Old Newspapers and old photos

'Is it legal', 'can I do this' type questions and discussions.
Old Girl
New Member
New  Member
Posts: 2
Joined: Wed Oct 04, 2017 8:12 pm

Old Newspapers and old photos

Post by Old Girl » Wed Oct 04, 2017 8:45 pm

I am currently writing a history of a school which will be published and sold commercially for the benefit of the old pupils' association.

I have several articles which were taken from the local newspaper for the period 1920-69 which I don't intend to copy but would like to use information from them (such as quote from a speech made by the headmistress or a governor). Is there likely to be a copyright issue with quoting from a speech?

There is also an interview, carried out in 1951, written by (quote) "An Old Scholar" about the local schools in 1880 and his experience at our school. It would be amazing to include some of this in the book, or at least to paraphrase and quote from it. Clearly, the author will be long gone, and he wished to remain anonymous at the time but is there still copyright with the newspaper?

I also have some photographs dating between 1918 and 1969 which I would like to include. Some are pictures of the school, pupils and also those long panorama shots of the entire school. How far back would these still be under copyright? With the panoramic views, there is no studio name so I would not know who to contact. Is that kind of photo in the public domain (especially as so many people put their old school photos up on social media and local websites)

With regard to the newspaper photos, presumably these are covered by copyright from either the photographer or the newspaper. This is the local paper which has since become part of a regional newspaper group and they are not sure who holds the copyright now. How would I deal with that?

Any help you can offer on any of these issues would be amazing - thank you

User avatar
AndyJ
Oracle
Oracle
Posts: 1942
Joined: Fri Jan 29, 2010 12:43 am

Post by AndyJ » Thu Oct 05, 2017 8:07 pm

Hi Old Girl

Of the three recent postings we have had on the forums, this is by far the trickiest to answer in simple terms.

But let's do the simple stuff first. Almost without doubt, quoting verbatim from old newspaper reports, or speeches which have themselves been quoted, will be permissible under the newly-created fair dealing exception for that purpose (section 30 (1ZA)). The main things to remember are to use no more than is necessay for your purpose and to cite your source(s).

The old school photographs pose more of a challenge because you can't 'quote' them - you have reproduce them in their entirety. For any you can positively date to before 1 June 1957, copyright will have lasted for just 50 years from the end of the year in which they were taken and then expired. Thus all such photographs will be out of copyright now. Any photographs created after that date became subject to the more usual period of protection based on the lifetime of the author (or photographer in this case) plus 70 years. In other words, these will still be in copyright and thus you need to get permission to use them. But since you have been unable to identify or locate the photographers responsible, the photographs are likely to be what are known as orphan works, and thus you can use the Intellectual Property Office's Orphan Works Licensing Scheme to indemnify yourself against any future claim. More details about this here.

And finally the trickiest part: the newspaper photographs. They follow the same formula as that mentioned above, but because the more modern newspaper photographs (ie ones made post May 1957) are unlikely to qualify for orphan works status, and you need permission to use them, it will be necessary to research as thoroughly as possible to uncover the successor in title to any old newspaper. Places like the British Library Newspaper Archive or the Newspaper Licensing Agency may well be able to help as long as you know the name of the original publication and date on the edtion. Indeed, if the current publisher is one of their members, the NLA may be able to issue you a licence to use the photograph, although as they are mainly set up to deal with contemporary newsprint output for use in digital media, I'm not sure how flexible their licensing arrangements are for a case like yours. If the NLA can't help, then you would have to get permission from the current publisher who had inherited the title you are interested in. It sounds as if you may have already explored that avenue. So if the current publisher is unable to confirm that they own the copyright, you would then almost certainly be able to follow the route of Orphan Works Licensing, although the IPO staff can advise you on this.

As you are probaly aware reproducing old half-tone photographs directly from physical newspapers can result in severely degraded reproductions, which can be further degraded when published in paper book form. For that reason, if you are able to locate the current owner(s) of the newspaper title you may be able to track down the actual original photograph, either in their archive, or more likely in a picture agency which might have acquired the picture stock when the paper ceased trading. A useful place to start on that sort of quest is the British Association of Picture Libraries and Agencies.
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

Old Girl
New Member
New  Member
Posts: 2
Joined: Wed Oct 04, 2017 8:12 pm

Post by Old Girl » Thu Oct 05, 2017 9:26 pm

Hi AndyJ
Thank you so much for such a comprehensive answer. That is extremely helpful, and the fact that so much of what I have is pre 1957 makes at least three quarters of my content more manageable.

I shall do as you suggest with regards the remaining photos and the newspaper pictures. I was wondering if anyone had the original images because I can see the poor quality in the newsprint is going to make them difficult to reproduce. A discussion on the local FB page today gave a name that sparked a memory and I am following that up because his descendants might know who the local news photographer was.

