Can I reproduce a Punch Cartoon?

[earleto]

Hi

I am trying to publish a book and have included a punch cartoon which I purchased online. As part of the publishing deal I have to raise a certain amount of book pre-sales via crowd funding. One of my ideas is to include a reproduction of this Punch Cartoon along with a signed copy of the book. The cartoon itself is over 70 years old (1914) and the attribution states 'pictured by a Berlin artist'.Any idea if there are any issues with me reproducing this?

Thanks

Tony

[AndyJ]

Hi Tony,

If the identity of the artist was known (for example, a name was attached to the image) then you would need to ascertain his date of death to determine if the cartoon is now out of copyright. A named artist would have needed to have died before 1 January 1947 for the work to be out of copyright.

However as the attribution appears to refer to an anonymous person, you can use the provisions of section 12(3) of the Copyright Designs and Patents Act 1988, which says the following:

(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.

thus, something published in 1914 would now be out of copyright.

[earleto]

Thanks so much for your quick reply!

[Swan]

Hi,

I have a similar request, so I wasn't sure I should create a new topic (please let me know if I should have done so )

I would like to use an illustration from Punch Magazine on my institution's intranet (accessible only to our students).

The drawing itself is in the public domain, as the drawer died more than 70 years ago, however I am not sure the various scans and photographs you find online are, as they were probably made in the late 20th century, if not even later.

Am I legally obliged to get Punch magazine's (probably not free-of-charge) copyright permission, or from whoever took a picture/scan or whichever publisher published the drawing in an anthology or other?

Thanks in advance for your help.
Kind regards,

[Nick Cooper]

This is an aspect we have touched on before, as many sites claim copyright on their own scans of public domain material, and this is particulary true of online (typically subscription-based) archives.

If you know the exact issue the illustration appeared in, it may be less hassle and more cost effective to source an original copy and scan it yourself.

[AndyJ]

And just to add to Nick's advice, Wikipedia indicates that much of Punch's archives were donated to the British Library, so quite possibly your illustration will be among the items they hold. You can therefore go to the BL and (subject to a couple of formalities such as registering for a Reader's Card) see and photograph the original yourself.
As for the many scans and prints available online, their exact orgin is somewhat confusing. They may well have originated either from Punch Ltd, a company owned by among others, Omar Fayed, son of Mohamed Al-Fayed who bought the Magazine in 1996, or from Gale Cengage Learning who appear to own some of the archive for the period 1841 -1992. Both of these latter organisations are actively exploiting the archive commercially and so it would be unlikely for them to allow the free use of one of their scans - if that is what you have found - and so Nick's suggestion makes much more sense.

[Swan]

Thank you very much to both of you for your replies.
They are proving extremely helpful, as I am fairly new to those copyright issues.

I will see what I can do on the British Library's side of things. Unfortunately, I am not based in the UK, but they might accept to let me use some pictures that they have already put on their website.

As for Punch, they have just made me an offer, but as we all predicted, it is probably too expensive for my department's non-existent budget (especially for public domain pictures...)

***

I do have another question. Should I not obtain permission to include the picture itself on our intranet, am I still allowed to simply add a link to a website containing the picture? Or, ideally, the link to the picture file itself. I would properly cite my sources and not include a copy of the picture on our intranet, but just the link for the students to click on.

1) Am I allowed to do that without the website's permission?
2) And I am obliged to check whether the website I'm linking to is legally using the image?
3) Am I allowed to to that even for a work of art which is not in the public domain?

To finish with, although I doubt it's legal: am I allowed to include the picture (even in a slightly reduced size) on our website if I do not download and upload the picture, but simply use the link mentioned before? (Do you understand what I mean? That's something that can often be done (at least from a technical point of view) on discussion boards such as this one)

Thanks in advance for your help

PS: This discussion board is GOLD.

[Swan]

Some update on the British Library:

- Some of the pictures I'm looking for are listed as Public Domain on the BL website, and are downloadable in a legible size.

- But some pictures are listed as Punch LTD copyright, which I do not understand since they are listed as "held by the British Library" and should be in the public domain given the artist's year of death. Does this mean that the British Library does not really hold the copy?

It seems taken from a book instead of an actual magazine issue, so maybe this has something to do with it?

(Unfortunately I cannot provide a link: as a new Copyright Aid member, I am not allowed to post those yet )

[AndyJ]

Hi Swan,

Taking your most recent post first, it seems probable that although the original is actually in the public domain, the digital version which the BL holds may be the thing over which someone other than the BL is claiming copyright, as you mentioned in your original posting. It is highly dubious that this claim is a legitimate one given that the scan was probably made by an automated process involving virtually no human creativity. Unfortunately it is not illegal to make a bogus claim to copyright and the only way to challenge it would be to go to court, but that is too expensive to contemplate.

