A company (Media Storehouse) is offering for sale through Amazon a print that I would like to use to accompany a magazine article.
The Amazon page says nothing about restrictions on the use of the photograph. It simply says © Copyright [the name of the museum that owns the negative].
The photograph was taken between 1908 and 1934, when the subject died. I think this means that the copyright expires, so is there any reason why I shouldn't buy a print and use it as I wish?
Hoping you can help.
Another query about images
Re: Another query about images
To correct the above, that should have read "the copyright has expired, so is there any reason why I shouldn't buy a print and use it as I wish?
To add an extra bit of information; the picture is of the chairman of a major early-20th century company and was almost certainly used for publicity purposes and therefore will have been published soon after it was taken. From the look of the subject it was very likely taken nearer 1908 than 1934.
To add an extra bit of information; the picture is of the chairman of a major early-20th century company and was almost certainly used for publicity purposes and therefore will have been published soon after it was taken. From the look of the subject it was very likely taken nearer 1908 than 1934.
Hi ronS,
As you may be aware from other threads on this site, photographs made before 1 June 1957 (when the Copyright Act 1956 came into force) are treated somewhat differently to most other forms of copyright work. The general rule for them is that copyright exists for 50 years from the date they were made or were published, whichever is the later. So if the original photograph was published in the first half of the last century then it will almost certainly be out of copyright now. Different rules apply to unpublished photographs, but that would seem to be irrelevant in this case.
But, all that applies to the original negative and any prints made at the time of publication. In order to reproduce image in the form being published by Media Storehouse I imagine they may have made a scan and the prints they are selling have been processed and printed digitally. If this is the case, they or the museum may be claiming copyright in this new version, which if it is true, means they (the modern prints) are not in the public domain. This is a very muddled area of law. For example the courts have found that where a photographer photographs a painting or a piece of artistic craftsmanship, using his skill and judgement to accurately record the work, then he can be entitled to copyright in the new image he has created. But theoretically if the same process of reproduction is carried out by a mechanical process, such as scanning or photocopying, there is no human creativity involved and so copyright cannot subsist in the reproduced image.
Museums and archives derive quite a bit of their income from sales of such reproductions and so they generally will not admit that something is actually in the public domain if it might damage their monopoly right to market the item. For this reason I would advise caution before using the Media Storehouse print for your magazine article, as I cannot be sure how it was made and whether there might be a legitimate claim to revived copyright in this case. The problem with copyright notices is that anyone can affix whatever they like to an article because there is no law which prohibits making a false claim to copyright.
Armed with the legal situation as I have outlined it, it might be worth contacting the museum to challenge their assertion of copyright. If they cannot provide reasonable evidence to back up their claim for a revived copyright, then I think you would be on firm ground to assume this is a bogus claim and that you are free to use the work without restriction.
As you may be aware from other threads on this site, photographs made before 1 June 1957 (when the Copyright Act 1956 came into force) are treated somewhat differently to most other forms of copyright work. The general rule for them is that copyright exists for 50 years from the date they were made or were published, whichever is the later. So if the original photograph was published in the first half of the last century then it will almost certainly be out of copyright now. Different rules apply to unpublished photographs, but that would seem to be irrelevant in this case.
But, all that applies to the original negative and any prints made at the time of publication. In order to reproduce image in the form being published by Media Storehouse I imagine they may have made a scan and the prints they are selling have been processed and printed digitally. If this is the case, they or the museum may be claiming copyright in this new version, which if it is true, means they (the modern prints) are not in the public domain. This is a very muddled area of law. For example the courts have found that where a photographer photographs a painting or a piece of artistic craftsmanship, using his skill and judgement to accurately record the work, then he can be entitled to copyright in the new image he has created. But theoretically if the same process of reproduction is carried out by a mechanical process, such as scanning or photocopying, there is no human creativity involved and so copyright cannot subsist in the reproduced image.