Once again - thank you for your help

User avatar
AndyJ
Oracle
Oracle
Posts: 1942
Joined: Fri Jan 29, 2010 12:43 am

Post by AndyJ » Fri Oct 06, 2017 6:41 am

Hi again,

Newspapers were traditionally very good at maintaining their archives (or morgues as they were sometimes called) and so there is a good possibility that you may find their picture collection preserved somewhere, either in a picture agency, or a museum or county archive. The former is more likely because when the paper folded, the liquidators will have sought to monetize as much of the assets as possible.
And of course, the newspapers used to sell prints of their pictures to the public so it may be that you will come across some relevant news photos which have been handed down in family photograph albums of former pupils of the school.
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

rmlaws54
New Member
New  Member
Posts: 8
Joined: Tue Mar 06, 2018 3:05 pm

Re: Old Newspapers and old photos

Post by rmlaws54 » Wed Mar 07, 2018 11:20 am

This question about the difference between a scan of the printed image and a scan of the original photograph is an interesting one. I imagien that it is not merely a question of the image quality but also of what has been published and what has not.

As an example, The Illustrated London News will happily sell you a licence to reproduce a photograph from their archive, but often the image can also be found on the internet. If the image was published in, for example, 1873 then it is clearly out of copyright. I was puzzled about why anyone would 'buy' it again and not simply use one of the internet copies, or ev n scan their own physical copy of the ILS if they have it.

But the answer is presumably that ILN will sell you a licence to use a high resolution image and that is a new work because it has not been published before and therefore acquires a new copyright life.

Robert

User avatar
AndyJ
Oracle
Oracle
Posts: 1942
Joined: Fri Jan 29, 2010 12:43 am

Re: Old Newspapers and old photos

Post by AndyJ » Wed Mar 07, 2018 3:57 pm

Hi Robert,

As you have probably seen from reading some of the other threads on this and the other forums here, when an old original work which itself is out of copyright is scanned to produce a digital image, the organisation responsible fo the scanning often claims a new copyright in the digital version. However, this has no connection with whether the digital version has been published or not (publication has no bearing on the existence of copyright in the current law). Such claims to copyright, weak though they generally are, mask the fact that the institution concerned often holds a monopoly over access to the original work, and in reality the fee being charged is for access, and not for a licence to use something which is covered by copyright..
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

rmlaws54
New Member
New  Member
Posts: 8
Joined: Tue Mar 06, 2018 3:05 pm

Re: Old Newspapers and old photos

Post by rmlaws54 » Thu Mar 08, 2018 10:25 am

thank you. I had understood that the production of a scanned image did not normally make it a 'new work', but you have clarified the situation further.

Robert

peter
New Member
New  Member
Posts: 2
Joined: Wed Jun 13, 2018 9:28 am

Re: Old Newspapers and old photos

Post by peter » Wed Jun 13, 2018 9:59 am

from the above discussion, am I right in thinking that it is alright to scan and print photographs from a weekly journal printed in the 1920's if there is no attribution to the photographer?
I'm thinking here of 'The Engineer' and 'Engineering'.
They are (hopefully!) to be included in an article for our model railway club magazine with a circulation of only 110 copies, although some members do insist on a digital copy.
the 'Engineer' still exists as a digital magazine. I have e-mailed them but so far have had no response
I will probably go to the British Library to scan them, although there is a digital version on gracesguide.com which I can access.
Thanks in advance
peter

User avatar
AndyJ
Oracle
Oracle
Posts: 1942
Joined: Fri Jan 29, 2010 12:43 am

Re: Old Newspapers and old photos

Post by AndyJ » Wed Jun 13, 2018 3:07 pm

Hi Peter,

Yes, you should be OK with scanning pictures from magazines published in the 1920s, but make sure you don't include any text as this may well still be in copyright. That said, a short quotation of any such text, perhaps describing the subject of the photograph, would be permissible under the quotation exception provided that you mention the source.
As for where you obtain your scans, going to the original source is best, although inevitably if the image is a half-tone print, the quality won't be all that great. I suggest that you avoid using existing digital versions as some people seem to insist that making a digital copy creates a new copyright. This highly debatable, especially where the digitization process is largely automatic, but using such images unless you are sure that no-one is claiming copyright, can involve you in unnecessary hassle.
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

peter
New Member
New  Member
Posts: 2
Joined: Wed Jun 13, 2018 9:28 am

Re: Old Newspapers and old photos

Post by peter » Wed Jun 13, 2018 10:29 pm

thank you for your prompt reply.
most informative and helpful

Peter

ATMOSBOB
Regular Member
Regular Member
Posts: 19
Joined: Tue Jul 03, 2018 7:55 am

Re: Old Newspapers and old photos

Post by ATMOSBOB » Tue Jul 03, 2018 8:18 am

"I have several articles which were taken from the local newspaper for the period 1920-69 which I don't intend to copy but would like to use information from them (such as quote from a speech made by the headmistress or a governor). Is there likely to be a copyright issue with quoting from a speech?"

