Edith Cavell Postcards Copyright

[CavellTrust]

Cavell Nurses' Trust is a charity which provides welfare support to nurses, midwives and healthcare assistants. We were born from the legacy of Edith Cavell who was a British nurse who worked in Belgium during WW1 and was infamously executed by the occupying forces in 1915.

Her execution prompted a global public outcry which resulted in many images (both photographs and drawings) being created at the time, many of which have been reproduced in numerous publications in the 100 years since.

We would like to explore the feasibility of using some of these images to create postcards which we could sell to raise funds for the charity. We have shied away from doing so in the past due to a lack of knowledge about copyright law and a fear of infringement. Are we right to shy away or should it be reasonably straightforward for us to crack on?

[AndyJ]

Hi,
I think that a good proportion of these images could be out of copyright now, due to their authors having died before 1944. Term for copyright protection is the lifetime of the author plus 70 years from the end of the year in which they died, hence the work of anyone who died in 1943 or earlier would no longer be protected. But it is also likely that fair number of authors could have lived on into the 1970s or 1980s, and so their work would still be protected. This rule of thumb can be applied whether the artists were British or from other parts of the world, with the exception of those from the USA. As far as the USA is concerned, anything which was created there prior to 1923 is now in the public domain and you could freely use such works.
And I suspect you will very few details about the artists or photographers concerned. Possibly if images appeared in newspapers or magazines, there may be a credit for the artist, but even then, tracing them to find a date of death and any heirs could prove to be a monumental (and expensive) task.
Fortunately the law is about to change (on 29 October 2014) to allow works like this (known as orphans because their authors are unknown or untraceable following a diligent search) to be licensed for you to use in the way you wish. I haven't seen published details yet about exactly how the scheme will operate but if you contact the Intellectual Property Office they should be able to send you details when they become available.

[CavellTrust]

Andy,

Thanks for your prompt reply, which is very useful. As you suggest, it would be enormously difficult for us to identify the provenance of most of the items we would seek to use. A simple Google search reveals dozens if not hundreds of images, some of which are clearly older propaganda works or cartoons from around 1915.

Out of interest, how would we demonstrate that we have conducted a 'diligent search' for originators of works - and to whom would we need to demonstrate it?

[AndyJ]

The criteria for a diligent search have not been published yet* for the UK orphan works licensing system and it will be the IPO, to whose website I linked in the previous post, who will need to be satisfied.
You may get some idea of what will be required from what the EU have stipulated as the minimum requirements for a similar orphan works scheme which applies to major museums, archives and libraries (see Part 2 of the Schedule attached to this Statutory Instrument).
*Update: see next message

[AndyJ]

Follow up note.
In an earlier reply in this thread, I said that no details were yet available on how the Orphan Works licensing scheme would operate or what might constitue a diligent search.
The IPO have now published guidance on conducting diligent searches for literary works, film and sound recordings, and still visual art. They can be downloaded in pdf format from here.
It is not clear whether similar guidance will be forthcoming for musical and dramatic works.