I am working towards a future self-published book about the business history and products of a manufacturer and wholesaler/importer that closed in 1968. I have managed to find examples of its products in retail advertisements in old magazines and newspapers (where they are unattributed, and I am identifying them for the first time) and also in trade literature, from c.1933 to 1967. The older ads from the 1930s tend to contain illustrations / engravings of the products rather than real photographs, with a short text description of the item and its price.
I have several questions about using images / ads and whether I will need to request permission and / or pay to use them:
1. Will I be able to claim 'fair dealing' / 'fair use' in the sense that my book will be a piece of research, of an educational / academic nature, and I plan to make no profit from it (i.e. only sell it for the price it costs me to publish)?
2. If that is not possible, are the old ads in the public domain in any case, in the sense that they are a) typographical arrangements and b) the authors / artists are unknown? If not, are there any dates at the early end of the 1933-1967 range that could now be considered in the public domain?
3. If that isn't possible either, one ad that I particularly want to reproduce is from a 1935 ILN magazine. The word 'Copyright' is written at the bottom of the ad, beside the name of the retailer (which still exists today) - will that help or hinder me in being able to use that particular advert? Will the retailer's copyright have now expired, allowing me to use the image, or do I need to contact the company to request permission? Or does the ILN Picture Library's supposed 'ownership' of copyright take precedence? If I had an original copy of the old magazine, would that make a difference?
4. If none of the above are possible, is it possible to use only extracts of the vintage ads (i.e. cropped to show only the individual items produced by the company which is the subject of my book) without infringing copyright?
Many thanks in advance for much needed advice!
Copyright of UK vintage magazine & newspaper ads
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ljcybergal
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Re: Copyright of UK vintage magazine & newspaper ads
Hi ljcybergal,
The normal rule is that if the author of the work is anonymous you may make reasonable assumptions about when they may have died, and thus determine, approximately, when 70 years have elapsed after the presumed date of death (see Section 57 of the Copyright Designs and Patents Act 1988). So that doesn't really help you with the time frame you are talking about. If you know that a particular image was definitely a photograph, and that it would have been taken before 1945, then you can rely on the special provision in section 21 of the 1911 Copyright Act which provided that copyright in photographs only lasted for 50 years. However this did not apply to drawings or engravings, where the term was based on the artist's lifetime, plus 50 years after their death. This post mortem period was later extended to 70 years. The reason 1945 is the cutoff is because later EU legislation said that any photograph still in copyright in 1995 (ie 50 years from 1945) would henceforward be subject to the same lifetime plus 70 years terms which applied to other works. .
The next issue is whether one of the fair dealing exceptions might cover what you want to do. The one contained in section 30 for the purpose of criticism or review would appear to be the most appropriate, followed by the one you mentioned, section 29 for research and private study, although the latter is limited to non-commercial use which, even though you are not aiming to make a profit, would still exclude any publication for money. The review exception would only go so far in providing for what you want to do, in that the thing being quoted, in this case the illustration of the product, needs to be closely related to the subject matter of the review. In other words if you want comment on the product being depicted, then that would probably be acceptable, but just using the pictures as general illustrations of what the company manufactured might be straying too far from the purpose of the exception. If you rely on this exception, you will need to provide a credit to the source in each case.
Given that I have some doubts about how useful section 30 might be for your purposes, I think a better solution might be to apply for a series of orphan works licences for all the illustrations you want to use, or possibly just for the 1935 one from the Illustrated London News. Details of how to do this can be found here. Bear in mind that for this purpose, the fact that the lllustration appeared in a particular journal may be irrelevant if it was an advert. The journal would have no claim to copyright in the content within an advert which appeared on its pages. If the illustration formed part of the editorial content and it is clear from the context that the journal arranged for the illustration to be made, then the journal may well own the copyright in that image.
Cropping just an illustration itself won't really assist you much, as it will still be subject to copyright due to its comparatively young age, copyright-wise, other than in the special case of photographs mentioned above.
The normal rule is that if the author of the work is anonymous you may make reasonable assumptions about when they may have died, and thus determine, approximately, when 70 years have elapsed after the presumed date of death (see Section 57 of the Copyright Designs and Patents Act 1988). So that doesn't really help you with the time frame you are talking about. If you know that a particular image was definitely a photograph, and that it would have been taken before 1945, then you can rely on the special provision in section 21 of the 1911 Copyright Act which provided that copyright in photographs only lasted for 50 years. However this did not apply to drawings or engravings, where the term was based on the artist's lifetime, plus 50 years after their death. This post mortem period was later extended to 70 years. The reason 1945 is the cutoff is because later EU legislation said that any photograph still in copyright in 1995 (ie 50 years from 1945) would henceforward be subject to the same lifetime plus 70 years terms which applied to other works. .
