Re-drawing of 100-year-old plans question

[Lumberjack]

I have often wondered about the copyright position in the UK when re-drawing old plans. By old, I mean usually in excess of 100 years. The image attached shows two plans of a ship. The top one was found in a book published in the USA in 1919. Apparently, anything produced before 1923 in the United States is now out of copyright, so, in this case, there is no problem. The bottom coloured plan of the same ship was re-drawn by myself. It was not traced or anything. I started with a blank sheet of paper and drew the plan myself, and it took about eight hours, and really the style is totally different from the top one. If the original was published in the UK, would it still be legal to re-draw plans in my own style?
NOTE: I was not able to put the image on because I am a new member, but I think the questions are still self-explanatory.

This sort of thing happens quite a lot in UK-published books. The one or two writers that I have asked have just said that they do it, and no-one has said anything about it!

Same with photographic images. British museums always make a big thing about their images not being copied without payment of exorbitant fees, but I have seen identical images in other photo agencies claiming the same thing. They cannot all hold copyright to the same identical images, and I suspect that the original copyright holders are now unknown anyway! I was given a huge collection of photographic images many years ago by a 90-year-old man, dated between the 1860s and about 1910. Many of them only have chemists marks on the back, suggesting that he took a lot of them himself. Some have copyright stamps on the back crediting them to a photo agency that ceased to exist many years ago!

I never seem to be able to ge a straight answer to these questions. Some time ago, I challenged a museum saying that I did not believe they did hold copyright of certain images. They did not deny this, but changed their stance to "Well, we have the originals and do not permit you to copy them!" Which is rather different than owning the copyright!.

In more recent plans and images, I have no problem. In all cases where I have asked permission for use, it has been granted. But with 100-year-old or more material, it is often impossible to know who to ask.
I am a 71-year-old self-publishing writer! (hobby).

[AndyJ]

Hello lumberjack,

Welcome to the forum.

I have often wondered about the copyright position in the UK when re-drawing old plans. By old, I mean usually in excess of 100 years. The image attached shows two plans of a ship. The top one was found in a book published in the USA in 1919. Apparently, anything produced before 1923 in the United States is now out of copyright, so, in this case, there is no problem. If the original was published in the UK, would it still be legal to re-draw plans in my own style?

While you are right about the fact that anything produced in the USA before 1923 can usually be considered out of copyright, that is not universally the case. As for the UK, we have had the term of copyright here determined by the lifetime of the author for around one and a half centuries, so anything first published here would need to be considered on that basis. Where the author of a work died before 1945, you can reasonably sure that any published work by them is now in the public domain. Unpublished works, and works first published after the author's death fall into a different category, but as you appear to be just referring to published sources, I don't need to go into that here.

Same with photographic images. British museums always make a big thing about their images not being copied without payment of exorbitant fees, but I have seen identical images in other photo agencies claiming the same thing. They cannot all hold copyright to the same identical images, and I suspect that the original copyright holders are now unknown anyway!

Where you have found multiple versions of the same photograph, it does not necessarily mean that no-one now has a legitimate claim to the copyright. Firstly it is possible that some or all of the sources have published a photograph under licence, and so stating that the picture is subject to copyright would not be an error. However if each of the sources claims the copyright belongs to them, again this may not be evidence of deception, merely the standard practice of the photo agencies involved, so it still doesn't mean that copyright no longer exists. It may indicate however that the owner of the copyright is either unwilling or unable to enforce their right. And of course an author has the right to assign his copyright serially, to different agencies, in which case this could result in Agency A holding the rights for a period of years, before the rights were transfered to Agency B - both would be correct in claiming copyright ownership for their respective periods.

I was given a huge collection of photographic images many years ago by a 90-year-old man, dated between the 1860s and about 1910. Many of them only have chemists marks on the back, suggesting that he took a lot of them himself. Some have copyright stamps on the back crediting them to a photo agency that ceased to exist many years ago!

As already mentioned there are 3 key questions here:

• a. When did this man die, because if it was less than 70 years ago, and he was the author, the images are still in copyright.
  b. Is it reasonably certain he was the author of the images?
  c. Have the images been published? If not, then they may be in copyright until 2039. irrespective of when the author died.

The photo agency stamps should give a clue to the possible dates of the photographs, but that information alone cannot be taken as evidence the images were published.

I never seem to be able to get a straight answer to these questions. Some time ago, I challenged a museum saying that I did not believe they did hold copyright of certain images. They did not deny this, but changed their stance to "Well, we have the originals and do not permit you to copy them!" Which is rather different than owning the copyright!

