Following on from your very comprehensive reply to my first query, can I run a specific postcard image past you for your opinion? I suspect I know how you will reply but it would help me make my final selection.
The postcard was posted in 1943. It’s from a series by Raphael Tuck and is of a painting ‘after’ JMW Turner, RA – as confirmed on the image itself. On the reverse, the publisher labels it as the work of JMW Turner, RA.
It’s not essential that I include this particular postcard in the book – it’s just one of a collection that relates to a story from the beginning of the 1900s. I can easily just refer to it rather than include the image (I can include the words on the reverse, based on your earlier reply).
Postcard image: oil painting
Re: Postcard image: oil painting
Hi Helen,
It is certainly a little confusing that the caption says that the painting is 'after' JMW T, but the attribution by the publisher is to the great man himself. This is unfortunate because if there was a single attribution which just noted that Turner was the artist, section104(2) would have allowed you to proceed on the basis that it was the work of Turner. And of course if it was Turner's work copyright would never have applied to the painting in the first place, since protection for paintings was not included within the early copyright law, only coming into being with the Fine Art Copyright Act 1862, some eleven years after Turner's death. Even if that Act had applied, retrospectively, to Turner's work, the post mortem period then was only seven years, and so copyright would have lasted until 1858. However it would appear that as the "after Turner" attribution appears on the image side of the card, that is probably the one we should follow in preference to the publisher's note on the other side of the card. That said, the outcome is much the same.
On the basis that "after Turner" is the attribution we must rely on, I think it would be fair and reasonable to apply the copyright term for an anonymous work, namely 50 years from the date of publication. Since I assume that you don't know when the card was first published, we may take it that it was no later than 1943, givng the latest date that copyright would have subsisted as 31 December 1993. As I mentioned in my earlier reply in a different thread, Paragraph 12(3) of Schedule 1 of the Copyright Designs and Patents Act means that since the anonymous work had been made before 1 August 1989 it was not subject to any subsequent extension due the EU Copyright Term Directive, which came into effect in 1995.
Assuming that you have an original postcard then you can freely copy and publish the image without having to worry about copyright infringement. You appear to have satisfied yourself with respect to the matter of personal data. However if the writer is not anonymous, there may still be a problem over whether copyright still subsists in the text. But, even if copyright does theoretically exist in the text, the chances that anyone will be in a postion to make a valid claim on behalf of a deceased relative are extremely remote.
It is certainly a little confusing that the caption says that the painting is 'after' JMW T, but the attribution by the publisher is to the great man himself. This is unfortunate because if there was a single attribution which just noted that Turner was the artist, section104(2) would have allowed you to proceed on the basis that it was the work of Turner. And of course if it was Turner's work copyright would never have applied to the painting in the first place, since protection for paintings was not included within the early copyright law, only coming into being with the Fine Art Copyright Act 1862, some eleven years after Turner's death. Even if that Act had applied, retrospectively, to Turner's work, the post mortem period then was only seven years, and so copyright would have lasted until 1858. However it would appear that as the "after Turner" attribution appears on the image side of the card, that is probably the one we should follow in preference to the publisher's note on the other side of the card. That said, the outcome is much the same.
On the basis that "after Turner" is the attribution we must rely on, I think it would be fair and reasonable to apply the copyright term for an anonymous work, namely 50 years from the date of publication. Since I assume that you don't know when the card was first published, we may take it that it was no later than 1943, givng the latest date that copyright would have subsisted as 31 December 1993. As I mentioned in my earlier reply in a different thread, Paragraph 12(3) of Schedule 1 of the Copyright Designs and Patents Act means that since the anonymous work had been made before 1 August 1989 it was not subject to any subsequent extension due the EU Copyright Term Directive, which came into effect in 1995.
Assuming that you have an original postcard then you can freely copy and publish the image without having to worry about copyright infringement. You appear to have satisfied yourself with respect to the matter of personal data. However if the writer is not anonymous, there may still be a problem over whether copyright still subsists in the text. But, even if copyright does theoretically exist in the text, the chances that anyone will be in a postion to make a valid claim on behalf of a deceased relative are extremely remote.
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
Re: Postcard image: oil painting
That's not what I was expecting you to say – which is good for that particular example. I do have others that I think will be affected and will need to be excluded. I'm not too worried about doing that - I want to be able to defend the content and excluding some will add weight to the process. I hadn't actually considered including any images until recently, so including 95% is still good.
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Nick Cooper
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Re: Postcard image: oil painting
Doing a bit of Googling, it looks like Tuck used the "after" designation incorrectly for simple reproductions. Comparing the postcard image to one of the original work should make it clear whether it is a reproduction or not.