The next issue is whether one of the fair dealing exceptions might cover what you want to do. The one contained in section 30 for the purpose of criticism or review would appear to be the most appropriate, followed by the one you mentioned, section 29 for research and private study, although the latter is limited to non-commercial use which, even though you are not aiming to make a profit, would still exclude any publication for money. The review exception would only go so far in providing for what you want to do, in that the thing being quoted, in this case the illustration of the product, needs to be closely related to the subject matter of the review. In other words if you want comment on the product being depicted, then that would probably be acceptable, but just using the pictures as general illustrations of what the company manufactured might be straying too far from the purpose of the exception. If you rely on this exception, you will need to provide a credit to the source in each case.
Given that I have some doubts about how useful section 30 might be for your purposes, I think a better solution might be to apply for a series of orphan works licences for all the illustrations you want to use, or possibly just for the 1935 one from the Illustrated London News. Details of how to do this can be found here. Bear in mind that for this purpose, the fact that the lllustration appeared in a particular journal may be irrelevant if it was an advert. The journal would have no claim to copyright in the content within an advert which appeared on its pages. If the illustration formed part of the editorial content and it is clear from the context that the journal arranged for the illustration to be made, then the journal may well own the copyright in that image.
Cropping just an illustration itself won't really assist you much, as it will still be subject to copyright due to its comparatively young age, copyright-wise, other than in the special case of photographs mentioned above.
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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ljcybergal
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Re: Copyright of UK vintage magazine & newspaper ads
Thanks for you help with this, it's much appreciated! 
Can you please confirm the following to clarify my understanding?
1. Section 30 *might* allow me to reproduce the ads or editorial gift features, in order to comment specifically on individual illustrated items whose manufacture was never identified, and which my extensive research elsewhere (including visiting the original factories in Germany and consulting the original pattern books) has now uncovered for the first time?
2. Ignoring Section 30, if I want to reproduce any editorial content from vintage journals, the copyright for that would indeed be held by the archive owner, e.g. the Mary Evans Picture Library which holds the ILN Archive, and so I would need to pay them a fee to use. But the exception would be any pre-1945 photos, which I should be be able to freely use (due to Section 21)?
3. The shorter 25-year copyright length of 'typographical arrangements' doesn't apply to vintage ads? (this would just be a useful point for me to understand generally)
4. Major cropping of images (e.g. cropping one item out of an ad that shows eight items) doesn't constitute sufficient alteration of the original to justify including in a book?
ORPHAN WORKS LICENCES
Re: the most straightforward solution you suggest, of applying for Orphan Works licences for ads, e.g. for the 1935 ad, how would this work in practice? The Mary Evans Picture Library holds the ILN Archive and states that payment must be made to use any of their images, many of which are ads. From what I've read, I understand that the assertion that many Libraries have recently made (including the British Library!) is that any images in their collections that they have digitised are effectively subject to a brand-new copyright! This has been hotly contested but does not yet have a legal precedent. But effectively, these Picture Libraries are charging access fees for anything that they hold, manage, and preserve, which I suppose is fair enough.
So are you suggesting that an Orphan Works licence would allow me to bypass having to pay a fee to the Mary Evans Library for use of the digital image of the ad? Or are you referring to an analog copy of the original 1935 ad, e.g. that I could hopefully track down and eventually purchase, or e.g. that I could view in person at the British Library, and take my own photo of?
Also, in the case of the 1935 ad in particular, is the fact that the company that placed the ad, which still exists today (Ciro of Bond Street), had a 'Copyright' notice placed at the bottom of it, have any relevance at all? Due to its age, if the ad is not yet in the Public Domain, would a useful option be to contact the company to simply ask for their permission? Or would the Orphan Works Licence you suggest be the simpler, easier route?
Many thanks again for your help!
Can you please confirm the following to clarify my understanding?1. Section 30 *might* allow me to reproduce the ads or editorial gift features, in order to comment specifically on individual illustrated items whose manufacture was never identified, and which my extensive research elsewhere (including visiting the original factories in Germany and consulting the original pattern books) has now uncovered for the first time?
