Digitised Archive Images

[nadinemuller]

Hello,

I would like to use a digitised image of an early-twentieth-century postcard (ca. 1908) in a short blog post on said image, i.e. for not-for-profit research. The image, held by the Women's Library, which was owned by Leeds Met but is now part of LSE, is watermarked by London Met (although it doesn't belong to them anymore) and is also linked to the Mary Evans Picture Library. MEPL states that to use an image from their online library one must purchase it, and I have emailed them to ask if they could supply a low-res version for free, for my blog post (am awaiting for a response).

But I wanted to know if I can use the image watermarked by London Met without permission? I can't post the link, but it can be found in a good resolution in the Women's Library online catalog (still hosted via London Met, as far as I can see).

And here are the copyright terms from MEPL (who also hold a watermarked version of the image, i.e. watermarked with "Mary Evans"):

"PICTURES VIEWED VIA ONLINE SEARCHES.

By conducting an online search, you implicitly agree to the following conditions in their entirety. If this is not acceptable, do not proceed with your on-line search.

Retention of scanned pictures: MEPL accepts that the client may store off-line (on one computer only) copies of low resolution images sourced via an on-line search conducted on the MEPL website. These pictures may be stored for selection purposes only. This does not entitle the client to any usage or reproduction rights. Clients may keep off-line copies of low resolution images for up to three months after which time they must be deleted. MEPL pictures are watermarked and unauthorised use can be detected electronically.

Passing on pictures: Scanned pictures may not be passed from one client to another, even within the same organisation, except by prior explicit agreement with MEPL.

Right to use: The acquisition of any image as a result of an on-line search on the MEPL website, confers no right to use it. This right is conferred only when an order is placed and fee agreed with MEPL for high resolution images which are supplied on-line, via CD-ROM or on photographic transparency, in which case the relevant Terms and Conditions for picture supply apply.

Rates: Although no charge is made for access to low resolution images sourced via an on-line search conducted on the MEPL website, it is the client's responsibility to be aware of our current rates of picture use, which are updated on 1st January each year. At this time all previous rates are invalid unless they are the subject of a specific agreement with MEPL."

I would obviously attribute the image to the source.

Any help would be much appreciated.

Thank you!

Nadine

[AndyJ]

Hi Nadine,
I think it is highly likely that a postcard from 1908 or thereabouts would now be in the public domain.
However the problem you have come up against is that by reproducing the postcard in digital format the picture library are claiming copyright in the reproduction as a 'new' and original work, so the copyright term for the digital image may have many years to run (the photographer's lifetime plus 70 years).
Were you to be seeking to do this in the USA, the likelihood is that the digital image would not gain copyright for lack of original input by the photographer. However in the UK (and indeed some other EU countries) the law is much less clear and is largely based on a case called Antiquesportfolio v Rodney Finch, the outcome of which tends to favour the position of the picture library.
In my view, this is an unfair use of copyright when there is clearly no creativity on the part of the person (or sometimes just a machine) who makes the digital reproduction. But currently, Government policy is tending to favour the entrepreneurial/commercial side of the argument, as opposed to the cultural side. The line taken is that, but for the enterprise and investment of the companies, works like your postcard would forever remain tucked away in some dusty archive and, with the exception of a few historians, society would not be enriched by knowledge of these things. That approach would be all well and good if the fees charged for licences etc to reproduce the new images were nominal and just designed to cover the costs of the processing (which is what a recent EU Directive aims to do). However the UK stance seems to be based on letting the 'market' decide the price of access - which allows the libraries and museums to run as businesses, rather than as social and cultural amenities.
Turning to your specific questions, I think that although the Terms and Conditions do not differentiate between watermarked and unmarked images, their clear intent is that no images should be used for any public use (as opposed to private study which is legally allowed anyway under the fair dealing exemptions) without a licence. The low-res image is supplied for reference purposes only. This is fairly standard practice for picture libraries. As the T&Cs imply, many picture libraries embed tracking information in their images which, although invisible, allow search programs to find an image which has been re-used without permission. It remains to be seen if the library will be happy to licence a low-res version of the picture to you for free or for a small fee.

[nadinemuller]

Thanks so much for the response, Andy! You've confirmed what I feared, and as you say it seems a very unfair use of copyright. If the aim of this line were really to make the material accessible to more people than just academics, then it has gloriously done the opposite, of course, by restricting rather than enabling its wider dissemination.

I suppose all I can do, then, is wait and see if the MEPL provides me with a low-resolution image for free or for a reasonable price and with permission to use it on my blog.

Again, thanks so much for clarifying this issue - it's a big help.

Just before I wanted to hit "submit" I received an email from MEPL and they offer me a "significantly reduced" rate of £25 to use the image on my blog.

This is quite ridiculous and I'm slightly angry?!

[AndyJ]

Hi Nadine,
Your reply and my postscript to the earlier post seem to have crossed each other. Anyway we now know what the MEPL think is a fair rate for use of the image. Did they stipulate whether this was for the low-res or normal resolution image? It would also be interesting to know whether they placed a limit on the time you can use the image.

[nadinemuller]

Here's the response, Andy (it seems there's no limitation and up to me choose the image size/ resolution?):

Thanks for your picture request for use of 10504291 on your blog. As a commercial picture library, we do have to make a charge for use of our images, but as this is just a one off use on a blog post, I’d like to offer you a significant reduction on our standard rates, and just charge £25+VAT for this picture. If you’re happy to proceed, let me know the file size you need the image to be, and your contact details(postal address and telephone number) so I can get you set up on our system, and have the file and invoice emailed over to you.

[AndyJ]

Well at least you can have a higher resolution image if you wanted. I would expect the invoice to contain some further restrictions on the duration of the licence if they do not appear in the MEPL's general conditions.
Good luck with your venture.

[ronS]

Presumably, though, if you can get hold of an original of the postcard (and it is out of copyright, as seems likely given its age), there will be no restrictions on you scanning that and using it on your blog item. It might be worth looking on the various websites that advertise postcards for sale in case it's available for under £25.