Photo copyright 1945 - 1957

[pilax23]

Hello, I have a query about copyright on photos taken between 1945 and 31 May 1957. What is the length of copyright for these images?

[AndyJ]

Hi pilax,

Most photographs taken in the UK before 1 June 1957 would have been subject to the 1911 Copyright Act, and specifically section 21 of that Act which said:

21 Provisions as to photographs

The term for which copyright shall subsist in photographs shall be fifty years from the making of the original negative from which the photograph was directly or indirectly derived, and the person who was owner of such negative at the time when such negative was made shall be deemed to be the author of the work, and, where such owner is a body corporate, the body corporate shall be deemed for the purposes of this Act to reside within the parts of His Majesty's dominions to which this Act extends if it has established a place of business within such parts.

The 1956 Copyright Act which came into force on 1 June 1957 did not alter the situation for photographs already in existence. You can find the detail for this in Paragraph 2 of the Seventh Schedule of the Copyright Act 1956.

So to answer your question, unless the photographs were covered by Crown copyright*, the duration of copyright protection would have been 50 years from the date the photograph was made (ie when the film was exposed in a camera) assuming this occurred in the UK or a number of UK overseas territories. For photographs taken outside the UK etc during this period, even if the photographer was British or a British resident, the situation is more complicated as it is likely that the law of the country where the photograph was taken might determine the duration.

In view of pilax's follow on comment (see below) I'm amending this posting to reflect the effect of subsequent EU legisation. Any photograph which was still in copyright on 1 July 1995 (that is to say, any photograph created on or after 1 January 1945) became subject to a new copyright duration based on the lifetime of the author of the work, plus seventy years from the end of the year in which he or she died, which is the situation today for all literary, dramatic, musical or artistic works. If the identity of the author is unknown, section 12 (3) and (4) of the Copyright Designs and Patents Act 1988 applies:

(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,

subject as follows.

(4) Subsection (2) [ie 70 years following the year of death] applies if the identity of the author becomes known before the end of the period specified in paragraph (a) or (b) of subsection (3).

*Crown Copyright in photographs lasted for 50 years from the end of the year in which the work was first published, rather than when it was made.

[pilax23]

Many thanks for your answer. I'm a bit confused and the reason is a reply you gave to my earlier query which was this:

"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."

I assumed that this would apply to the period I mentioned - 1945 - 1957.

[AndyJ]

Hi pilax,

You are absolutely right to be confused! While my previous answer was correct as far as it went, it did not go far enough. I completely neglected to add the part you quoted about the effect of the EU Term Directive. As you have identified, this radically altered the position for any photographs made after 31 December 1944. Apologies for my earlier misleading answer.

[pilax23]

Many thanks. That's now completely clear. As others have remarked, what an excellent site this.

[Nick Cooper]

The "problem" for the supposed EU-based extension is that the Paragraph 12 of Schedule 1 as revised still states:

(2) Copyright in the following descriptions of work continues to subsist until the date on which it would have expired under the 1956 Act—
...
(c) published photographs and photographs taken before 1st June 1957;

http://www.legislation.gov.uk/ukpga/198 ... ting-works

It could be argued that the 1995 SI did indeed change post mortem terms from 50 to 70 years, but under the 1911 and 1956 Acts photographs were not actually covered by post mortem terms, hence Schedule 12 paragraph 12 remains unamended. The fact that other non-post mortem terms (e.g. Crown Copyright) were not increased backs this up.

[tsrwright]

Hi Andy, sorry not sure it is completely clear

In view of pilax's follow on comment (see below) I'm amending this posting to reflect the effect of subsequent EU legisation. Any photograph which was still in copyright on 1 July 1995 (that is to say, any photograph created on or after 1 January 1945) became subject to a new copyright duration based on the lifetime of the author of the work, plus seventy years from the end of the year in which he or she died, which is the situation today for all literary, dramatic, musical or artistic works. If the identity of the author is unknown, section 12 (3) and (4) of the Copyright Designs and Patents Act 1988 applies:

(3) If the work is of unknown authorship, copyright expires—
...
(+
*Crown Copyright in photographs lasted for 50 years from the end of the year in which the work was first published, rather than when it was made.

Could I please ask how you arrived at the 1 January 1945 date so that I can be sure my own thinking is correct l.

[tsrwright]

I think I posted this in the wrong window - sorry

Could I please ask how you arrived at the 1 January 1945 date so that I can be sure my own thinking is correct l.

