judge originality; this is no longer the correct yardstick.
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
Re: Copyright on old Edwardian photographs/postcards
First let me say a whole hearted thanks for the extensive reply and illuminating this minefield of facts. I am really confused by one section of your reply when you state that the later photographs, 1982, will still be in copyright even though they have a PDM as 1.0. then the phrase that refers under jurisdiction "...A work free of copyright restrictions in one jurisdiction may not be similarly free in other jurisdiction" Any thoughts on this please.
Re: Copyright on old Edwardian photographs/postcards
You may regret asking your supplementary question. It gets very complicated from here on...
The usual rule which applies to all works subject to copyright is that protection lasts for the lifetime of the author plus 70 years after the end of the year in which they died. However this has not always been the case.
USA. Prior to the 1976 Copyright Act in the USA copyright had a fixed term and depended on the author or owner registering their work to obtain copyright. Of course not all works were registered and so under US law they were immediately in the public domain. The provisions of the 1976 Act were retrospective and complicated. In fact, so complicated that Cornell University have created an online tool for determining where copyright was revived and for its duration.
UK. Another idiosyncracy, this time under UK law, is that up until the 1988 Copyright Designs and Patents Act, photographs created in the UK were subject to special treatment first set out in the 1911 Copyright Act. This said that all photographs were subject to a fixed term of protection lasting for 50 years from the date they were created. The 1988 Act brought the protection of photographs in line with other artistic works and so they became subject to the then rule of lifetime plus 50 years protection. This was not retrospective for any all photographs already in copyright under the provisions of the 1911 Act, so the new lifetime plus 50 years only applied to photographs made after 1 August 1989 when the 1988 Act came into to force. However in 1995 the EU introduced new regulations which extended the copyright term to the lifetime of the author plus 70 years, and this applied to any work which was still in copyright in a member state on 1 July 1995. In other words even works protected under the 1911 Act which had been made after 1 Jan 1945 became subject to the new lifetime plus 70 years rule. Which is all very well if you know when a photographer died. If you cannot find their date of death, the term becomes 70 years from the date the work was created.
All of that means that a photograph created in one territory might have an entirely different copyright term compared to another photograph created on the same date in another territory. and so they will have entered or will enter the public domain at hugely different times.
Reciprocity. In theory, due to international treaties, a second country is only required to provide the same protection as would be available in the country of origin, unless this would exceed to term available for works produced in the first country. The EU regulations upset this arrangement by mandating that works produced within the EU (which of course then included the UK) were to be given a uniform term of protection throughout the EU member states based on the situation as at July 1995. At that time Spain, for instance, had a copyright term of life + 80 years for authors who died before 7 December 1987. And France had complicated rules that added extra years onto the post mortem period for authors who died while fighting for their country during the First and Second World Wars.
You can perhaps see why I left all that detail out of my first reply.
The usual rule which applies to all works subject to copyright is that protection lasts for the lifetime of the author plus 70 years after the end of the year in which they died. However this has not always been the case.
USA. Prior to the 1976 Copyright Act in the USA copyright had a fixed term and depended on the author or owner registering their work to obtain copyright. Of course not all works were registered and so under US law they were immediately in the public domain. The provisions of the 1976 Act were retrospective and complicated. In fact, so complicated that Cornell University have created an online tool for determining where copyright was revived and for its duration.
UK. Another idiosyncracy, this time under UK law, is that up until the 1988 Copyright Designs and Patents Act, photographs created in the UK were subject to special treatment first set out in the 1911 Copyright Act. This said that all photographs were subject to a fixed term of protection lasting for 50 years from the date they were created. The 1988 Act brought the protection of photographs in line with other artistic works and so they became subject to the then rule of lifetime plus 50 years protection. This was not retrospective for any all photographs already in copyright under the provisions of the 1911 Act, so the new lifetime plus 50 years only applied to photographs made after 1 August 1989 when the 1988 Act came into to force. However in 1995 the EU introduced new regulations which extended the copyright term to the lifetime of the author plus 70 years, and this applied to any work which was still in copyright in a member state on 1 July 1995. In other words even works protected under the 1911 Act which had been made after 1 Jan 1945 became subject to the new lifetime plus 70 years rule. Which is all very well if you know when a photographer died. If you cannot find their date of death, the term becomes 70 years from the date the work was created.
All of that means that a photograph created in one territory might have an entirely different copyright term compared to another photograph created on the same date in another territory. and so they will have entered or will enter the public domain at hugely different times.
Reciprocity. In theory, due to international treaties, a second country is only required to provide the same protection as would be available in the country of origin, unless this would exceed to term available for works produced in the first country. The EU regulations upset this arrangement by mandating that works produced within the EU (which of course then included the UK) were to be given a uniform term of protection throughout the EU member states based on the situation as at July 1995. At that time Spain, for instance, had a copyright term of life + 80 years for authors who died before 7 December 1987. And France had complicated rules that added extra years onto the post mortem period for authors who died while fighting for their country during the First and Second World Wars.
You can perhaps see why I left all that detail out of my first reply.
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
Re: Copyright on old Edwardian photographs/postcards
Thank you, an absolute minefield. Couple of final thoughts if you can give me a definitive answer....Many of the photos allured to have this statement "There is no license history before July 17, 2008" does this mean there has never been a copyright. Do you think I should stick to photos pre 1950 to avoid any issues. Thanks for your input.
Re: Copyright on old Edwardian photographs/postcards
I think the statement "There is no license history before July 17, 2008" is fairly meaningless beyond the actual statement being made. It implies that copyright exists in the image but that is all you can say, The spelling 'license' suggest this is from an American source, which as I indicated, means that you need to know quite a bit more about the provenance of each specific image to determine whether it is free of copyright, or if not, when it might enter the public domain.
And for the same reason I don't think you can make any assumptions about pre-1950 images, if any work orginiated in the USA. To be guaranteed to be out copyright in the USA you need to go back 1929, because the US law automatically applies a cut-off of 95 years for older works which are not subject to the newer lifetime + 70 years regime. Similarly for works which may have originated in the EU (other than the UK): for example, a photograph made in Germany in 1950 might have been taken by a 25 year old photographer who didn't die until 2000 when he was aged 75, meaning that his work will be in copyright until I january 2071.
And for the same reason I don't think you can make any assumptions about pre-1950 images, if any work orginiated in the USA. To be guaranteed to be out copyright in the USA you need to go back 1929, because the US law automatically applies a cut-off of 95 years for older works which are not subject to the newer lifetime + 70 years regime. Similarly for works which may have originated in the EU (other than the UK): for example, a photograph made in Germany in 1950 might have been taken by a 25 year old photographer who didn't die until 2000 when he was aged 75, meaning that his work will be in copyright until I january 2071.
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