Help on reproducing vintage labels for cans as props

[JD47]

Hi I am artist/prop maker and have been recreating old vintage can labels on cans for props to be used for fun as display and selling them. I was given some legal advice at a free legal workshop but I now worried it is not correct.

The labels are American and also British and date back from 1890-1970's . I have been selling them but say they are replicas and meant as props . Museums have purchased some and restaurants like them for cutlery holders and general public to display in their homes. I do not sell to anyone that is going to commercially sell them on.

I was told as artwork is so old and in public domain name that I am fine to do this as long as they are props and not sold to shops that will sell them on. But how do I know if they were in the public domain? what actually does that mean? and also some of the brands are like Heinz or Frys for example. I was told to put a notice on webpage that Registered trademarks are the property of their respective owners . And that these cans are designed for fun not for commercial resale.

Please help I am concerned as someone told me info I was told was incorrect. Any advice would be so much appreciated. Concerned that this part of my business maybe of breaking rules without me realising.

[AndyJ]

Hi JD47,

I think it is fair to say that the 'legal' advice you have been given is not the whole story. Although you say the labels are mixture of American and British in origin, I'm going to concentrate on British law because, for copyright at least, it's much simpler to explain. If you need to check up on the copyright status of US labels, a good place to start is here. However as far as trade marks are concerned, you are probably best to stick to UK law irrespective of where your labels originated, since the application of trade mark law is very terrotorial, so for instance an American trade mark which hasn't been registered in the UK can't be infringed here (and vice versa).

So from what I have said already it will be clear that there are two separate intellectual property rights involved here.

Trade Mark. Almost certainly the can labels you have copied will contain various trade marks, some of which may currently be registered and some of which will have lapsed. Let's take the two you mentioned. Heinz is obviously still in business and using a modern version of their famous trade mark among several others.

And as long as they continue to periodically re-register their marks, and produce goods displaying them, the marks can remain valid indefinitely. Only if a mark fails to be re-registered or is not used in the course of trade for a continuous period of five years, does its validity cease. Fry's on the other hand has ceased to trade under that name, as the company was absorbed into the Cadbury's division of Kraft Foods some years ago. As far as I can tell from the rather temperamental IPO trade mark search tool, none of the Fry's trade marks other than the original company name J.S. Fry and Sons appears to be registered, and there are no historic entries for extinct brands such as their Chocolate Cream bar which I find surprising.
Other brands will no doubt fall into the same two categories. Your best bet with all trade marked items is to include a disclaimer and make it clear that these are replicas. There isn't too much of a problem with trade mark infringement in your case because most of these sorts of trade mark will be registered for specific classes of goods (in the case of Heinz and Fry's that is mainly foodstuffs) and you of course are not trading in the same goods so there is very little chance of confusion arising.

Copyright. Copyright will exist in any artwork to be found on the original cans, including things like company logos, and possibly text which can be said to have a literary character. And copyright provides for a very long period of protection, as it is based on the lifetime of the artist plus (currently) 70 years after his/her death. Of course in virtually all cases where labels are concerned, the name of the artist will be next to impossible to discover and so it will generally be necessary to treat such works as anonymous and to apply section 12(3) of the Copyright Designs and Patents Act,

(2) Copyright expires at the end of the period of 70 years from the end of the calendar year in which the author dies, subject as follows.

(3) If the work is of unknown authorship, copyright expires—

• (a)at the end of the period of 70 years from the end of the calendar year in which the work was made, or
  
  (b)if during that period the work is made available to the public, at the end of the period of 70 years from the end of the calendar year in which it is first so made available,

subject as follows.

(4) Subsection (2) applies if the identity of the author becomes known before the end of the period specified in paragraph (a) or (b) of subsection (3)

to make some assumptions based on when the particular label first appeared in the shops. As you can appreciate, more modern labels (eg from the late 1940s onwards) are thus unlikely to be out of copyright because the 70 year period has not yet elapsed. In a case where the copyright appears to be still in existence, it will be owned by the company or its successors, and so you would need to get permission from them to make copies of their labels. I think that provided you stress the use of your reproductions as props, getting permission shouldn't be either difficult or costly, as after all you are proposing a form of product-placement advertising which reinforces a brand's heritage - something that most companies are keen to do.
Regrettably, although the law provides a special dispensation for replica firearms as theatrical props, it doesn’t do the same where copyright is concerned!