If a newspaper reports a speech the copyright belongs to the newspaper, not the person who made the speech. I have never known a newspaper refuse permission.

User avatar
AndyJ
Oracle
Oracle
Posts: 1942
Joined: Fri Jan 29, 2010 12:43 am

Re: Old Newspapers and old photos

Post by AndyJ » Tue Jul 03, 2018 8:55 pm

Hi ATMOSBOB,

Thanks for your contribution. However I am not sure why you assert that copyright in a speech which has been reported in a newspaper belongs to the newspaper. The Copyright Designs and Patents Act 1988 (and its two predecessors) is perfectly clear that copyright belongs to the person who creates the work (ie the author), who in this case will be either the speechmaker, or possibly their speechwriter. You are possibly confusing this issue with the copyright which the newspaper owns in respect of the published edition (see section 8 of the CDPA) which covers the typographical layout of the newspaper or magazine etc, but not the specific text of a speech which is quoted in the paper. It is also possible that you have in mind a very old court case (from 1900) known as Walter v Lane in which the House of Lords found that the newspaper reporters who copied down a politician's speech using shorthand were entitled to copyright in their work, based on the old 'sweat of the brow' approach to determining originality. This is no longer good law and certainly wouldn't be the outcome today.
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

ATMOSBOB
Regular Member
Regular Member
Posts: 19
Joined: Tue Jul 03, 2018 7:55 am

Re: Old Newspapers and old photos

Post by ATMOSBOB » Sat Jul 07, 2018 1:00 pm

Dear Andy

I'm not confused. I've been through this with the Observer and the Times and they both take the same view. I must admit I was surprised myself. It isn't related to shorthand notes but something to do with the form of words.

User avatar
AndyJ
Oracle
Oracle
Posts: 1942
Joined: Fri Jan 29, 2010 12:43 am

Re: Old Newspapers and old photos

Post by AndyJ » Sat Jul 07, 2018 4:43 pm

Hi ATMOSBOB,

I supsect that what the newspapers you dealt with were relying on is the Walter v Lane decision, which effectively said that a journalist owned the copyright in his recording of the words of a speaker, either through shorthand or via a tape recorder (the latter would actually qualify as a sound recording, and not a literary work, until it had been transcribed). However the Walter v Lane decision was based, as I mentioned, on the outdated doctrine of 'skill and labour' also known as 'sweat of the brow'. This no longer holds as the yardstick for originality (and in any case it wouldn't apply to a mechanical recording made using a dictaphone or mobile phone etc).

But the existence of this journalistic copyright does not replace or negate the original copyright which is owned by the speaker or speechwriter; it runs alongside it. In theory the only difference between the two versions may well be such things as punctuation marks which the journalist inserts to reflect the speaker's pauses or emphasis.

Since you seem reluctant to accept the letter of the law, I can do no better than to use the quotation exception to quote from the standard work on law for journalists: McNae's Essential law for Journalists 21st Edition* pages 347-8:
Copyright exists in spoken words such as public speech as soon as the speaker's words are recorded in some form, with or without permission. The copyright arises even if the speech is not delivered from a script, but is, for example, uttered in an improvised comedy show, or in an interview with a journalist. The speaker as the author of a literary work - that is, his/her words as recorded, - owns the copyright in that work, unless he/she is speaking in the course of his/her employment, in which case the employer owns the copyright, or is reciting words in which someone else holds the copyright (for example from a play script).
The next paragraph in the book goes on to describe the circumstances in which section 58(1) CDPA allows a journalist etc to presume that he may copy the original work without infringing the author's copyright, provided that he abides by the provisions set out in section 58 subsection (2).

The third pargraph in the same section of McNae's covers copyright in the journalist's copy as I have already outlined.

However, these days politicians and others in the public realm usually issue copies of their speeches (often in advance) to journalists, and under such circumstances there are absolutely no grounds for a newspaper to claim any sort of ancilliary copyright. That said, it is worth noting that any paraphrasing of the original speech will usually be covered by a new copyright which is held by the newspaper, since it would not be the exact words of the original speech.

* The 24th edition was published on 14 Jun 2018.
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

ATMOSBOB
Regular Member
Regular Member
Posts: 19
Joined: Tue Jul 03, 2018 7:55 am

Re: Old Newspapers and old photos

Post by ATMOSBOB » Wed Jul 11, 2018 8:24 am

Dear Andy

I think we are looking at two different scenarios here.

1/ If the person making a speech issues a copy to the press which is published verbatim then of course the copyright remains with the speech writer.

2/ If someone is interviewed by a journalist then the form of words often differs as the journalist tries to make grammatical sense of what is said. Not just a few commas. I have been interviewed a few times and from my experience what appears in a newspaper or magazine bears very little relationship to the actual words used. Even on the radio I am pleasantly surprised how much of my hesitations, ums, errs and false starts get removed to make me seem quite articulate.

Do you have any recent case law?

Post Reply