Old Postcards, public domain and copyright

[Hallaton1]

Hello

I have read several posts on here all of which are very useful. I am probably being rather dim but I hope someone on here can clarify things.

I want to include some reproductions of postcards in a book I am putting together for the purposes of local history. I have two basic scenarios.

1 Postcards issued pre 1925 which show no indication to either publisher or photographer. Am I correct in understanding from what I have read on here that these are essentially out of copyright as there is no realistic chance of being able to track down the photographer or the original publisher? I own the actual postcards I want to copy.

2 Postcards of the same period which were sold for commercial gain by the photographer/publisher. Here I am not clear at all. I understand that copyright exists for 70 years after the author/photographer's death as long as it was still in copyright when the 50 years was extended to 70. However, I have also read something about published images before 1923(?). There seems to be some suggestion that these are now considered to be in the public domain and thus free of copyright. Does the commercial sale of postcards equal publication and thus does this public domain rule apply? Personally I would say that commercial sale of postcards = publication but I really don't know.

3 How does copyright apply to postcards published overseas. I am especially interested in postcards published both in Greece in WWI (by French companies) and also in India/Pakistan for the same period. Not sure where to go with these.

Apologies for the long question. Any guidance gratefully received.
Thanks
max

[AndyJ]

Hi Hallaton,
I am glad you have already seen some of the earlier postings on this subject as it will save me having to repeat quite a lot of complicated details.
The first thing to appreciate is that with most postcards, the image on them is taken from a photograph, and under the 1911 Copyright Act, photographs were treated differently to other types of copyright work. That is to say photographs were protected for 50 years from when they were taken, whereas the term for other works was for the lifetime of the author plus 50 years. On that basis a photographic postcard from 1925 or earlier should now be out of copyright.
Clearly where the postcard bears an image other than a photograph, working out the current copyright status is more complicated, but if there are no details of the photographer or publisher, then the law treats such works as anonymous, as follows:

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.

Since you didn't indicate that your postcards were of the non-photographic variety, that probably doesn't apply here.

On the subject of publication, any offering to the public, for sale or for free (say, by lending library etc) constitutes publication.
However if a person drew a funny cartoon on a blank postcard and posted it to a friend via the public mail service, that would not amount to publication.
The bit about 1923 only applies in the USA. Their 1976 Copyright Act had to achieve a number of changes, including removing copyright jurisdiction from the individual states and bringing it totally under federal control, plus it marked the changeover from a complicated registration process with fixed terms, to the now widely used system based on the author's lifetime plus a certain amount of years post mortem. To do this there had to be a number of transitional arrangements for existing works. Since the old registration system allowed for no more than two consecutive 28 year periods (ie a total of 56 years), the date of 1 January 1923 was taken as the cut off, because anything published before that point, whether registered correctly or not, would be out of copyright on 1 January 1978 when the Copyright Act came into force. The result of this for the UK is that if the postcard was first published in the USA, UK law would not provide a longer term of protection than was available in the USA.

As for postcards published elsewhere in the world, the important thing to check is whether the country of origin is a member of the Berne Convention or the Universal Convention on Copyright (virtually all major countries are), since this would determine whether or not the UK courts had to recognise any copyright whatsoever. And as mentioned with regard to the USA, the UK term of protection for such works would be the shorter of the two between the UK term and the term available in the country of origin.

Where the country of origin of the work is not an EEA state and the author of the work is not a national of an EEA state, the duration of copyright is that to which the work is entitled in the country of origin, provided that does not exceed the period which would apply [to works originating in the UK] (source: CDPA section 12 (6))

The reference to the European Economic Area (EEA) means that cards originating from France or Greece (both of which are in the EEA) are treated exactly as if they had been first published in the UK. I don't have enough knowledge of the details of the Indian and Pakistani copyright law to know exactly how each of them deal with older works, but since India (including what is now Pakistan) was part of the British Empire at the time, the 1911 UK Copyright Act applied there in a modified form until Independence in 1947, which is when Pakistan also became a separate state. Even after independence, Indian copyright law continued to closely mirror that of the UK, with their 1957 Act based largely on the UK's 1956 Act. Today both counties apply a shorter post mortem period: India has 60 years pm, and Pakistan has 50 years.

