And yet another query about photographs

[ronS]

I have read somewhere that 1945 is a critical cut-off date for photographs which seems to conflict with what I have read here, which says that June 1957 is the critical date.

This other source says:

In the case of photographs taken between 1945 and 1996:

Copyright exists for at least as long as post 1 January 1996. For a photograph taken on or after 1 June 1957 but before 1 August 1989 attract a term of protection of 50 years from the end of the calendar year in which the photograph was published, although any photographs still unpublished on 1 August 1989 are protected only until the end of 2039. These terms will continue to apply if they are longer than the terms worked out on the same basis as for photographs taken on or after 1 January 1996
For a photograph taken on of after 1 August 1989 but before 1 January 1996 and the author or all the authors are unknown, the copyright term is the longer of either 50 years from the end of the calendar year in which the photograph is first made available to the public or the term applying to photographs taken on or after 1 January 1996.

In the case of photographs taken before 1 January 1945:

For such photographs, copyright would have expired on 31 December 1994 or earlier. However, if such a photograph were protected on 1 July 1995 in another European Economic Area (EEA) state under legislation relating to copyright or related rights, copyright would have been revived from 1 January 1996 to the end of the term applying to photographs taken on or after 1 January 1996. In deciding whether a photograph was protected in another EEA state, it is, of course, the law of that state which must be interpreted and the criteria used to decide whether a photograph should receive any protection at all would need to be considered very carefully.
The state where the longest copyright protection may have existed on 1 July 1995 is Germany, which generally had a term of life plus 70 years, but it is likely that not all photographs which qualified for copyright protection in the UK would have been protected in Germany. Copyright law in a number of other EEA states could also have given a longer term of protection for a photograph than in the UK.

Where copyright in a photograph was revived on 1 January 1996, there are transitional provisions and savings for those who were exploiting or want to exploit the photograph.

I also understand that, just to make things even more difficult, the Germans used to differentiate between photos and photo works, the latter taken spontaneously, whereas, presumably, the former were 'arranged' or planned - such as studio shots.

Help, I'm thoroughly confused.

[AndyJ]

Hi ronS,

What your other source says about the revival of copyright post 1 January 1996 (when the Duration of Copyright and Rights in Performances Regulations 1995 came into effect) is correct. This means that under normal circumstances photographs first published before 1 January 1945 were not caught by these new Regulations, because their 50 year term had elapsed. The special cases are those which were, between 1 July 1995 and 31 December 1995, still protected by copyright in another EEA state. This special provision is unlikely to apply to any photograph which was made and first published in the UK. For example, while the copyright term in Germany in 1995 (ie before the new EU Directive came into force) was already 70 years from the year of death of the photographer, that only applied to works by German nationals or works first published in Germany; the German law did not provide greater protection to other works than would have been available under the laws of the country of origin of the work.

I'm sorry if my reply to your previous question caused confusion. When I said that "photographs made before 1 June 1957 [...] are treated somewhat differently to most other forms of copyright work" the emphasis was supposed to be on the treatment of photographs for copyright purposes, rather than implying this was the cut-off date. My following reference to photographs made in the first half of the twentieth century was more a reflection of your reference to the photograph in question having been made between 1908 and 1934. Obviously in that specific case, the 1 January 1945 watershed was irrelevant.

Just for clarity, any published photograph made before 1 June 1957 is subject to the provisions of the 1911 Copyright Act, which granted a copyright term of 50 years from its making. The 1956 Copyright Act (at Schedule 7) continued the same provisions for works already in existence. The 1988 Copyright Designs and Patents Act (Schedule 1) also left extant the earlier provisions of the 1956 and 1911 Acts as far as existing published photographs were concerned. And, but for the Duration Regulations referred to above (which implemented an EU Directive aimed at harmonising copyright terms through the EU), all published photographs made up to 31 May 1957 would have entered the public domain before 1 January 2008. However as explained in the article you quoted, the EU Directive was made to operate retrospectively and extended the copyright term for works still in copyright as at 1 January 1996.

And finally, yes both Germany and France apply narrower standards to what constitutes a photograph for copyright purposes. In part, much the same argument explains why prior to the British 1956 Copyright Act, photographs were treated as second class works that did not rank along side other artistic works. The distinction arises because, as can be seen with the millions of camera phone pictures which are taken every day, many photographs are merely a mechanical recording of a scene in front of the lens, with negligible artistic or creative input from the person who presses the button. To recognise (as UK law does) that all such photographs should be given the same level of copyright protection as, say, a work by David LaChappelle or Gregory Crewdson, is seen by some as undermining the worthy concept of droit d'auteur, which views the creative process as an embodiment of the personality of the author or artist.

Afternote. By a nice bit of serendipity here is an article which explains why the German courts have recently changed their stance on a similar concept when applied to design: <a href="http://blog.ksnh.eu/en/2013/11/14/germa ... snh:law</a>

[ronS]

Thanks for another superb answer. This forum really is a boon and your answers in particular.

My reason for raising this particular question (as distinct from the previous one) is because photography started to boom in the 1950s and a lot of those photographs are now coming on the market as photographers and collectors of the period die off/go into care homes. The better-known photographers have probably already made arrangements for their collections to go to an archive, so that's ok, and there is unlikely to be an issue if heirs are doing a house clearance auction of a photographer's possessions - they probably don't realise that they have a potentially valuable asset and won't be bothered about copyright.

The problem really arises where enthusiasts have acquired collections of other peoples' photographs and these are now being sold off. In that case the photographers may be well aware of their copyright status and will want to enforce it where it still applies.

I am just glad that we never adopted the German system. How would one decide what type of work a photograph was. A photographer takes a picture of a less-spotted mouse eagle. Did he or she spend a month setting up a hide and sitting in it waiting for the elusive bird to turn up, or did they just walk round the corner and it's sitting on a fence post?

I heard that the USA has a similar two-fold approach to photographs. For example, if you photograph a painting in the US and manage to produce an exact replica of the painting then no copyright exists in your photograph since it is simply a reproduction of the painting. In the UK it would probably be accepted that to produce such a photograph takes skill and therefore copyright exists. It's a nightmare, isn't it.

Anyway, thanks again.

[AndyJ]

Hi ron,
I agree that much of this is messy. The case in the US to which you refer is called Bridgeman Art Library v Corel Corp and although it is only a District Court decision (well, a pair of decisions) and therefore not settled law, it has been influential in some subsequent decisions elsewhere in the USA.
The nearest equivalent to this in the UK is a case known as Antiquesportfolio.com v Rodney Fitch & Co, which came to a different conclusion. The key word in UK law is originality. This doesn't mean uniqueness, but rather that the work in question originates from a human mind and does not knowingly copy something which already exists. The courts look for evidence of skill and judgement on the part of the photographer in the decisions he or she makes in setting up the photograph.
I don't think any of this assists you in trying to find a reliable test for whether a work deserves copyright protection or not. As a rule of thumb under UK law a photograph would be presumed to be original until it was shown to be otherwise. An example of this approach can be seen in a controversial decision called the Red Bus case.