Old photos/postcards

'Is it legal', 'can I do this' type questions and discussions.
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pilax23
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Old photos/postcards

Post by pilax23 » Fri Apr 13, 2018 6:34 pm

I've noticed that some companies/individuals who sell photos/postcards claim copyright by the fact of owning the image, even though they did not create the image. I'm talking about images from the turn of the 19th/20th century. They then ask a licence fee for reproduction. Can they in fact do this? is there anything to prevent me reproducing the image? Very often there are multiple copies of these old postcards. If every owner claimed copyright there would be multiple copyright holders. Advice please.

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AndyJ
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Re: Old photos/postcards

Post by AndyJ » Sat Apr 14, 2018 7:40 am

Hi pilax,

Although I can't be sure it applies in your particular case, I suspect that what the copyright claims relate to are the digital versions of the original postcard photographs, As you surmise, it is highly unlikely that any copyright will remain for the originals. If this is the case, then these sellers are merely copying what many museums and art galleries do when they sell reproductions of old items in their collections and often claim copyright in these new products, such as posters, calendars and postcards.

Legally speaking it's a grey area because we haven't had a case in the courts which has ruled on the issue. However many academics, lawyers and other commentators including the Government's own Intellectual Property Office (see page 3 of this Copyright Notice) are of the opinion that copyright is unlikely to exist in such cases. You can read more about this in another thread on this forum, where the same issue is discussed.

Unfortunately it is not illegal under copyright law to make a false claim of copyright ownership, and therefore the only way to challenge such behaviour is to ignore the claim, provided that you are sure that the original image cannot still be in copyright, and see if the seller tries to do anything to support his/her claim.
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

pilax23
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Re: Old photos/postcards

Post by pilax23 » Sat Apr 14, 2018 10:34 am

Many thanks for that. I have noticed browsing your excellent forum that it would seem that any photograph taken before 1945 is out of copyright. Is that correct and would it apply if a photograph (pre-1945) has been published subsequent to that date?

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AndyJ
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Re: Old photos/postcards

Post by AndyJ » Sat Apr 14, 2018 12:21 pm

Hi pilax,

As you are probably aware if you have seen some other posts here, copyright in photographs taken before 1 June 1957, when the 1956 Copyright Act came into effect, are governed by section 21 of the Copyright Act 1911. This applied a standard 50 year term to all photograpghs, irrespective of whether they had or had not been published. The 1956 Act did not alter this term, for any photograpghs which were in existence and protected at the time the newer Act came into force. In other words a photograph taken on 31 May 1957 would continue to be protected for 50 years and the copyright would then end. Photographs made on 1 June 1957 and later were then subject to a copyright term of the lifetime of the author plus 50 years from the end of the year the author died. However, in 1995 the UK was obliged to introduce changes to conform with European law. This increased the post mortem element to 70 years and it also had retrospective effect on any photograph* which was still in copyright on 1 July 1995. In other words any photograph created before 1 January 1945 would not be affected because copyright in it would have ended on 31 December 1994.

In 1996, further Regulations necessitated by EU law added more complication with respect to unpublished images from any period even though they had fallen out of copyright. The new rules said that anyone who legally published a previously unpublished photograph, earned themselves a 25 year period of protection known as 'Publication Right', which is very similar in its operation to copyright, except that it is owned by the publisher and not the author or the author's heirs. To date the extent of this provision has not been tested in court here in the UK.

So to return to your question, generally speaking any photograph taken and published in the UK before 1945 will now be out of copyright. Anything taken before 1945 and published before 1993 will be free of both copyright and publication right. One exception to the general rule is that anything to which Crown or Parliamentary Copyright applies will be subject to different rules.


* There are some special rules affecting works which were protected for a greater length of time in another European Economic Area member state on 1 July 1995 which don't really concern us here.
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

pilax23
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Re: Old photos/postcards

Post by pilax23 » Sat Apr 14, 2018 1:20 pm

Thanks once again. Now much clearer.

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Re: Old photos/postcards

Post by pilax23 » Tue Apr 17, 2018 7:05 pm

This is typical of what I was referring to: "Note: these images are provided for personal and private use only. All purchased images remain copyright of X You should not make your own additional copies and pass them on in any way". These are clearly not the work of X as they are photos taken more than a 100 years ago.

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Re: Old photos/postcards

Post by Nick Cooper » Thu Apr 19, 2018 10:28 am

The 1956 Act introduced a term of 50 years from publication for photographs. It was only the 1988 CDP Act that introduced photographer's life plus 50 years, but it was explicitly stated that existing photographs taken before it became law (on 1 August 1989) were still covered by 1956 Act terms (and by implication 1911 Act for pre-1957 photographs). These transitional savings are still extant in the "current" form of the 1988 Act. Unpublished photographs taken between 1 June 1957 and 31 July 1989 are now 2039 Works, unless published before then, as per Schedule 1, 12 (4) (c).

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