You are certainly correct about the control of access issue. There is a lot of pressure on institutions to relax their monopoly stance over their holdings, which in general they hold in trust for society at large.

But with 100-year-old or more material, it is often impossible to know who to ask. I am a 71-year-old self-publishing writer! (hobby)

You don't mention whether you self-publish for profit (the 'hobby' bit suggests not), but one way of resolving the problem of not knowing who to ask for permission, is to use the orphan works licensing scheme administered by the UK Intellectual Property Office. It's relatively cheap to obtain a licence to use a work where the author cannot be found, and by using it you are indemnified against a claim of infringement, should the owner come forward later. You can find links to guidance on how carry out a diiligent search for artistic works on the IPO site.

I hope this helps clarify things a bit. You will be glad to know I don't think it is necessary to go into the protection of registered designs, with their separate set of rules!

[Lumberjack]

Hello Andy,
Thanks for reply. The bulk of my photographs were taken between the mid 1860s and about 1910. The person who owned them was concerned that when he died, his family had declared they would be all disposed of. So he handed the collection to a newspaper editor in South Africa and told him to give them to someone who would appreciate them. This was in about 1972. One afternoon when my ship was docked at Durban, I was sitting in my cabin with the door open and working on a model ship. The newspaper editor was visiting an officer who was in the next cabin to me. He saw what I was doing and decided that I should have the photographs!
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How museums and photo agencies can claim copyright on a photograph taken in the 1870s and 1880s is beyond me! In most cases, they were probably taken by seamen with cheap cameras who just gave or sold them to photo agencies without any mention of copyright being transferred. I believe my benefactor took many of the photographs himself, because they have chemists markings on the back. I still have the copy of the article from the Durban newspaper telling the story of how I got the collection. Again, there was no mention of copyright, and I feel sure that I got them with no conditions attached!
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Having got tired of mainstream publishers rejecting my manuscripts on the grounds of "no-one is interested in boats these days!" I took to self-publishing. Initially, I pay for about 40 books printed, and as they sell, I get some more printed. Yes, I do it for a profit, but mainly because of my interest in ships (not "boats"). I good run will stretch to about 150 books sold. I will not get rich by it, because there is only a niche interest. My images are obviously of great age, and I doubt very much whether anyone could actually prove who took them in the first place.
I will look into the "Orphan publications" and thank you for the link.
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But what about me drawing my own versions of ship plans based on the originals? Again, I am talking about plans in excess of 100 years old. I have no problem with newer plans because I have asked, and received permssion to copy the originals!
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In any case, what is the worst that could happen if someone moaned about me publishing a 100-year-old photograph? Presumbly, they would have to prove that they did indeed hold the copyright, and as far as I can see, that is in most cases impossible.
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In 1982, (Falklands) a fair number of my own photographs appeared in the national press without either permission or even ackowledgement, but I didn't even see fit to mention it. Even considered it a bit of an honour!

[Lumberjack]

A further point that puzzles me is that the State Library of Victoria (Australia) has a large number of sailing ship images on their website with the clear statement that there is "No known copyright" and "permission is not required for any purpose, including publication," as long as the images are credited to them! However, a number of British organisations claim copyright on a number of the same images.
So I end up not knowing what to think!
Are any moves being made to sort out this mess on an international scale?

[AndyJ]

The bulk of my photographs were taken between the mid 1860s and about 1910. The person who owned them was concerned that when he died, his family had declared they would be all disposed of. So he handed the collection to a newspaper editor in South Africa and told him to give them to someone who would appreciate them. This was in about 1972. One afternoon when my ship was docked at Durban, I was sitting in my cabin with the door open and working on a model ship. The newspaper editor was visiting an officer who was in the next cabin to me. He saw what I was doing and decided that I should have the photographs!

The purely legal answer concerning this set of photographs is very complicated. It clearly isn't possible to say with any certainty where the photographs were taken, but as the previous owner made the donation in South Africa, that would be the logical place to start. Prior to gaining independence, South African copyright law was based on the UK's 1911 Copyright Act, which granted photographs, irrespective of whether they had been published or not, a term of 50 years from the end of the year in which the image was made. The newly independent state of South Africa brought in its own Copyright Act in 1965, but it did not change the special term of protection for photographs, which remained at 50 years from when the image was made. Indeed, this situation remained largely the same following the introduction of the 1978 South African Copyright Act (the current law), except that under that Act, the 50 year period does not start until the image is lawfully published. That however does not affect any of your photographs which clearly pre-date 1978.
I don't think there is any reason to assume UK copyright law will apply to the collection, even if it is now located in the UK. That's my interpretation of the legal situation. However, given the circumstances by which you came by these images, namely:

In most cases, they were probably taken by seamen with cheap cameras who just gave or sold them to photo agencies without any mention of copyright being transferred. I believe my benefactor took many of the photographs himself, because they have chemists markings on the back. I still have the copy of the article from the Durban newspaper telling the story of how I got the collection. Again, there was no mention of copyright, and I feel sure that I got them with no conditions attached!