2. Ignoring Section 30, if I want to reproduce any editorial content from vintage journals, the copyright for that would indeed be held by the archive owner, e.g. the Mary Evans Picture Library which holds the ILN Archive, and so I would need to pay them a fee to use. But the exception would be any pre-1945 photos, which I should be be able to freely use (due to Section 21)?
3. The shorter 25-year copyright length of 'typographical arrangements' doesn't apply to vintage ads? (this would just be a useful point for me to understand generally)
4. Major cropping of images (e.g. cropping one item out of an ad that shows eight items) doesn't constitute sufficient alteration of the original to justify including in a book?
ORPHAN WORKS LICENCES
Re: the most straightforward solution you suggest, of applying for Orphan Works licences for ads, e.g. for the 1935 ad, how would this work in practice? The Mary Evans Picture Library holds the ILN Archive and states that payment must be made to use any of their images, many of which are ads. From what I've read, I understand that the assertion that many Libraries have recently made (including the British Library!) is that any images in their collections that they have digitised are effectively subject to a brand-new copyright! This has been hotly contested but does not yet have a legal precedent. But effectively, these Picture Libraries are charging access fees for anything that they hold, manage, and preserve, which I suppose is fair enough.
So are you suggesting that an Orphan Works licence would allow me to bypass having to pay a fee to the Mary Evans Library for use of the digital image of the ad? Or are you referring to an analog copy of the original 1935 ad, e.g. that I could hopefully track down and eventually purchase, or e.g. that I could view in person at the British Library, and take my own photo of?
Also, in the case of the 1935 ad in particular, is the fact that the company that placed the ad, which still exists today (Ciro of Bond Street), had a 'Copyright' notice placed at the bottom of it, have any relevance at all? Due to its age, if the ad is not yet in the Public Domain, would a useful option be to contact the company to simply ask for their permission? Or would the Orphan Works Licence you suggest be the simpler, easier route?
Many thanks again for your help!
Re: Copyright of UK vintage magazine & newspaper ads
Hi ljcybergal,
Taking each of your questions in turn I will try and expand on my earlier answers:
1. Yes you seem to have understood that correctly. The point about the criticism/review exception in section 30 is that the critcisim or review must be of the work being copied or another copyright work; it can't be a discussion about a manufacturer because that would not be a copyright work.
2. Yes any editorial content would probably require a licence from the heirs to the publisher. The special case of photographs would not require a licence if it had definitely been produced prior to 1945 and you weren't taking a digital copy from a website such as the Mary Evans Picture Library. As you have noted, digital copies would not normally qualify for a new copyright, however this is not yet settled law, and I would expect a picture library to cause you problems by sending lots of threatening legal letters if they found out you were using one of their images, irrespective of the legal situation, and so I wouldn't recommend doing that if you want a quiet life.
3. You can forget about the 25 year typographical layout copyright. It won't still apply to anything within the timeframe you mentioned in your opening post. But yes if the advertiser had submitted their own text and pictures then the typogaphical layout copyright of the publisher would not apply to the advert.
4. If you crop out just the image from an advert and you are sure that the image is a photograph then the matter becomes a simple one of determining how old the photgraph is. However if you crop a line drawing or engraving from its surrounding text, you gain nothing as the duration of copyright in all the elements is the same, and unless it predates 1900 or thereabouts, that copyright is still likely to be running.
An orphan works licence can only ber obtained where the current owner of the copyright cannot be discovered through a diligent search. Obviously that would not apply to anything editorial in nature which you knew was held by the Mary Evans agency or a similar agency. However if you want to use an advert from the ILN, then because the publisher never owned the copyright in the advert, the Mary Evans Library has no rights over that specific content, and an orphan works licence might well be appropriate. Getting access to an original copy of the magazine and photographing it would resolve the issue of the Mary Evans Picture Library claiming copyright in the digital version of the archive. However it is unlikely that the British Library will actually let you have access to the original magazine, and in all probability they only offer you a digital scan or microfilm copy, which will probably come with some terms and conditions over the end use.
Taking each of your questions in turn I will try and expand on my earlier answers:
1. Yes you seem to have understood that correctly. The point about the criticism/review exception in section 30 is that the critcisim or review must be of the work being copied or another copyright work; it can't be a discussion about a manufacturer because that would not be a copyright work.