So to return to your previous posting, yes it is perfectly legal to provide a link as long as you are sure that the site to which you are linking has an authorised copy and it is freely available without needing a login etc. There have been a number of recent CJEU judgments which have said this, the most recent being GS Media. This is useful for you since you are based in France, as obviously the same CJEU acquis applies there. Incidentally French law takes a much harder line over whether copyright applies to photographs which bear no obvious trace of the creativity of the author (see the Jimi Hendrix portrait case for example), and so neither Punch Ltd nor anyone else would want to try suing you in the French courts.

You also mention re-sizing the manner in which the image would appear on the intranet, presumably using a technique such as framing. Again this is OK and has been confirmed by the CJEU as such. You don't need to credit the site which you link to. Below, courtesy of Dr Eleonora Rosati of Southampton University, is a matrix which shows what is or isn't legal in the realm of linking, together with the CJEU decision(s) which make it so.

Although I have used a link to provide the graphic here, I am happy to acknowledge that it is © Dr Eleonora Rosati and has been released under a CC BY licence.


As for your other comment about the images possibly being taken from a book, this should not make any difference as the important fact is the date of death of the artist. Any copyright in the typographical layout of a book would only have lasted 25 years from the date of first publication, and in any case it could not apply to those cartoons which had previously been published in the magazine in the same form.

[Swan]

Ok,

Thank you for your detailed reply.

So, to sum up, for works whose originals are in the public domain:

1) I am allowed to include a link to another website (for exemple the British Library online catalogue)
2) However, I need to make sure that the website in question seems to be posting the picture legally (which is the case for the British Library, who, I would suppose, have obtained Punch's permission).

Thank you as well for your answer on framing.
I will discuss this issue with my supervisors as I've just found out our unofficial recommendations suggest we only use external links opening in another tab to avoid misleading our users into thinking we own the contents.
But this is a minor issue, anyway


I've got 2 extra questions but if you don't have time to answer, that's perfectly fine. I'm already so grateful and I'm just looking for reassurance at this point

3) if the site is posting the picture legally in its country (eg.: Wikipedia explains that according to US law they consider they can freely post faithful reproductions of public domain paintings but do not guarantee it's the case for France), is it still legal for me to link to it, as I'm in another country with different laws? (using only hyperlinks or framing). I would suppose it is okay.

4) If the picture/video/whatever is NOT in the public domain but is LEGALLY posted on another website (probably in another country), can I still link to it? I would suppose so as well...

[AndyJ]

Hi swan,

Your question 3 is interesting. I think, like you, that the answer is, yes, such a link would not be infringing because the source of the item being linked to is only ever that remote server (Wikimedia in your example), and the only copy which will be made as a result of activating the link, will reside on the end-user's device. The CJEU have previously confirmed that the temporary copy of a work on the screen or in the cache of the user's device is non-infringing due to Art 5(1) of the Info Soc Directive. On that basis it doesn't matter where the user is located.

And in the case of question 4, you are correct, largely based on much the same reasoning as in the previous answer.

By the way, I may not have made it clear previously, but if the linking is being done on a website which exists for strictly non-commercial purposes, the positive knowledge element about the legality of the work is not necessary. A person who links in that circumstance only needs to make a reasonable assumption (much as you did over the BL site) that the work is held with the authority of the copyright owner, and they will be protected from liability for infringement. The requirement for a commercial site to go further and satisfy themselves that the work is legally hosted is something the CJEU dreamed up in the GS Media case, and is largely unsupported by the actual European legal framework. Since yours appears to be a company site, albeit an intranet, it is best to err on the side of caution.

[Swan]

I am realizing just now that I didn't properly explain who I'm working for. The 'intranet' in question is an online learning management system (basically an intranet containing interactive lessons) for a public university.

So we're using the documents for purely educational, non-commercial purposes.

I believe that the US and the UK have very loose legislation regarding educational use of documents (or at least that's what I gathered), but this is not the case in France unfortunately, and as we are a large institution we need to be very cautious.

[AndyJ]

Hi swan,

While there are certainly problems under French law over the provision of exceptions for the purpose of education, the decisions I have referred to are all by the various courts which make up the CJEU, and thus the French courts should (!) follow those decisions. On that basis, the question is, "whether those links are provided without the pursuit of financial gain."1. Obviously I know nothing about the actual details of how or whether students are required to pay for these particular services so I can't comment on the answer. However my earlier advice remains that it is prudent to err on the side of caution over any links where you cannot be sure about the provenance of something found on the external hosting site.


1. Quote is taken from paragraph 55 of the CJEU's decision in GS Media C-160/15. In the French version of the judgment the wording is: " ...il convient de déterminer si ces liens sont fournis sans but lucratif ...".