Image copyright question :)

'Is it legal', 'can I do this' type questions and discussions.
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batman300
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Image copyright question :)

Post by batman300 » Thu Sep 21, 2017 8:09 am

Hi, I'm in the UK and new to the forum, and hoping someone can help me with an issue I have. I can't seem to find a clear answer :-/.

I bought an old photo album at a collector's fair a while ago and have spent the last couple of years trying to research the family. I thought I might return it to them, if they want it, but have had no luck so far. The seller told me it came from a house clearance.

I put some images online while doing the research and a TV company has approached me to use one of them. Personally, I have no problem with this but where do I stand with regards to copyright?

The photograph in question is not dated but I think comes from the 1940s (possibly earlier). It is a full length portrait of a gentleman, so easily identifiable. The TV company has sent me a 'stills license agreement', in which I agree I 'am the sole owner of or controls all copyright'... and it's this that worries me.

The license would be bought for a nominal fee of £1.

Who has copyright, if it still exists?

I suppose the prudent thing would be to do nothing, but the issue might come up again and I'd really like to know where I stand. Many thanks!

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AndyJ
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Post by AndyJ » Thu Sep 21, 2017 8:33 pm

Hi batman300

I think that if the album contains photographs from the 1940s or later, it would be prudent to assume that copyright will still exist in some* or all of the photographs. Copyright exists for 70 years after the death of the author of a work, so unless you have some evidence that the photographer died before 31 December 1946, this is my reason for urging caution. If the photographer subsequently died (as seems quite probable) between 1947 and now, the copyright will have passed to his/her heirs. It is quite possible that they know nothing about copyright and therefore are unaware that they hold this right. Quite often where there is no specific bequest dealing with either copyright or a particular chattel such as a photo album, copyright will be deemed to have passed along with the item concerned. And as the album appears to have come from a house clearance, maybe its last owner died without an heir, so technically speaking the value of his/her property (estate) passes to the Crown.

As you have made reasonable efforts to discover the identity of the family, but without success, these photographs fall into a category known as orphan works. You could obviously take a risk and strike a deal with the TV production company, but by signing their clearance certificate you would make yourself, rather than the TV company, liable for any infringement of copyright, if the real owner came forward later.

All is not lost, though. You can, for a smal cost which you can then hopefully pass on to the TV company, indemnify yourself against any such claim if you follow the Intellectual Property Office procedure for obtaining an orphan works licence. You can do this for just the one image or all of them. Follow the link above for a fuller explanation of how to go about it. The IPO staff will happily assist if you need any help with the process.

I might add that a fee of £1 sounds extraordinarily generous on your part. If this particular picture was not available to the TV company, they would have had to source a similar image from one of the many picture agencies who supply this sort of image. And these agencies would probably charge several hundred pounds for a single photograph for editorial use in a TV production.


* Quite possibly since this is a family album, not all the photographs will necessarily have been created by the same photographer, hence some images for much earlier times may be the work of someone who died before 1946, and hence those specific ones would be out of copyright now.
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

batman300
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Post by batman300 » Fri Sep 22, 2017 3:17 pm

AndyJ, many thanks for your time in writing a clear and detailed reply, I very much appreciate having the situation explained to me like this. I wasn't aware I could apply for an orphan works licence, which is what I now intend to do.

Around half of the photographs in the album are early 20th C or later and it's quite possible that copyright still exists for them. The other photographs are earlier and most have the photographic company written on them so I can easily check dates.

Thanks also for pointing out the generosity of a £1 fee! I will ask the TV company to cover the cost of the orphan works licence plus something for my time. I never set out to make a profit on my photo collection, but I never intended to be out of pocket either! Your information has definitely opened my eyes :).

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