Can I colourise a Victorian photograph & exhibit it?

'Is it legal', 'can I do this' type questions and discussions.
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Can I colourise a Victorian photograph & exhibit it?

Post by SCMac »

I’m a graphic designer & photo colourist. I wondered what possible copyright issues there might be if I were to take a collection of early Victorian portrait photographs (taken in the 1840s by D.O. Hill & Robert Adamson) and professionally colourise them for public viewing/exhibition.

With regards to copyright of these original works, they are now in the Public Domain (I think) but the National Portrait Gallery seems to be the body who owns the copyright for the collection and grants licences for personal, public or commercial use of the original images.

The images are well-known and of some cultural interest, but colourising the images has not been done before. If such an exhibition were marketed, I think this has the potential to gain some level of public interest.

In theory, the exhibition would still be fairly small and free to get in to. The colourised photos would provide a fascinating glimpse into the past, heightening the realism of the original photographs (some of the earliest photographs taken), making them come to life.

Obviously, digitally colourising the photographs would require quite a bit of historical research, artistic skill and imagination on my part. These would be very professionally and skillfully done. If indeed I were to exhibit them, I would be more than happy to display the original works themselves with clear copyright information alongside the derivatives – after all, that is the point - to heighten interest in the original images.

The plan would be to exhibit these images in the very same hall where an original, and the most famous, of D.O Hill’s work of hangs - the colourised derivatives would only draw more attention to that original work (I work for the organisation who owns this original work and they would be happy to exhibit it).

Obviously, I would not be getting paid by anyone for my work – I am willing to do this out of sheer personal interest in the subject matter. However, it is likely that more business would likely come to me through this, so I suppose it could be argued that I am doing this for professional gain too – but that isn’t my primary aim.

I really feel that this is a great idea, but I have no idea about the copyright issues that would be involved - does one need to obtain copyright license in order to make a derivative? Is this likely to be very expensive? Is this worth pursuing? Or is there another route altogether I should take?

Thanks in advance for any advice!
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Post by AndyJ »

Hi SCMac,
This is a subject which annoys me greatly. Although institutions like the National Portrait Gallery dress this up as copyright protection, it is really just them operating a monopoly because they can control access to works of this sort.

Just to be clear about this, Robert Adamson died in 1848 and at the time of his death there was no copyright for photographs. David Hill died in 1870 which was 8 years after the Fine Arts Copyright Act 1862 first gave copyright protection to photographs. Because the Act applied retrospectively, Adamson's works would have become protected, but any such protection ended in 1855, because under that Act, copyright only lasted for 7 years following the artist's death. And so by 1878, copyright for both photographers would have ended and their works entered the public domain.

(Edinburgh Ale by David Octavius Hill, and Robert Adamson, circa 1843-48. Copyright in the digital image claimed by the National Portrait Gallery)

The copyright the NPG is claiming is in the digital reproduction of these photographs. This claim is highly debatable because any such reproduction is likely to have been done by mechanically scanning either the print or the negative, and as this requires only minimal human intervention, it is highly unlikely that such scans would meet the originality test under UK law, which would allow a new copyright to exist in the digital image. If you read the copyright section of the NPG website, they claim that they have a duty to control how a work they own is reproduced in order to ensure such reproduction is faithful to the artist. This appears to be a reference to the moral right of an author or artist for his work not to be treated in a derogatory manner, but since this moral right was not introduced into UK law until the 1988 Copyright Designs and Patents Act (section 80), and only lasts for the term of any copyright, it cannot legally apply to the works of Hill or Adamson. But because the NPG can control access to the works, they can impose whatever conditions they choose when it comes to granting permission to re-photograph or scan these works. This is an entirely separate issue to copyright. To refer to this under the heading of copyright is disingenuous.

Both in legal terms (see section 29 CDPA) and the NPG's own polices (see the link to their copyright page above) you may freely download the pictures you want to use, and colourise them. This would fall under the heading of research and private study. The publication bit is more problematic. In theory, publishing your derivative works in a non-commercial manner, say on a website, would also be both legal and in accordance with the NPG's own policies, but if such publication could in any way be seen as commercial (for instance if there were also paid-for advertising on the same website) or you wished to sell prints of your versions, then the section 29 exemption would no longer apply.

Obviously you could just go ahead and publish, and see what response you got from the NPG. Of course I don't suggest you do this, but it would be very interesting to see the result if they decided to take you to court, because morally there can be little doubt that their policies in this area are not at all in the spirit of copyright law.

Alternatively you could contact the Intellectual Property Officer at the NPG and argue the case for you to have free access to the original images (possibly with the payment of a small administration or facilitation fee) so that you could obtain your own digital images which you could then work on and exploit as you wish. I suspect that just accepting their commercial licensing rates would be prohibitively expensive for such a speculative venture.

However if these photographs were ever published prior to them coming into the NPG's possession (there are some indications this was in 1973) then I would be fairly sure that you could freely use the images from the other source.
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
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Post by Nick Cooper »

It's rather ironic that the NPG's copyright page includes the claim that, "The National Portrait Gallery champions clear and balanced information about copyright and licensing."

We have, of course, been here before with photographic libraries obfuscating copyright and licensing issues as regards images that are in fact now public domain, in some cases for decades.
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