Copyright status of a public domain image used by a commercial company

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MrsTwosheds
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Copyright status of a public domain image used by a commercial company

Post by MrsTwosheds »

Good afternoon all

I have a query if I may, please? I have managed to confuse myself utterly with this one, and am changing my mind about the copyright status on an hourly basis.

I am a big fan of Graphics Fairy (an online resource which has a library of thousands of copyright free clip art images for general use). It is based in the US, but has a worldwide fan base and membership. I have found on this site (for my current women’s suffrage project) a lovely image - a line drawing of a Victorian woman holding a sign. The text beneath the image describes it as an ‘antique trade card’, but the original advertisement/wording has been removed by the site holder to enable the user to insert his or her own message. There is also an image of the original trade card version, which is charming and appears to be the real thing.

So far so good, I think - this is perfect! However, in my vague meanderings around the web, I notice that Spoonflower (a huge US manufacturer of novelty fabric) has incorporated the exact image - with a few extra twirly floral bits and pieces - in one of their fabrics. To make matters worse (for me), they have a women’s rights message in the text space.

My question is this. Spoonflower and I would both be using the same public domain image (I’m fairly sure about this, as there is a tiny printing error in the brow of said woman which appears both in the Graphics Fairy website and the fabric), so does the manufacturer’s use of this image preclude mine? Can I still use it if I have a message unrelated to women’s rights? The image is still on the Graphics Fairy website. The date it appeared on the website isn’t recorded, though, so I don’t know whether it predates the fabric.

Would be so grateful for any help with this, please, before I drive myself to distraction. Huge thanks 😊
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AndyJ
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Re: Copyright status of a public domain image used by a commercial company

Post by AndyJ »

Hi Sally,

As ever you demonstrate admirable caution! As the owner of Graphics Fairy says in her terms and conditions, "I can’t guarantee that your use of the images that are provided through this blog or my other websites will not infringe on the copyrights or intellectual property rights of others". One of the reasons for being cautious is that she uses the American definition of public domain, namely that anything published before 1923 (actually it's 1928 now - it's 95 years back from the start of current year) is fair game. The problem with that is that it doesn't apply to works which were created outside the USA. Since it's a fair bet that a picture of a British suffragette originated in Britain, British copyright will apply to it, outside the USA.

As I think you are well aware, if the original image had been a photograph which was made in Britain, copyright in it would have lasted for 50 years from its creation and then ended. However you say that this is a line drawing, and so it doesn't fall within the special treatment afforded to photographs in the 1911 Copyright Act. Copyright in an artwork lasted for 50 years from the end of the year of death of the artist. Unlike a photograph which we might assume was taken contemporaneously in the Edwardian period (the Women's Social and Political Union wasn't formed until 1903), a line drawing of a suffragette could have been created at any time from the start of the twentieth century right up to the present day, so we have no means of knowing if or when the artist may have died, and hence whether or not the image might be in the public domain.

So the issue is rather less to do with the use of the same image by Spoonflower, and more to do with the provenance of the original image itself. That said, if Spoonflower have used an image taken from Graphics Fairy then you would not be infringing Spoonflower's rights by using the same image, assuming that you didn't incorporate the 'extra twirly floral bits and pieces'. I haven't tried too hard but I couldn't find the image in question, unless it's the one entitled Suffragettes on Sepia on the Spoonflower website. Not that it matters, since we are talking about principles rather than the specifics of the actual image.

All I can suggest is that you do a bit more searching to see if you can find where the unaltered image originated. If you can satisfy yourself that it dates from before about 1918, and it is by an anonymous artist, then I think it is not unreasonable to assume it is now in the public domain here in Britain as it would be over 105 years old (that is to say well over 70 years from the date of first publication, based on section 12(3) of the CPDA). This sort of back of an envelope calculation also satisfies the original lifetime plus 50 years term set by the 1911 Copyright Act assuming the artist was in his mid thirties at the time the work was created and lived to be 70 years old.
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
MrsTwosheds
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Re: Copyright status of a public domain image used by a commercial company

Post by MrsTwosheds »

Hi Andy

Huge thanks for this, as ever.

I’m fairly certain it’s quite an ancient piece of art and originated in the US - the Graphics Fairy includes the original image (the one that the ‘doctored’ one was created from) and it appears to be a really old trade advertising card (from a fruit and confectionery dealer, by the name of Bumpus, from Maine), and the style is technically Victorian, rather than Edwardian. I have tried to insert the image, but my technology skills are roughly on a par with those of our dog.

The Spoonflower fabric is called ‘Women Voters Black Toile Pillow’, and pops up readily on Google. The Graphics Fairy one is identical in every respect but is just the female figure with a blank text box - it is offered as a ‘Victorian Women with Signs - Labels’. I shall follow your very excellent advice, and try to find out a little more about Mr Bumpus, I think!

Thank you again, Andy, for your erudite and speedy response. You’re a marvel 😁

All best

Sally
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AndyJ
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Re: Copyright status of a public domain image used by a commercial company

Post by AndyJ »

Hi Sally,

Thanks for the update. If you are pretty sure that the author of this image is American, then you can also be pretty sure that under the US rules, it is in the public domain. I'm afraid I just assumed that because your project is about British suffragettes, I also assumed this image was also, ignoring the fact that America had its own suffragist movement around the same period. To that end Mr Bumpus is probably a red herring (if that's possible for a fruiterer and confectioner).
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
MrsTwosheds
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Re: Copyright status of a public domain image used by a commercial company

Post by MrsTwosheds »

Haha - I actually laughed out loud at that!

Thanks again, Andy - I’m fairly sure that the image is American, as most of the images on this site are (and Mr Bumpus certainly is/was). I shall press on with it (although I will avoid making the text content similar to Spoonflower’s).

Hugely grateful for all of your help as always. Thank you.
JennyH
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Re: Copyright status of a public domain image used by a commercial company

Post by JennyH »

@MrsTwosheds something I’m doing to help with these sorts of questions is to long press or right click on an image and then select ‘Search Google for this image’, sometimes you then have to click something about other sizes. This quite often gives you other information about the specific art from different sources, or sometimes conflicting information about what the image is. For example it might exist on Wikimedia or in a museum. It’s particularly useful if you just come across an image you like and want to do some sleuthing to see if it’s public domain.

If it’s public domain it doesn’t affect whether you can also use it, and if lots of people are using it they’re probably convinced it is public domain (though could be wrong for the UK of course). But if loads of people are using the same image it might impact if you want to use it - for my purposes it probably would.

I also like the Graphics Fairy and have used the images on my blog quite a bit in the past. I’m now using Picryl to find images for a commercial context, they tend to claim that their images are free from copyright restrictions but if I dig a bit, by finding the image elsewhere, I’m not always convinced. One of the tricky things is the copyright of the photo of the art, for American photos this doesn’t matter, but everywhere else it might. I don’t know if there’s some protection if you download the photo of the public domain art from a site which says there’s no copyright restrictions on the image? Is it an ok assumption that an American took the photo for the American website?
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