Vintage Railway Posters

[HMcCS]

I have a question about commercially reproducing old railway posters.

I think I have understood from other posts on this forum that the copyright on UK railway posters produced before 1947 should have expired, if the artist cannot be identified (date of publication plus 70 years). Is this correct?

The National Archives states that the copyright for railway posters is owned by the Science and Society Picture Library (I can't post a link as a new user, but this is in the 'Using materials from the National Archives' booklet).

Would this only apply to works produced after 1947?

If the copyright has expired, and I own a physical copy of a poster, is there anything to prevent me from scanning it and selling digital or printed copies of the image? Even if the Science and Society Picture Library also sells a digital image of the same poster?

Thanks in advance for any advice.

[AndyJ]

I think I have understood from other posts on this forum that the copyright on UK railway posters produced before 1947 should have expired, if the artist cannot be identified (date of publication plus 70 years). Is this correct?

I assume you are referring to a provision in 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,

[...]

The problem with this subsection is that it refers to authors whose identity was unknown to anyone, not just to someone trying to discover the author's identity today. Obviously many people would at the time have known the identity of the artists who produced these posters, and indeed some experts may even today be able to attribute a particular poster to a specific artist based on their knowledge of the artitst's work generally, and so section 12(3) is unlikely to apply to these individuals. It is more likely that the work of artists whose identity is not known today will come under the definition of orphan works, and therefore will be eligible for the IPO's Orphan Works Licensing Scheme.

The National Archives states that the copyright for railway posters is owned by the Science and Society Picture Library (I can't post a link as a new user, but this is in the 'Using materials from the National Archives' booklet).

Would this only apply to works produced after 1947?

The next issue is that in 1948 the railways were nationalised and thus posters which were produced after nationalisation and up until privatisation (around 1997) are subject to Crown Copyright, which incidentally means that section 12(3) does not apply to them. The rules for the duration of Crown Copyright can be found in section 163(3) CDPA. The National Archives (or at least the Office of Public Sector Information which is part of TNA) is the lead authority on Crown Copyright and so you should seek clarification from them over whether the Science and Society Picture Library actually owns an exclusive licence to any posters covered by Crown Copyright. There is no record of the Crown Copyright having been assigned to the SSPL.

If the copyright has expired, and I own a physical copy of a poster, is there anything to prevent me from scanning it and selling digital or printed copies of the image? Even if the Science and Society Picture Library also sells a digital image of the same poster?

Yes, if copyright has expired and you have access to a poster, you are perfectly entitled to copy it and sell prints or digital copies which you have made. It would be prudent to document all stages of this digitization process in case you face a legal challenge from SSPL who may beleive that you have used one of their digital copies without permission.

[HMcCS]

Thank you very much for your thorough response. I have another couple of questions.

Does the Orphan Works licensing scheme apply if the date of the work means that the artist is almost certain to have died over 70 years ago? Using your suggested guideline of a 25 year old artist who lived to 75, this would apply to works produced before 1897.

If I can identify the name of the artist, but am unable to determine when they died through biographical research, how do I determine when copyright will expire?

In the case of railway posters, the artwork was produced by an artist employed or commissioned by a railway company. To double check, this means that the copyright was owned by the railway company, but the copyright expires 70 years after the artist's death - is this correct?

In the case of posters produced before nationalisation, where copyright has not yet expired, how would I go about tracing whether SSPL actually own the copyright? The copyright would have been owned by the individual railway company which commissioned the poster (e.g LNER); would there be a public record of this having transferred to British Rail and then to the National Railway Museum / SSPL (I assume this would be the trail)? There were initially several railway museums, before NRM was opened in 1970, so might copyright have been transferred to these instead? I appreciate that this is guesswork, but would welcome any advice on where such records might be held.

Many thanks for any further help you are able to offer.

[AndyJ]

Hi again HMcCS

Does the Orphan Works licensing scheme apply if the date of the work means that the artist is almost certain to have died over 70 years ago?

No, if you can reasonably assume that the author probably died more than 70 years age, you can also assume the work is now in the public domain, so no need for a licence.

If I can identify the name of the artist, but am unable to determine when they died through biographical research, how do I determine when copyright will expire?

If there are no other clues, such as the date that the work was published combined with a reasonable estimate as to the age of the artist at the time of publication, then this would be a good candidate for the orphan works licensing scheme.

In the case of railway posters, the artwork was produced by an artist employed or commissioned by a railway company. To double check, this means that the copyright was owned by the railway company, but the copyright expires 70 years after the artist's death - is this correct?

Yes. Under UK law the ownership of the copyright is entirely separate from the way the length of the term is calculated. This is in contrast to the USA where for works made under the 'work for hire' rules, the term for corporately-owned copyright is fixed at 120 years after creation or 95 years after publication, whichever is the shorter.

In the case of posters produced before nationalisation, where copyright has not yet expired, how would I go about tracing whether SSPL actually own the copyright? The copyright would have been owned by the individual railway company which commissioned the poster (e.g LNER); would there be a public record of this having transferred to British Rail and then to the National Railway Museum / SSPL (I assume this would be the trail)? There were initially several railway museums, before NRM was opened in 1970, so might copyright have been transferred to these instead? I appreciate that this is guesswork, but would welcome any advice on where such records might be held.

It can be quite difficult to independently follow the trail of copyright ownership in the corporate world, because many of the records may well not be publicly accessible. Conversely where claims to ownership are made (say by the SSPL), these are likely to be backed up by a reliable paper trail. That said, from what you wrote earlier, I'm not sure if SSPL is actually claiming copyright ownership, rather it is TNA who are asserting this to be the case. I think your assumption that the British Railways Board would have inherited any intellectual property rights is likely to be correct, and thus TNA (in its former incarnation as the Public Record Office) may have received the posters under the normal public record deposit arrangements. However, I am not at all certain that the British Railways Board was obliged to deposit its records with the PRO, as it is not listed in the First Schedule of the Public Records Act 1958 as enacted. "Strategic Rail Authority" was later added to the list of bodies by the Transport Act 2000 which set up the SRA in place of the British Railways Board. In any event, I think TNA may have the answer to your specific question, because they should have a record of what they once held and what was transferred to other bodies such as the railway museums etc.

As Network Rail maintain an archive, it might be worth contacting them first since they may well have a wealth of knowledge and expertise about such things: askthearchivist@networkrail.co.uk

[HMcCS]

That's extremely helpful, thank you very much.