Selling Old Images

'Is it legal', 'can I do this' type questions and discussions.
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Selling Old Images

Post by emxiie »

I am thinking about selling old illustrations. There are many images out of copyright which have been scanned/uploaded to the internet. I am wondering if I am free to use this material or whether the person/organisation who uploaded the image has copyright over the scanned image? I know with some stock image companies you are unable to sell unaltered copies of an image, but I am not sure of this is due to licence or copyright or both.
If the image has a CCO licence am I able to use it freely?

Finally, I own some antique books with illustrations. I am pretty sure they are out of copyright, so am I able to reproduce and sell these images as I own the original source item?

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Re: Selling Old Images

Post by AndyJ »

Hi emxiie,

Unfortunately there's no simple answer to your question. Which is another way of saying it depends...

If someone has released an image under a CC0 licence, then provided they are the lawful owner of any copyright, then you could re-sell the images but you would need to attach the same CC0 licence. However when it comes to original images which should be out of copyright due to their age (ie you are sure that author/artist died more than 70 years ago) republishing them would be OK, but that doesn't automatically mean that any digital copy of an out-of-copyright image you may find is automatically in the public domain. If the person who made the digital reproduction can be said to have expressed their personality in the way that they carried out the reproduction process, they may be entitled to copyright in the resulting digital image. This is a very contentious area of the law which hasn't really been tested sufficiently in the courts for us to have any certainty on where the boundaries lie. You will find many intermediaries, such as museums and art galleries, claiming copyright in their reproduction digital copies of original works which are undoubtedly out of copyright.

And then there is the special group of works which were previously unpublished, but which have recently been published with permission from the modern day of the copyright owner (usually a descendant of the artist). These can be subject to a 25 year publication right which is similar to copyright in many aspects. A bit of research will usually indicate which images might fall into this category.

You mention stock agencies and licences and copyright. A licence can mean one of two things in this context: either it is a form of permission from the copyright owner for the licensee to use the image in a particular way, or it may just amount to permission to access a work over which the owner has control. This latter category might apply to paintings in an art gallery or museum for example, where copyright in the painting has long since ceased.

If you own an old book of illustrations which you know to be out of copyright, then going ahead and making you own scans or photographic reproductions of the illustrations would permissible as long as the book itself was published at least 25 years ago. This is because of something called publisher's copyright* in the typographical layout of an edition of an book or magazine etc.

*Although they have similar names and last for the same length of time, Publication Right and Publisher's Right have different origins and are not the same thing in practice.
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
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