basic copyright

Tracing copyright owners and asking permission.
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spik
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basic copyright

Post by spik »

For someone like me who gets very confused or cannot understand the legal rights, permissions or law. Can it be as simple as asking...
How far back can I go to apply the understanding that I can use a photograph in a book which I am to get published/printed ('print on demand') with Amazon for sale?
ie) I may be able to reproduce a photo from the 1930's but how near to today can I still do this?

My research/content within my books are of Ice Hockey. I have recently written and have on sale one called 'UK Ice Hockey: It's History and competition winners on there. It's my fifth book but the next would like to include older pictures.
But apart from getting 'known' photographers permission I'm not sure how far back I have to go before I HAVE to ask permission.

Foe example, I was made aware that the 'Hockey Hall of Fame' suggests it owns old material from history and people should ask for permission to use old historical photos. ie) The governing body here made comment that THEY had gained the right to include old photos from history for me. But is that right?

They didn't take the photos, the photos owned/taken by people all those years ago are long deceased. How come they say they are the rightful protectors of these pictures?

I'm just trying to stay safe as regards reproducing anything be it photo, illustration/cartoon etc
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AndyJ
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Re: basic copyright

Post by AndyJ »

Hi spik,

There are often two different factors involved with old photographs: copyright and access. As your question suggests, people or organisations who can control the access of others to original photographs etc often dress that up as being due to copyright, firstly because legally there is nothing to stop them doing so and secondly because it is a simpler way to explain that they wish to limit the rights of others.

Prior to a change in the law in 1989 British copyright law treated photographs as a special case, based on the 1911 Copyright Act which said that copyright in a photograph lasted for 50 years from when it was made (ie when the photograph was taken). It didn't matter whether or not the photograph was subsequently published. This made it easy to see that a photograph made in, for instance, 1935 came out of copyright on the 1st January 1986. Photographs made after 31 July 1989 became subject to the same term of copyright as other creative works such as paintings or works of literature. Again, this was a simple cutoff. However in 1995 new EU law came into force and had retrospective effect on works which were still in copyright on 1 January 1995. These photographs now became subject to the new term which lasts for the lifetime of the photographer plus 70 years from the end of the year in which he or she died. From this you can see that we need to count back 50 years from January 1995 to see which photographs already in existence would be affected by this change. Thus we know that any photograph made before 1 January 1945 will be subject to the old 50 year rule, and anything from 1 January 1945 onwards comes under the new rule of lifetime plus 70 years.

Technically this only applies to photographs made in the UK but many other nations had similarly reduced periods of protection for photographs which were seen as less worthy of the full protection given to other creative works. The situation internationally was then governed by something called the Berne Convention which said that the minimum protection for photographs was to be 25 years from the date they were made.

When we look at the access issue, you can see that notwithstanding the fact that a particular photograph is no longer protected by copyright, if the person who owns the physical object won't allow you access to it in order to copy it, that presents a different challenge. You need their permission unless of course they have published the photograph in a form which makes it possible to obtain a reasonable copy which you can use. Many archives, museums and libraries use this right of access to make money and so they guard it carefully, often only putting low resolution digital versions of works they hold on their websites, which are usually of too poor a quality for commercial use, say in a book. They then demand fees (often referred to as licence fees) to release higher resolution versions.

As the Hockey Hall of Fame appears to be an American site they will naturally be operating under US copyright law. This differs substantially from UK law where older, pre-1978 photographs are concerned. The old US system required each individual work (such as a photograph) to be registered with the US Copyright Office after which it gained 28 years worth of copyright and this could be extended to 56 years if re-registration took place at the correct time. Failure to register a work or to publish it without a suitable copyright notice meant that no copyright existed for that work. The legacy of this law was that when the USA finally decided to join the Berne Convention in 1989 they had to decide how treat their existing works in order to comply with the treaty rules.This led to an immensely complicated formula, depending on when or even if, a work had been registered, the registration had been renewed etc, in order to calculate what period of protection, if any, applied. One simple over-arching rule did emerge: any work published before 1978 (whether it had been registered or not) would have no more than 95 years of protection and any unpublished work got 120 years of protection. This means that today any photograph published in the USA before 1927 is now in the public domain (ie free of copyright). In addition there are a lot of other works which because they were published without the correct copyright notice or failed to comply with some other formality, are also in the public domain even though they were published later than 1927. Obviously the same remarks about access apply as they do in the UK.

I hope this clarifies things a bit.
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
spacecadet
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Re: basic copyright

Post by spacecadet »

Would a photographer's input be useful?
I think you are safe till after the war. I certainly wouldn't use an image first published in the UK after 1956 without permission. In other words, I would rely on the 1911 Act, with a 50-year term from publication, rather than the death of the photographer, as per the 1956 Act. An image published in 1957 taken by a photographer born in 1920 could well be in copyright for decades yet. I wouldn't take the chance.
Whether the Hockey Hall of Fame (which is Canadian, I think) actually owns the rights to images it claims to is another matter- of course merely owning a print isn't enough.
Beware of images found on the internet, as well. I would probably only publish images of which I owned actual copies. Of course, if you can contact a descendant and get their blessing, do.
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AndyJ
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Re: basic copyright

Post by AndyJ »

spacecadet wrote: Wed Apr 13, 2022 4:01 pm I think you are safe till after the war. I certainly wouldn't use an image first published in the UK after 1956 without permission. In other words, I would rely on the 1911 Act, with a 50-year term from publication, rather than the death of the photographer, as per the 1956 Act.
I'm afraid you are wrong about what the 1956 Act says. The relevant part is section 3, subsection (4)(b):
(4) Subject to the last preceding subsection, copyright subsisting in a work by virtue of this section shall continue to subsist until the end of the period of fifty years from the end of the calendar year in which the author died, and shall then expire:

Provided that—

(a) in the case of an engraving, if before the death of the author the engraving had not been published, the copyright shall continue to subsist until the end of the period of fifty years from the end of the calendar year in which it is first published;

(b) the copyright in a photograph shall continue to subsist until the end of the period of fifty years from the end of the calendar year in which the photograph is first published, and shall then expire.
The term for copyright in photographs and engravings did not fall in line with other artistic works until the 1988 Copyright Designs and Patents Act.

In fact the rule of thumb is as I have described it earlier in this thread: any photograph made in the UK prior to 1 January 1945 (not the end of the Second World War) is subject to the term set out in section 21 of the 1911 Copyright Act, and that term was 50 years from the end of the year in which the photograph was made (not published, as you state). This continued to be the term for photographs made before 1 June 1957, when the provisions of the 1956 Act shown above came into force. This was the first time that the date of publication became relevant. And this state of affairs remained the case until 1995 when the EU Copyright Term Directive kicked in, but by then all photographic works made before 1 January 1945 would have ceased to be protected and so were not subject to the new rules.

Your other advice about being cautious with any photograph found on the internet is entirely sound. However your statement that "I would probably only publish images of which I owned actual copies" is not good advice. Ownership of a photograph provides absolutely no rights to copy, distribute or otherwise make it available to the public, unless you are reasonably certain that the image concerned is not longer protected by copyright in the relevant jurisdiction, in which case ownership is no longer relevant. I'm sure that's not what you meant, as clearly if you meant that ownership of the physical object was sufficient, any of your clients would able to exploit your photographs without needing to get a licence from you first. If you do weddings, or indeed other forms of social photography I'm sure you are aware that many of your clients do believe they can just get extra copies made for aunty Doris when and where they like.
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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