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.
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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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Re: basic copyright

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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.
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cmyers212
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Re: basic copyright

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I am writing a book and want to use a photo in an insert. The photo was taken in the UK by a known author in the 1930's. The archivist who controls access to the photo tells me it is not in public domain because the author died in the 1960's, and copyright extends 70 years beyond his death. They want to charge me a lot of money for the right to publish the photo.

In reading this forum, my understanding is that the 1995 amendment ('Duration of Copyright and Rights in Performances Regulations 1995') does not apply to a photograph taken prior to 1946 (i.e. 50 years earlier). I have read the 1995 Regulations and cannot find where it says that - can someone point me to the specific wording in the 1995 Regulations that states that the 1911 law still applies to any photograph taken more than 50 years before 1995?
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Re: basic copyright

Post by AndyJ »

Hi and welcome to forum.

You are right that when the photograph was made in the 1930s the law which applied to it was section 21 of the 1911 Copyright Act, which said that copyright lasted for 50 years from the date the photograph was made. That copyright would still have been running in June 1957 when the 1956 Copyright Act came into effect. Paragraph 2 of Schedule 7 of that Act said that with respect to photographs which were already in existence (under the 1911 rules) nothing would change. This means that the copyright would have ended in the 1980s. Even if it was as late as August 1989 when the 1988 Copyright Designs and Patents Act came into force, again the provisions of paragrah 12 (2) (c) of Schedule 1 of that Act also didn't alter the pre-existing term for old photographs. Only photographs created after 1 August 1989 had their term based on the lifetime of the author, although as you note, the 1995 Copyright Term Regulations did have retrospective effective on anything which was still in copyright on 1 July 1995, even if that had come into existence under the 1911 Act provisions. A quick bit of maths shows that any photograph created from 1 January 1945 would have been caught by the 1995 Regulations. But the photograph you are interested in would have been out of copyright at that stage by, at least 5 years, and possibly as long as 14 years, so it would not have been caught up by the change.

Unfortunately a lot of archivists aren't aware of the special case concerning photographs and tend to assume that the rules are the same as apply to works of literature or other non-photographic artistic works etc, since their copyright term was based on the lifetime of the author even as far back as the 1911 Copyright Act. I'm not sure how much luck you will have in trying to convince the archivist that he's wrong!

The other thing which concerns me is that the archivist seems to be saying that the archive owns the copyright in the photograph. This would only be the case if the photographer had transferred the copyright using a written deed of assignment during his lifetime, or he had left the copyright to the archive in his will, along with the physical photographs themselves (see Section 90 of the CDPA 1988). If neither of these things occurred, then the copyright will be the property of the photographer's heirs and only they can grant you a licence to use the one you want. Therefore I would suggest you challenge the archive to provide proof that they are the current day copyright owner.
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cmyers212
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Re: basic copyright

Post by cmyers212 »

Thank-you, that was very clear. I have a follow-up question.

My book will be published in the United States and (hopefully) distributed worldwide. Does UK copyright law - for photographs taken in the UK by UK photographers - apply to the US (and other countries') copyright law? Or do I need to examine the copyright law in each country where the book will be published?
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Re: basic copyright

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Yes the basis for the copyright protection is the law of the country of origin, and the rule of the shorter term means that another country will usually only apply the same length of protection as would be available in the country of origin if this is shorter than that available in the second country. And other aspects of copyright law would also be based on the country of origin. For example, both the USA and UK have a stipulation that where employee produces a work in the course of his employment, the copyright in it is owned by the employer. The details about what count as employment vary slightly, but if there was a dispute about whether the employer was the owner, the law of the country of origin would be used to decide the issue. That is important because when the USA determines that the copyright is owned by the employer (due to the work for hire rules) then the term of protection becomes 95 years from the date the work was published*, and the author's lifetime is irrelevant, whereas under UK law the author's lifetime remains the determining factor for the copyright term. In that sort of scenario, the UK term would tend to be the longer one.
When your book is published in the USA the publisher should register it with the US Copyright Office and it will then qualify for the full protection of US law, including the fact that you would be entitled to statutory damages in the event that someone was found to have infringed your copyright.


* See Section 302(c) of the US 1976 Copyright Act
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cmyers212
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Re: basic copyright

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Thank-you again for the information on UK copyright for old photographs. I shared it with the UK archivist and she disagrees.

She shared this chart with me: https://cdn.nationalarchives.gov.uk/doc ... wchart.pdf

The chart indicates that for a known UK photographer (right side of chart) who took the photo prior to 1957, the copyright extends 70 years after his death. In addition, she referred me to a book: 'Copyright for Archivists and Records Managers' by Tim Padfield.

I welcome your thoughts on whether she is correct - and if not, why is the chart in the National Archives incorrect?
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Re: basic copyright

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The first thing to say is that Tim Padfield used to be the copyright advisor to the National Archives and he created that flow chart, so essentially the archivist is referring to the same source. Interestingly although Tim Padfield asserts this interpretation in his book (which is excellent by the way), he does not provide a citation to support it.

Mr Padfield and I have argued this point in the past. His reasoning is that, theoretcially, a photograph taken by a British photographer in the 1930s would also have been protected in say, France, where at that time the French law would have given it the term of the photographer's lifetime plus 50 years. Then because the copyright under French law would have been running on 1 July 1995 that would have invoked Article 10 (2) of the EU Copyright Term Directive (93/98/EEC of 29 October 1993) which says:
2. The terms 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.

I argue that the part of Article 10 (2) which says " ...protected in at least one Member State.." is very ambiguous. Since all members of the EU are also signatories to the Berne Convention, any work which originated in one EU member state is automatically protected in all the other member states, so why did the drafters say 'one state', unless perhaps they were referring to the originating state of the work. And prior to the EU Directive, members of the Berne Convention were bound by Article 7 Paragraph (8) of the Berne Convention which says
In any case, the term 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
Both the UK and France are signatories to the Berne Convention, and France's IP law did not contradict the Berne Convention provision quoted above. Therefore, had there been a copyright dispute over the photograph in France, the French courts would have looked to see the length of the term specified by UK law, and since it was shorter that the French term, used that to determine the term applicable in France.

Ultimately this issue has not been raised in a court case so we have no precedence to say which of us is right. And since the archivist can control access to the photograph, I guess what matters in your case is what she believes to be the correct answer. However don't forget my other point about the grounds on which the archive are claiming to hold the copyright. If the photographer has an heir, it is quite possible that they own the copyright and could grant you permission to use it.
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