What I understand (and it is not easy), is that for works in which copyright had expired in the UK before 31 December 1995, but which were still in copyright in another (European) state on 1 July 1995, the copyright was revived with the nature and length of the period extended. The expiry of copyright then became 70 years after the end of the year of first publication (if it was anonymous) or, if the author was known, it ended in either 2039 or 70 years after the end of the year of death of the author (whichever came first).

It is widely written (but maybe not here) that the German copyright period is/was 70 years and it would follow that the revived and extended copyright of the UK 1995 regs would apply to any photograph taken after 1 January 1925. My concern is this would require clearance on most images to be used in a substantial book about pre WW2 matters. However, I know that the German copyright period for photographs is 50 years and, from 1985 to 1995, I am told it was as follows:

Simple photos 25 years
Contemporary history 50 years
Photos attributed to an individual photographer with a certain individual, artistic expression 70 years

In my case all the photos would be the 'contemporary history' type so either way the relevant period would be 50 years and the relevant date would be 1 January 1945

Is it from the German 50 years after production that you get the 1 January 1945 date you were referring to?

Many thanks,

[AndyJ]

Hi Terry,

In answer to your last question, no, the 50 year period I was using in the previous postings came from Section 21 of the UK's 1911 Copyright Act, which I quoted in the second posting of this thread. Although there was another Copyright Act in 1956, this did not change the rules as far as photographs already in existence were concerned.

The situation in Germany which you mention was largely the reason why the EU directive on the duration of the copyright term (Directive 93/98/EC later replaced by Directive 2006/29/EEC) had to be applied retrospectively. That first directive was also responsible for the abolition of the German concept of photographs contemporary history.

So to answer your broader question, you need to know where the photographs you are interested in originated and where the book was published. If the answer in both cases was the UK, then UK law needs to be applied. However if the book was published in Germany, then the German law applicable at the time will apply. If the book was published in Germany before 1 January 1945
and the photographs fall into either the simple photograph (Lichtbilder) or photographs of contemporary history (Bildnisse aus dem Bereiche der Zeitgeschichte*) categories, then copyright in them will have ceased to exist before the 1 July 1995 cutoff, and the new EU wide rules would not have revived copyright in them. If however any photograph falls into the narrower category of Lichtbildwerk, where the intellectual creativity of the photographer is evident, then the 70 years from publication rule will apply, meaning that only if publication was before 1 January 1925 would such photographs escape the new term of the lifetime of the photographer plus 70 years, brought about by the EU Directive.

* Bildnisse strictly translates as 'portraits' but I do not know whether the provision in the 1907 German Act (Gesetz betreffend das Urheberrecht an Werken der bildenden Künste und der Photographie) only applied narrowly to formal human portraits, or if it could include the wider concept of a portrait of contemporary life, eg a street scene.

[tsrwright]

Many thanks for that Andy, and I believe I am on the right track. Pardon me taking the space but I have written as in the following short paper to guide my own work.

'The law of copyright is a minefield that is so treacherous that even the experts can be wary of venturing into it. For example, in one report on a research study which examined the copyright issues involved in publishing some literary scrapbooks, ‘Digitizing the Edwin Morgan Scrapbooks: Copyright Guidance Notes’, (Beazley, Patterson and Torremans, 2018) the authors say, in effect, that it is too hard to give reliable guidance on the copyright status of a pre-1945 photograph.

'This is often the position of archivists and librarians who understandably take a conservative view and may not allow such material to be copied for publication. And with the publication in a book of hundreds of 1900-1939 photographs in mind, I have been trying to get to the truth of the matter.

'This can only be done by looking back though past legislation. In summary, in the UK:
.....

'Then came an EU directive to harmonize European laws from which came the Duration of Copyright and Rights in Performances Regulations 1995
....

'Germany was the benchmark for the harmonization of copyright expiry
....

'Based on this 50 year German copyright period for photographs:
• A photograph taken before 1 July 1945 did not have had its UK copyright revived in 1995.
• A photograph taken on or after 1 July 1945 had its UK copyright revived in 1995 with a copyright period of 70 years after the end of the year of first publication if it was anonymous or, if the author was known, it ended in either 2039 or 70 years after the end of the year of death of the author (whichever came first).

'Any photograph taken before 1 July 1945 is out of copyright in the UK.

'As will be seen over, this analysis more or less aligns with the relevant part of the first chart. The second chart is from a book for archivists (Padfield,T) and states that a photograph taken before 1 June 1957 has a copyright period of 70 years; this may be so but it does NOT apply to a photograph taken before 1 July 1945. Is it any wonder this business is confusing?

Does that sound about right?

I tried to write similarly regarding the copying and online publishing of complete magazine pages (anonymous authors only) but gave up!