[Hallaton1]

Hi Andy

Thank you very much for your reply. That certainly clears up most things. I just want to double check a couple of things.
The majority of postcards I am using are photographic.
Some have no publisher.
Bur for eg. I have postcard commercially produced in 1915 by a local photographer who was well known in the area. He died in 1964 but stopped producing postcards in the 1930s. His name etc is listed on the back of the postcard. From reading the other threads I thought I would need to seek the copyright holder if any exist but because it is pre 1925 I don't need to do this??

Some postcards are held on websites I have approached the owners of these sites who have given me the ok to use the images. Where does the responsibility lie with these? In some cases I can't see the back of the cards.

Many thanks
max

[AndyJ]

Hi again hallaton,
As far as the 1915 card by the known photographer is concerned, I think you will be all right in assuming the copyright in the photograph ended in in 1955 (or earlier), and so there is no need to consider seeking permission.
And I would be very wary of assurances from users of other images of postcards*. Unless they are the owners of the copyright or are prepared to indemnify you against liability by means of a written affidavit, you would have no defence should the real owner of the copyright claim infringement. That said if the postcards are from the same era as the ones you have mentioned, then in all probability they too will be out of copyright if they feature photographs.


* the situation rather reminds me of the old joke: A man approaches another who is standing with a dog. First man asks the second man "Does your dog bite?" "No", says the second man. First man bends down to stroke the dog where upon the dog bites him. First man, angrily: "I thought you said your dog didn't bite!". Second man: "That's not my dog".

[b-postcard9]

Wanted to clarify the use of vintage photo postcards from France. I have several from the 1910-1920s timeframe, and wanted to be clear that the copyright has expired for any postcard dated 1924 or earlier, is this correct? There are NO copyright notices or "Reproduction Interdite" notices on the cards.

Also, I have one photo postcard from 1946-1950 from France. I presume that if it states "Reproduction Interdite" - that the copyright is still in effect. Yes?

My usage is NOT to make money. It is for a public education document about World War II that will be an online PDF document. It will be free of cost.

My sincere thanks for your assistance. Today's date is March 18, 2024 in America.

[AndyJ]

Hi b-postcard9 and welcome to the forum.

From your reference to 1924 and the date in America, I assume that you live there and are intending to produce these pdfs in the USA. This makes the answer to both of your questions fairly straightforward . There's a handy reference to help decide these issues, published by the Cornell University School of Law here.

I am assuming that all the postcards were first published in France. For any which were pubished before 1 Jan 1929 they are now in the public domain (ie free from copyright) in the USA.

However with the one which was first published in the late 1940s, we first need to consider if the copyright was ever registered in the USA. I think we can reasonably assume this wasn't the case as these were low value items which wouldn't have been intended for sale in the USA. On that basis the copyright in the USA lasts for 95 years from the date of publication and therefore only cards published before 1 Jan 1929 will be free from copyright. The copyright notice 'reproduction interdite' doesn't make any difference in this instance, since the other formality required by old US law was the registration process.

However under French law in both cases the copyright term will be the standard European term of 70 years after the death of the photographer. Even if we take into account the fact that in France prior to 1995 the copyright term was 50 years after the death of the author, this wouldn't significantly alter the situation regarding the card from the 1940s, since the photographer would have needed to have died before 1945 for his work not to have been caught by the 1995 extension of the post mortem period by 20 years.

Since your intended use of the card from the 1940s is purely educational you may be able to use it under the Fair Use doctrine, as your purpose in substantially different from the original purpose of the card, and there would be no economic detriment to the copyright owner of the original postcard, which obviously isn't currently on sale other than possibly in the second hand market, something which brings no benefit to the copyright owner.

