Copyright status of an Edwardian photo

[MrsTwosheds]

Good evening guys

I have been pondering the possibility of stitching a banner/commemorative item relating to Women’s Suffrage in Crewe. Unfortunately, suffrage connections are a little thin on the ground here, but we do have one notable exception - Ada Nield Chew, (1870-1945) who wrote a number of articles for a local paper as a ‘Crewe Factory Girl’ in which she criticised factory working conditions for women and girls.

She wasn’t much photographed, but there is one photo that pops up on almost everything written about her. It has its own page on Wikipedia, under ‘File:Photo of Ada Nield Chew.jpg’. Unfortunately, there are all kinds of dire warnings of the ‘This photograph is copyrighted and is NOT under a free license’ variety, along with some justification for its use in a particular scholarly article. However, Wikipedia is unable to name the person or organisation who might actually own the copyright, or state when or where it was originally published. There seem to be a plethora of ‘unknown’s on the page.

I would be really grateful, please, guys, if someone could explain the implications of this (and why the photo, despite any evidence of ownership, is considered to be in copyright). Am a tad confused as many Edwardian photos are considered to be in the public domain?

If I were to use this image on my banner, would something leap out of the ether and smite me? Is a commemorative banner ‘fair use’ in the UK? Any use of the image would be purely…..er….commemorative and, as such, may be displayed locally as a heritage item, but not sold or considered to be of any pecuniary worth.

Any help, as always, gratefully received. Thank you so much.

[AndyJ]

Hi Sally,

Nice to hear from you again.

Since Ada Nield Chew died in 1945 the photograph must have been taken before that date, possibly 15 or 20 years before her death. This means that more than 70 years have elapsed since the taking on the pphotograph. Section 12(3) of the Copyright Designs and Patents Act 1988 tells us that the duration of copyright in works by anonymous artists is 70 years from the date the work was made, or if publication occurred later, 70 years from the date of publication. Fortunately we can ignore this last bit due to the law which applied at the time the photograph was made. That is to say, section 21 of the 1911 Copyright Act. This specified that copyright in a photograph would last for 50 years from the date the photograph was made, and this situation applied whether or not the photograph was published. The provisions of the 1911 Act continued to apply to photographs made before 1957 even after the 1956 Copyright Act came into effect. If I am right that the photograph was taken some years before her death at the age of 75 copyright, as determined by the 1911 Act, probably ended in the early 1980s. However even if the copyright term was still running in August 1989 when the current legislation (the CDPA 1988) came into effect, paragraph 12 (2)(c) of Schedule 1 of that Act also left the provisions of the 1911 and 1956 Acts unchanged.

Therefore we can be quite sure that this portrait is now out of copyright in the UK. The same would apply even if we knew the name of the photographer, due to the original 1911 Act provisions which were not dependent on the lifetime of the author of a photograph, unlike most other creative works.

I think the reason Wikipedia is uncertain on this point is that they judge copyright in the context of US law, and if you think the explanation above is complicated, you would be amazed how much more convoluted US copyright law is on the subject of older works! Wikipedia are just being ultra cautious.

[MrsTwosheds]

Aahhh…….that’s great news. Thank you so much as always, Andy.

I’ve never before encountered a claim that an item was most definitely within copyright, but such reticence in disclosing what that arrangement actually was. I wondered whether the family had placed restrictions on its use (although I can’t find any evidence of that).

I shall use the photo with gay abandon, and hope that the good lady would have approved.

You really are a treasure and the forum is the most wonderful resource. Thank you again for your speedy and erudite response!

All very best

Sally

[AndyJ]

Yes, you may well be right about the family wanting to set conditions on the use of the photograph. However if copyright has ended, as I say it has, then they have no real grounds for insisting on those conditions now.

[Victorian_reader]

Very interesting, as I have similar problems.
1. An 1890s photograph from a Victorian album bequeathed to a library. The curator would not let me re-photograph this for publication in a newsletter (despite believing my assurances that we would fully state ownership etc.) on the grounds that the photograph is not in the public domain. The photographer is currently unknown.

2. A different Victorian photograph (1867): a print is held at the National Portrait Gallery and another (identical print) is owned by a friend of mine, who is prepared to permit its use in the newsletter. But it too has never been published (and it does not appear as an image on the NPG’s website). The long-dead photographer is a known individual, an amateur not a professional. So this too is presumably not in the public domain, and not usable – is this really so?