Next I have to examine the Australian position.

Many thanks again for a great facility.

[AndyJ]

Hi Terry,

I think that summary works pretty well. A couple comments if I may.

if the author was known, it ended in either 2039 or 70 years after the end of the year of death of the author (whichever came first)

This is not quite correct. If the author is known then the term is his/her lifetime plus 70 years from the end of the year in which they died; if the date of death is unknown, then a reasonable assumption may be made to determine the likely date of death (see section 57). The 2039 cutoff applies to unpublished photographs made by a known author between 1 January 1945 and the death of the author if this was before 1 January 1969. And note that copyright period in the latter case ends on 31 December 2039 rather than 'in' 2039. This was not due to the retroactive effect of the EU Directive. As you can work out 2039 is 70 years from 1969.

The reason for this is complication is that up until the 1988 Copyright Designs and Patents Act (which came into force on 1 August 1989) the copyright in published photographs remained 50 years from the date they were made. The 1956 Copyright Act (section 3) introduced special provisions for unpublished photographs, such that the 50 year term did not commence until they were published. The 1988 Act brought all photographs (whether published or unpublished) into line with the other forms of copyright works (literary, dramatic, artistic and musical) by making the term the lifetime of the author plus 50 years. This applied to all works which were in copyright on 1 August 1989. There remained the anomaly of unpublished photographs made after the 1956 Act but before the 1988 Act. Technically they were not 'in copyright' because their copyright term had not started. Schedule 1 (the Transitional Provisions) of 1988 Act addressed this issue in paragraph 12 (4) which says

(4) Copyright in the following descriptions of work continues to subsist until the end of the period of 50 years from the end of the calendar year in which the new copyright provisions come into force—

(a) literary, dramatic and musical works of which the author has died and in relation to which none of the acts mentioned in paragraphs (a) to (e) of the proviso to section 2(3) of the 1956 Act has been done;

(b) unpublished engravings of which the author has died;

(c) unpublished photographs taken on or after 1st June 1957.

(1 June 1957 is the date the 1956 Act came into force). This means all unpublished photographs in limbo would cease to have copyright protection at the end of 2039 (ie 1989 + 50 years).

I'm not sure 'confusing' quite covers it!

You mention Tim Padfield's excellent book. He and I have had some lively discussion about the correct interpretation of Article 10(2) of the EU Term Directive. This reads

2. The term of protection provided for in this Directive shall apply to all works and subject matter which are protected in at least one Member State, on the date referred to in Article 13(1) [1 July 1995], pursuant to national provisions on copyright or related rights or which meet the criteria for protection under Directive 92/100/EEC

Tim maintains that this effectively means that when deciding which works were still in copyright on 1 July 1995 we need to look at a country with the longest existing term of protection (namely Germany and Spain) irrespective of where the work was originated*. However I maintain that this is not what Article 10(2) means because that would be contrary to Article 6(8) of the Berne Convention, which reads

(8) In any case, the term [of protection] shall be governed by the legislation of the country where protection is claimed; however, unless the legislation of that country otherwise provides, the term shall not exceed the term fixed in the country of origin of the work

Since the legislation of Germany and Spain did not make any such provisions, prior to the EU directive, it is wrong to interpret Article 10(2) to mean that a work published in the UK when the term was the author's lifetime plus 50 years, would have been entitled to an extra 20 years of protection just because that is what it would have had, if it had been originated in Germany. Thus, for me, the wording of Article 10(2) of the EU directive should be read as meaning as long as a work originated somewhere in the EU and was still in copyright under the laws of the originating country on 1 July 1995, then the new EU mandated term should apply. As the matter has not been ruled on by a court, we cannot say which of us is right. However in support of my argument, I suggest that the EU Directive would have been worded more clearly if Tim is right. What's more, the recitals in the preamble to the Directive do not mention this aspect which I would have expected if Tim's interpretation is correct.

The good news is that you should find the Australian situation much simpler. Their copyright law largely mirrors the UK law for most of the last century, and does not have the extra confusion caused by the EU. If you want to look at the relevant legislation you can find it all on the WIPO website here.

* in fairness to Tim's argument, it is worth noting that entirely separate from the EU Term Directive, Article 7 of the EEC Treaty (the Rome treaty) says:

Article 7. Within the field of application of this Treaty and without prejudice to the special provisions mentioned therein, any discrimination on the grounds of nationality shall hereby be prohibited.

The Court of Justice of the European Union has accepted that this means that Article 10 of the EU Term Directive must not be applied in way which discriminates against a particular nationality within the Union, in a way that a work originating in one European Member State is afforded less protection than might be available in another Member State. In order not to go too far off the subject here, I will refrain from including my counter argument to this particular reasoning.