[IPMatters]

A very interesting article with sound advice. Thanks for that.

[b-postcard9]

Andy:
Wanted to thank you for the detailed explanation. I could not find the information you explained anywhere else. My appreciation for your response!

[DPMOBE]

Andy

New member..not sure I'm doing this properly ..it's a new (supplementary) question rather than a 'reply'.

I have studied this one carefully, but your last dialogue with b-postcard9 threw me just as I thought I had the answer I needed - because he appears to be publishing in the UK. Like him, I am also in the USA, but the book I am writing is to be published in the Britain.

Basics: A philatelic history, in which I wish to include some dozen French postcards..all photographic...ranging between 1898 and 1905. My UK sponsors say that for France (and UK) the copyright remains for 70 years after the photographer's death .But you seem to indicate in your reply to Hallaton 1 back in 2014 that the move from 50 years to 70 does not apply to photographs (and therefore photographic postcards)..is that correct?

If not we would need to be sure that the photographer died before 1955. So if he took a (say)1905 photo at age 25 he could still have been around in 1955..so that photo would still be copyright today? ...

Help please!

[AndyJ]

Hi and welcome to the forum,

In the UK a photograph made before 1 Jan 1945 would only be subject to the simple 50 years of protection. This was because photographs, being merely faithful reproductions of the scene in front of the lens, were not seen as worthy of the same full copyright which applied to works of art or literature which stemmed from the creative mind and skill of the author. The reason that 1 January 1945 is the cut off is because when the EU Copyright Term Directive came into force, it applied to all works which were in copyright on 1 Jul 1995. Under the old UK rules, a work created on 1 Jan 1945 would have remained in copyright until 31 December 1995 so it would have been caught by the change.

Until the Act No. 57-298 of March 11, 1957 in France, copyright (more precisely the droit d'auteur) was only loosely defined as applying any œuvre de l'esprit (work of the mind). The term in France throughout the first 86 years of the twentierth century was the author's lifetime plus 50 years. The Act of 1986 increased this to 70 years post mortem. It was as consequence of France, Germany and Spain (in particular) already having a term of the lifetime plus 70 years that the EU adopted this as the European Union standard in 1995.

Where the confusion arises is the wording of Article 10(2) of the EU Copyright Term Directive. This says

2. The terms of protection provided for in this Directive shall apply to all works and subject matter which are protected in at least one Member State, on the date referred to in Article 13 (1) [1 July 1995], pursuant to national provisions on copyright or related rights or which meet the criteria for protection under Directive 92/100/EEC.

Some authorities interpret this to mean that where a work whose country of origin (eg the UK) only provides the shorter 50 post mortem period, the work automatically benefits from the extra 20 years under, for example, French law, and that is what counts when looking at the status of the copyright on 1 Jul 1995. In other words, it was necessary to assume that the longer term applied even if the work was never published or made available in the country with the longer term. However this is to misread (in my opinion) the purpose of Article 10(2), which is merely there to say that the starting point for the application of the Directive is for works which originated in an EU member state. If the first interpretation was correct then the words 'at least one' would be superfluous since that interpretation assumes copyright would automatically apply to all works irrespective of their country of origin, provided that both countries were members of the Berne Convention. Since around 190 countries are signatories to the Berne Convention, that means virually all the major countries, and all first world countries, would fall into that category.

On a completely separate point, if the photographer is unknown or anonymous, then under both UK and French law, the term of copyright is only 70 years from the date of publication of the work, so that avoids all the complcations of how to interpret Article 10(2).

[DPMOBE]

Many thanks indeed, Andy....that is a very comprehensive reply....I hope I have understood it correctly. If there is no evidence on the card of a publisher (or indeed photographer), I can go ahead and copy the card into my book...if there IS such information then I need (somehow) to establish a link to the publishers and ask them if its OK . Is that correct?

[AndyJ]

yes, that's the situation.

[DPMOBE]

Thanks again, Andy...the hunt starts here for two of the ones I really need!