Using picture in a 1908 book

[MGL]

I own a 1909 edition of the book Memoires of Mademoiselle George by Paul Cheramy and published by Eveleigh Nash which inlcudes a picture that I would like to scan and use in a self-published book.

The picture is an engraving\print based on a painting by Gerard, but it is not clear who the artist of the derivative work is. At the bottom right of the picture I think I can read "Mc Queen se", but I am only sure of the text "ueen". I know that MCQueen were printers.

As the book was published in 1909 and the artist of the print is unidentifiable, can I assume the copyright was held by the printer or publisher and has subsequently expired?

I know that the French version of the book, inlcluding the picture, is available on the Gutenberg website, which suggests it is in the public domain.

This version of the book also included the following declaration of reproduction rights:

Tous droits de reproduction et de traduction réservés pour tous pays.
Published 17 June 1908.
Privilege of copyright in the United States reserved under the Act
approved March 3d 1905 by Plon-Nourrit et Cie.

[AndyJ]

Hi MGL,
From what you have said, and from the frontispiece of the Kindle version (available here on Amazon) this book seems to have been first published in France, and so we should apply French law as it stood at that time (1909) and we can also probably assume that the engraver was French. I don't think the original painting or artist need to be considered.
I don't know enough about French law at the start of the twentieth century to be certain if an engraving of a painting would have qualified as an original work (l'œuvre de l'esprit d'auteur) at that time, but it seems likely. So if we assume that the engraver was not younger that 20 years of age in 1909 and that he lived to the age of seventy (that is, he died in 1959), under the 1957 Act which then applied, he would have been entitled to a further 50 years post mortem of copyright protection, (so until 1 January 2010) except that the EU Copyright Term Directive (93/98 EEC), brought into French law by Loi n° 97-283 (French text), extended the duration of copyright to 70 years post mortem, for any works then still in copyright. This would have taken the duration in the hypothetical case of a 20 year old engraver, to 1 Jan 2030. However if the engraver had been aged 40 at the time the book was published and lived to 70 years of age, his copyright would have expired at the end of 1989, and would not have been affected by the EU Directive.
Not an entirely satisfactory answer I'm afraid, but it gives you some guidelines for what may be a reasonable assumption in relation to the date of death of the engraver.
If you intend to publish your book in the UK, then section 57 (1) of the Copyright Designs and Patents Act is relevant here. It says:

57 Anonymous or pseudonymous works: acts permitted on assumptions as to expiry of copyright or death of author.
(1) Copyright in a literary, dramatic, musical or artistic work is not infringed by an act done at a time when, or in pursuance of arrangements made at a time when—

• (a) it is not possible by reasonable inquiry to ascertain the identity of the author, and
  (b) it is reasonable to assume—
  • (i) that copyright has expired, or
    (ii) that the author died 70 years or more before the beginning of the calendar year in which the act is done or the arrangements are made.

Just be thankful that due to a French court decision in 2007, we no longer need to take into account some unique French law which added extra years of protection to copyright due to the intervention of the First and Second World Wars. (More detail here (in French))

[typonaut]

Privilege of copyright in the United States reserved under the Act
approved March 3d 1905 by Plon-Nourrit et Cie.

As far as copyright protection goes in the USA, any work prior to 1923 is expired (at the current time), due to the provision of a new Act that came into force in that year. This may be what Project Gutenberg relies upon.

All works created after 1923 are protected in the USA until 2018 (thanks to the Sonny Bono sponsored copyright term extension Act). Look forward to a new round of lobbying in the USA over the next five years for a further term extension law.

[AndyJ]

Hi Typo,
Now it's my turn to wield the sword of pedantry.

All works created after 1923 are protected in the USA until 2018 (thanks to the Sonny Bono sponsored copyright term extension Act).

Not all works created after 1923 are caught by the Sonny Bono Copyright Term Extension Act. It only applies to works made after 1923:

• a. which were still protected by copyright on 1 January 1978 by virtue of being in their first 28 year term after initial registration (Title 17 USC § 304(a) refers), in which case they get an extra 67 years protection on top of the term of the first registration,
  or
  b. if the copyright was in its second (ie renewal) 28 year term at the date of the Sonny Bono Act becoming effective (27 October 1998), then the work would be entitled to a total term of 95 years (that is to say including the 56 years already available through registration) (Title 17 USC § 304(b) refers)

So clearly there are a great many works which would not benefit:

• a. Works which although created after 1923 were not entitled to copyright because they were never registered.
  or
  b. Works which although first registered, that first term of 28 years had expired without renewal before 1 January 1978.

A surprisingly large number of works of literature can be found in category b. (See, for example research by Prof Paul Heald from the University of Illinois)

[typonaut]

Prof Paul Heald from the University of Illinois

off-topic-rant

Ah, well that will be a familiar name, though I have not read that particular paper. Not overly impressed with his methodolgy and conclusions elsewhere (if you do a study of ~350 books and you find that there is no price differential between protected and expired works, is it really honest to look at just 40 of those and then conclude that there is a differential? And then cite that same difference in a later paper as evidence of the costs imposed by copyright!?).

He will be speaking at the University of Cambridge 28th February, discussing his study of audiobooks. In which he also seems to find that protected works are more expensive than expired ones, despite the fact that his full sample shows that there is no difference!?

/off-topic-rant

[MGL]

Thank you both for your answers. I especially appreciate the quoted section on what can be reasonably assumed.