Museums and archives derive quite a bit of their income from sales of such reproductions and so they generally will not admit that something is actually in the public domain if it might damage their monopoly right to market the item. For this reason I would advise caution before using the Media Storehouse print for your magazine article, as I cannot be sure how it was made and whether there might be a legitimate claim to revived copyright in this case. The problem with copyright notices is that anyone can affix whatever they like to an article because there is no law which prohibits making a false claim to copyright.
Armed with the legal situation as I have outlined it, it might be worth contacting the museum to challenge their assertion of copyright. If they cannot provide reasonable evidence to back up their claim for a revived copyright, then I think you would be on firm ground to assume this is a bogus claim and that you are free to use the work without restriction.
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
Thanks for such a prompt reply and for the most helpful advice.
As you say, museums are depending more and more on revenue from licensing pictures but some of them are beginning to get greedy, to the point at which using their illustrations in small, specialist publications is now becoming an economic impossibility.
One, for example, charges £70 for the right to use one of their pictures in a book, plus £10 for the print itself. That comes to around £1,000 for a dozen pictures which might come to more than my royalties in some cases.
It's a bit naughty when we, through our taxes, have paid for these collections to be created in the first place.
The problem will come, I suppose, if I ever want to use a picture which I can only source from them. If I've upset them by challenging their copyright, I might find that it's not available to me.
As you say, museums are depending more and more on revenue from licensing pictures but some of them are beginning to get greedy, to the point at which using their illustrations in small, specialist publications is now becoming an economic impossibility.
One, for example, charges £70 for the right to use one of their pictures in a book, plus £10 for the print itself. That comes to around £1,000 for a dozen pictures which might come to more than my royalties in some cases.
It's a bit naughty when we, through our taxes, have paid for these collections to be created in the first place.
The problem will come, I suppose, if I ever want to use a picture which I can only source from them. If I've upset them by challenging their copyright, I might find that it's not available to me.
Hi ronS,
You highlight a second issue which is that museums etc can control access to the original works even though there may be no intellectual property rights remaining. So for example if you were able to gain access to the original negative or print which you want to use, then copyright law would not prevent you from making a copy of it. However in many instances the museum or archive will deny access to the original on the grounds that there is a perfectly acceptable reproduction available, citing the need to conserve or preserve to original.
It is all the more galling when these institutions have been the main movers behind recent legislation to allow them to exploit their stocks of so-called orphan works, ostensibly for the cultural enrichment of society, but clearly with an eye to income. The EU has issued a Directive which allows orphan works to be legally accessed and made available by public libraries, archives and museums on condition that only the costs of digitising the works may be charged to users. However the UK legislation (although not yet in force) on this makes no such stipulation about charges or fees which may be levied by the museums etc.
You highlight a second issue which is that museums etc can control access to the original works even though there may be no intellectual property rights remaining. So for example if you were able to gain access to the original negative or print which you want to use, then copyright law would not prevent you from making a copy of it. However in many instances the museum or archive will deny access to the original on the grounds that there is a perfectly acceptable reproduction available, citing the need to conserve or preserve to original.
It is all the more galling when these institutions have been the main movers behind recent legislation to allow them to exploit their stocks of so-called orphan works, ostensibly for the cultural enrichment of society, but clearly with an eye to income. The EU has issued a Directive which allows orphan works to be legally accessed and made available by public libraries, archives and museums on condition that only the costs of digitising the works may be charged to users. However the UK legislation (although not yet in force) on this makes no such stipulation about charges or fees which may be levied by the museums etc.
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
Another way around this is to hire someone, on Fiverr.com for example, to make a drawing, sketch, magic marker version, using the photo as inspiration.
I might be stepping out of line a bit here, but you certainly get a simialr image cheaper. The question is then how different or close the image must be to aviod infringement?
In the case of very old photos (world war 1, in my case) I can't see that there would be any problems. Especially if elements are taken from different photos then combined into one image.
I might be stepping out of line a bit here, but you certainly get a simialr image cheaper. The question is then how different or close the image must be to aviod infringement?
In the case of very old photos (world war 1, in my case) I can't see that there would be any problems. Especially if elements are taken from different photos then combined into one image.