Who, then, does have the right to allow such very old, unpublished, photographs to be used? Is the curator in my case (1) being over-cautious? And in my case (2), can we go ahead and use my friend's copy without worrying that the NPG will be coming after us?

Victorian_reader

[AndyJ]

Hi Victorian reader,

I think the curator is mistaken about the photograph. Perhaps the most tactful way of pointing this out to him, if you wish to do so, is to suggest he consults a book by Tim Padfield (former copyright advisor at the National Archives) entitled Copyright for Archivists and Records Managers.

But for your benefit this is probably a good opportunity to provide a more complete overview of how copyright applies to old photographs.

Any photograph made before 1911 was subject to the 1862 Fine Art Copyright Act in which the term of copyright was firmly fixed at the lifetime of author of the work and seven years following his death. This was the first time that photography, which had been in existence since the 1840s, was recognised in copyright law.

In 1911 Britain passed a new Copyright Act which, amongst other things, reflected the country's obligations under the most recent iteration of the international Berne Convention. This Act dealt with photographs in a stand-alone section, section 21, which said the following:

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.

There was simply no distinction given to whether or not the photograph had been published. This Act governed the treatment of all photographs made after 1 August 1912 and also applied to any photographs which were still in copyright due to the previous 1862 Act.

The 1956 Copyright Act was the first time that a distinction was made between published and unpublished photographs.. If the photograph had not been published within the author's lifetime then Section 3 (4)(b) of the 1956 Act applied:

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.

Obviously publication means authorised publication. Only the owner of the copyright can authorise publication. After the death of the photographer the owner of the copyright might well have been an heir or someone to whom the copyright had been transferred (by written assignment) during the photographer's lifetime. If the photographer was an employee and the photograph was produced in the course of his work (for instance, a press photographer) then the copyright would belong to his employer from the outset.

However none of the provisions of the 1956 Act applied retrospectively to photographs which had been made prior to 1 June 1957 (when the 1956 Act came into force).

Fortunately due to the regime in place prior to 1957, it is immaterial whether or not the identity of the photographer is known, since the term is based on when the photograph was made, rather than the author's lifetime.

[Victorian_reader]

Thank you very much, Andy -- most encouraging!
I see from my notes that the curator explicitly told me that copyright in unpublished photographs would only expire in 2039. This looks like a misunderstanding of what is said here under (b):
https://www.dacs.org.uk/knowledge-base/ ... hotographs
OPEN QUOTE
Photographs taken between 1 June 1957 and 31 July 1989
The length of copyright protection for photographs created in this period depends on whether or not they had been published as at 1 August 1989.
(a) Photographs published before 1 August 1989
Where the photographer died more than 20 years before publication, copyright will expire 50 years after first publication. In all other cases, copyright will expire 70 years after the death of the photographer.
(b) Photographs which remained unpublished as at 1 August 1989
Where the photographer died before 1 January 1969, copyright expires on 31 December 2039. In all other cases, copyright will expire 70 years after the death of the photographer. END QUOTE

So this 2039 date only applies to photos taken 1957 - 1989 [i.e. not to Victorian ones] and by photographers dying before 1969 [i.e. those people all get 1969-plus-70-years, irrespective of when they died; and after that the rest just get a straight 70 years].

It did seem extraordinary that a photographer who died in the latter 1800s could have copyright persisting for at least a century and a half, so I am very relieved that this is not the case. I will try tactfully suggesting the Padfield book!

Warmest thanks,
Victorian_reader

[AndyJ]

Hi v-r

That article on the DACS knowledge base looks as if it has been lifted directly from Tim Padfield's book which I mentioned previously.

Since you are really only interested in the Victorian photographs I don't want to go into more detail about the situation for more recent, post 1969, photographs because it gets extremely complicated. Suffice it to say, there are different rules for anonymous photographers (where obviously we can't know the date of their death), and also different rules for published and unpublished photograghs made during the period 1 January 1945 to 1 August 1989.

[Victorian_reader]

It's a minefield! I greatly appreciate your well-informed and prompt guidance through it.
With warm thanks,
Victorian_reader