2. Yes any editorial content would probably require a licence from the heirs to the publisher. The special case of photographs would not require a licence if it had definitely been produced prior to 1945 and you weren't taking a digital copy from a website such as the Mary Evans Picture Library. As you have noted, digital copies would not normally qualify for a new copyright, however this is not yet settled law, and I would expect a picture library to cause you problems by sending lots of threatening legal letters if they found out you were using one of their images, irrespective of the legal situation, and so I wouldn't recommend doing that if you want a quiet life.
3. You can forget about the 25 year typographical layout copyright. It won't still apply to anything within the timeframe you mentioned in your opening post. But yes if the advertiser had submitted their own text and pictures then the typogaphical layout copyright of the publisher would not apply to the advert.
4. If you crop out just the image from an advert and you are sure that the image is a photograph then the matter becomes a simple one of determining how old the photgraph is. However if you crop a line drawing or engraving from its surrounding text, you gain nothing as the duration of copyright in all the elements is the same, and unless it predates 1900 or thereabouts, that copyright is still likely to be running.
An orphan works licence can only ber obtained where the current owner of the copyright cannot be discovered through a diligent search. Obviously that would not apply to anything editorial in nature which you knew was held by the Mary Evans agency or a similar agency. However if you want to use an advert from the ILN, then because the publisher never owned the copyright in the advert, the Mary Evans Library has no rights over that specific content, and an orphan works licence might well be appropriate. Getting access to an original copy of the magazine and photographing it would resolve the issue of the Mary Evans Picture Library claiming copyright in the digital version of the archive. However it is unlikely that the British Library will actually let you have access to the original magazine, and in all probability they only offer you a digital scan or microfilm copy, which will probably come with some terms and conditions over the end use.
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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ljcybergal
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Re: Copyright of UK vintage magazine & newspaper ads
Thanks again for your help AndyJ, very useful advice! Just a couple more questions, I promise!
RE: the one 1935 ad I mentioned, is there any point in me contacting the existing company that originally placed the ad to ask for permission, is that better / easier than applying for an Orphan Works licence for it? Or did the company never actually have ownership of the copyright either, and would contacting them form part of the Orphan Works licence application process in any case?
RE: the British Library, I've spent many visits there poring over old trade periodicals, containing a combination of editorial pieces and adverts, both with photos (many of which pre-date 1945). I've not consulted digital versions scanned by the Library, but taken my own photos of the pages (which started to be allowed a few years back). Prior to that, I had requested and paid for (not very good!) photocopies, which I've been gradually replacing with my own photos. But I remember reading somewhere that the BL claims it owns the 'copyright' to everything in its collections, which I don't understand. I get that they might claim copyright 'ownership' of the photocopies that they had made for me, but how could they assert that claim over photos that I've taken myself? Surely the copyright of the actual content lies only with the heirs to the publisher?
So, for any of the photos that I've taken at the British Library of photos that pre-date 1945 (whether they're in an article or an ad), can I assume that they're in the public domain and I'm therefore free to use them?
In addition, for any of the ads within these periodicals that I've already taken photos of at the British Library, since as you say, the publisher never owned the copyright, can I assume that I can apply for Orphan Works Licences for them as we've been discussing?
Many thanks again
RE: the one 1935 ad I mentioned, is there any point in me contacting the existing company that originally placed the ad to ask for permission, is that better / easier than applying for an Orphan Works licence for it? Or did the company never actually have ownership of the copyright either, and would contacting them form part of the Orphan Works licence application process in any case?
RE: the British Library, I've spent many visits there poring over old trade periodicals, containing a combination of editorial pieces and adverts, both with photos (many of which pre-date 1945). I've not consulted digital versions scanned by the Library, but taken my own photos of the pages (which started to be allowed a few years back). Prior to that, I had requested and paid for (not very good!) photocopies, which I've been gradually replacing with my own photos. But I remember reading somewhere that the BL claims it owns the 'copyright' to everything in its collections, which I don't understand. I get that they might claim copyright 'ownership' of the photocopies that they had made for me, but how could they assert that claim over photos that I've taken myself? Surely the copyright of the actual content lies only with the heirs to the publisher?
So, for any of the photos that I've taken at the British Library of photos that pre-date 1945 (whether they're in an article or an ad), can I assume that they're in the public domain and I'm therefore free to use them?
In addition, for any of the ads within these periodicals that I've already taken photos of at the British Library, since as you say, the publisher never owned the copyright, can I assume that I can apply for Orphan Works Licences for them as we've been discussing?