I think there is a strongly arguable case for supposing that the original owner was gifting the copyright along with the pictures. If it was a matter of UK law, then such an argument would be supported by the wording of section 38 of the 1956 Copyright Act, even though this was not an actual bequest under a will. In any case I suspect that, given his family's reported attitude, you are unlikely to face any challenge from them.

But what about me drawing my own versions of ship plans based on the originals?

I deliberately sidestepped this issue when answering your original posting because, to my mind, what you have described would amount to copying, assuming the original is in copyright. The law says that it is infringement if the whole or a substantial part of the original is copied. Copying includes:

(2) Copying in relation to a literary, dramatic, musical or artistic work means reproducing the work in any material form. This includes storing the work in any medium by electronic means.

source: Copyright Designs and Patents Act 1988 section 17(2)

In any case, what is the worst that could happen if someone moaned about me publishing a 100-year-old photograph? Presumably, they would have to prove that they did indeed hold the copyright, and as far as I can see, that is in most cases impossible.

As I have indicated, I think there is only a very slight chance that any of the images you have are in copyright. However if you do go through with the orphan works licensing procedure, you would not be liable for infringement even if someone does come along and can prove that they hold a bona fide copyright.

In 1982, (Falklands) a fair number of my own photographs appeared in the national press without either permission or even acknowledgement, but I didn't even see fit to mention it. Even considered it a bit of an honour!

It is of course your right not to enforce your copyright. However, if you had chosen to challenge the newspapers, you would have had a very good chance of success, because although there is a general fair dealing exception which allows some copyright works to be copied (with sufficient acknowledgement of the author) for the purposes of reporting currents events, that does not apply, today, to photographs, and back in 1982, it did not apply to any artistic work (see section 6(3) of the 1956 Copyright Act).

A further point that puzzles me is that the State Library of Victoria (Australia) has a large number of sailing ship images on their website with the clear statement that there is "No known copyright" and "permission is not required for any purpose, including publication," as long as the images are credited to them! However, a number of British organisations claim copyright on a number of the same images.
So I end up not knowing what to think!

The problem here is that it is not an offence (under copyright law) for someone to claim that they own copyright in something when they know that it is untrue. The only way such claims can be properly tested is in court, and that's very expensive.

Are any moves being made to sort out this mess on an international scale?

Not that I am aware of. While everyone acknowledges it's mess there is no political or commercial pressure to resolve it even at a national level, let alone an international level. There have been small gestures such as a recent statement in a Copyright Notice issued by the IPO (see page 3 of this pdf). But really it seems to be left to bodies like Wikimedia to contest the more blatant examples of this practice.

[Lumberjack]

Thanks for the further comprehensive answer. To further complicate matters more, the person who indirectly gave me the photographs was British, he had emigrated to South Africa! So many authors use old photographs that are obviously from the same collection because a lot of them had handwriting on the front that is obviously from the same hand. This is quite easy to remove now, with a computer, but before it was, it was pretty obvious!.
As for the plans, re-drawing is quite extensive in the maritime book field, and seems to be accepted and always goes unchallenged, I just wondered what the official stance is! In fact I once asked the National Maritime Museum about it (re-drawing) and they said that was OK because of the impossiblity of proving in court whether the alleged infringer was re-drawing a plan from them, or from another source!
I suppose the worst case I came across concerned a photograph I took over 30 years ago, of which I still have the negative. It recently appeared on the front cover of a book with several more of my images inside! To add insult to injury, the writer even apologised for the poor quality of the images (which were due to the book printers, and not my prints!). I do remember him purchasing prints from me at 25p each in 1982! Even so, the only action I took was to write a similar book about the same subject using more than a hundred of miy own high-resolution prints, also putting the main offending image on the front cover!

Some years ago, someone asked me if I had a photograph of a certain ship that was still sailing until the 1960s. I gave them a postcard of it. Next thing, they put it in a publication and credited it to me which I found very annoying, and for a while wondered if I would be had up for it. Fortunately nothing hapenned. This has happenned to me twice now, so if I give anyone else anything like that, I specify in writing that it is not my copyright and if they want to publish it, they should seek the copyright owners permission!

I feel that you have answered my question more than adequately, and I thank you very much. The whole question is so complicated that it is extremely unlikely than anythying would be said about using images originating between 100 and 150 years ago.