[tsrwright]

Thank you very much for that Andy.I will amend my note.

I don't think I have ever tried to get my mind round anything as brain-twisting as this.

Fortunately I do not have to deal with the problem of photos post WW2, although I did not so long ago publish a book believing that all pics pre 1 June 1957 were out of copyright. However, anything that came from a commercial source had been paid for by way of getting a good quality image.

[tsrwright]

Still like a dog with a bone on this one, Andy.

If the German copyright period of 50 years for my kind of photographs did/does apply is the Spanish situation c 1995 relevant?

I follow your argument about the directive maybe not being applicable in this regard but isn't it what the UK law says that counts? Or does the directive have some sort of overarching application. Ditto Berne Convention?

If the book is written and published in Australia which is where the publisher resides, contains UK, USA, German, Hungarian, French and Italian authored and located photographs and is printed and warehoused in the UK, from where it is distributed, what law would apply regarding the copyright in various photographs??

Many thanks

Terry

[AndyJ]

Hi Terry,

Didn't you think this was complicated enough already!

Let's define a couple of terms before looking at the details. The country of origin is where the work is first published and generally speaking it is law of the country of origin which governs the term of the copyright. Signatories to the Berne Convention (which include all the countries you mention, except that the USA did not join until 1 March 1989) agree to apply their domestic copyright protection to the works of citizens of other Berne signatory countries for works first published in their territory. The concept of 'first published' is quite fluid and can actually apply to the simultaneous publication in a number of countries where 'simultaneous' means within 30 days of the actual first publication event. In theory the term of least protection will apply in such cases. However the Berne Convention has not been updated to reflect the realities of the internet, or of works in digital form. All these countries must meet the minimum lifetime plus 50 years duration set down by the Convention, except where the work concerned is a photograph or a cinematic film, for which the minimum term is 25 years and 50 years from creation, respectively. Berne countries are free to apply longer terms if they wish, and as you know several European states individually did just that for a large part of the twentieth century prior to the EU Term Directive.

So if these photographs had not previously been published elsewhere (say in the native countries of the photographers concerned) then Australian law applicable at the time of publication there will govern the term of protection, as undoubtedly it does for the text. However, I suspect that many if not all of these photographs will have been first published long ago elsewhere, possibly making their actual countries of origin the nations you quote. If this is the case then you will need to look at the national laws of each of those European countries for the period when the photographs were created to arrive at the correct term in each case. The USA presents a unique issue.

The situation for photographs created by US photographers is even more complicated. Prior to 1976, the USA copyright regime was not Berne Convention compliant and required any work to be registered with the Library of Congress's Copyright Office and for the work to bear a valid copyright notice in order to gain copyright protection. Failure to do either of these things meant that copyright probably wouldn't apply as far as US citizens were concerned. There were special rules for non-US citizens whose work was first published in the USA, which meant that they didn't need to formally register their work with the copyright office, but that would not seem to be relevant here. The full US situation is too complicated to explain in detail here, and is made more so by the fact that the 1976 Copyright Act introduced a number of retro-active provisions regarding works from the earlier period, and, rather like the European experience, these terms were then increased by 20 years as a result of the 1998 Copyright Term Extension Act. The best way to approach photographs you believe to have been created by American photographers and first published in the USA is to use this chart to try and determine the copyright status of the photographs today.

I'm conscious that I've really only addressed the last part of your question in detail. As far as all European Union countries are concerned, the EU Term Directive is the definitive law, although as I tried to explain in my earlier answer, Article 10(2) of that Directive is far from clear about how it should be applied to, for instance, a work first published in a single EU member state in 1944. The Berne Convention is also over-arching, but as I hope I have explained above, its minimum term for photographs makes it pretty much irrelevant here, other than in the context of defining the country of origin.

[tsrwright]

Oh my goodness, but I did ask!

Just to be clear-ish and maybe finish off:

Was the EU directive 'law' that 'stood or stands above' UK law, just as an 'act' stands above a regulation or SI and does that still apply post Brexit?

You say,'The country of origin is where the work is first published and generally speaking it is law of the country of origin which governs the term of the copyright.' Presumably that would also, generally speaking, be the case for an unpublished photograph?

In practical terms, for a historical photograph that might unwittingly be published in a book in breach of copyright, would there be legal liability for any payment other than a 'reasonable' or 'commercial' fee for the kind of work and what it is published in?

Many thanks

PS Do you know what was the Spanish term for photographs 1.7.95?