Many thanks again
Re: Copyright of UK vintage magazine & newspaper ads
Hi ljcybergal,
Sorry if I didn't make it clear that if you know of the likely heir to copyright, as in the case of the successor company and the 1935 ILN ad, then you would not be able to get an orphan works licence, so seeking permission is the best (and probably cheapest) route. If the company you contact say that they don't own the copyright and can't identify who might be the owner, then that would be good grounds for an orphan works licence.
The BL is what is known as a Deposit Library, that is to say there is a legal obligation on all publishers to provide the BL with a copy of each book or magazine edition etc that they publish. The BL therefore take their responsibility as the nation's archive pretty seriously and will want to ensure that the copyright rules are followed meticulously, otherwise it would undermine their position as a Deposit Library. However it is a mistake to say that in doing this (protecting the rights of others) they are claiming copyright themsleves in works they hold. Your best bet is to check with the BL conditions of entry and/or the staff there about any copy they provide. Usually you will be asked to sign a disclaimer about the future use of any copies they produce on your behalf, eg photocopies. However if you make your own photographic copy of an original work, and you are sure that the work is out of copyright (for instance a pre-1945 photograph) or that one of the exceptions applies, then you are free to use them in your book.
And yes you can go ahead on the basis that the adverts have a copyright which is entirely separate from that owned by the magazine publishers, and assuming that after a diligent search no current day owner of the copyright can be found, then an orphan works licence should be applicable. You can check with the staff of the IPO when making an application, about what they would deem to be a diligent search in your particular case.
Sorry if I didn't make it clear that if you know of the likely heir to copyright, as in the case of the successor company and the 1935 ILN ad, then you would not be able to get an orphan works licence, so seeking permission is the best (and probably cheapest) route. If the company you contact say that they don't own the copyright and can't identify who might be the owner, then that would be good grounds for an orphan works licence.
The BL is what is known as a Deposit Library, that is to say there is a legal obligation on all publishers to provide the BL with a copy of each book or magazine edition etc that they publish. The BL therefore take their responsibility as the nation's archive pretty seriously and will want to ensure that the copyright rules are followed meticulously, otherwise it would undermine their position as a Deposit Library. However it is a mistake to say that in doing this (protecting the rights of others) they are claiming copyright themsleves in works they hold. Your best bet is to check with the BL conditions of entry and/or the staff there about any copy they provide. Usually you will be asked to sign a disclaimer about the future use of any copies they produce on your behalf, eg photocopies. However if you make your own photographic copy of an original work, and you are sure that the work is out of copyright (for instance a pre-1945 photograph) or that one of the exceptions applies, then you are free to use them in your book.
And yes you can go ahead on the basis that the adverts have a copyright which is entirely separate from that owned by the magazine publishers, and assuming that after a diligent search no current day owner of the copyright can be found, then an orphan works licence should be applicable. You can check with the staff of the IPO when making an application, about what they would deem to be a diligent search in your particular case.
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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ljcybergal
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Re: Copyright of UK vintage magazine & newspaper ads
Thanks so much again for your help AndyJ, I feel so much more knowledgeable (and confident!), your advice has been so useful. This site is a godsend for those like myself who have been struggling to understand all of the copyright complexities in the digital age, what a minefield! 
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Nick Cooper
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Re: Copyright of UK vintage magazine & newspaper ads
I would think that the absolute first port of call would be the successor companies for the products advertised, and in most cases they would probably be happy to approve neutral use for no charge. Some companies maintain their own historical archives, and so may be able to supply better versions of the adverts, or additional information about them.
As regards sourcing, as noted, the validly of blanket copyright claims by archives is generally untested, but certainly in the case of adverts in the ILN, the magazine itself would have never owned them. Original copies of the ILN are not difficult to come by, so reproducing direct from one cuts of the possibility of action based on putative ownership of the digital archive version.
It should also be noted that, even beyond adverts, the ILN itself is unlikely to have been the copyright owner of many photographs it reproduced.
As regards sourcing, as noted, the validly of blanket copyright claims by archives is generally untested, but certainly in the case of adverts in the ILN, the magazine itself would have never owned them. Original copies of the ILN are not difficult to come by, so reproducing direct from one cuts of the possibility of action based on putative ownership of the digital archive version.
It should also be noted that, even beyond adverts, the ILN itself is unlikely to have been the copyright owner of many photographs it reproduced.