Public Domain in USA but Copyright in UK - if modified and sent from US to UK- can I use it freely?

[Jules57]

Hi

If an newspaper image from the 1800s (1840-1860) is in the public domain in the US but is covered by licence ownership in the UK and someone in the US downloads the image, digitally reverses it or adjusts it and then sends the amended image it to a friend in the UK - can the UK resident then use the 'new' image, created in the US by one's friend, freely as it would now comprise a different digital image than that still under licence in the UK?

[CopyrightAid]

By your description, this is an adaptation, not a 'new' work. So I think this would be regarded as a derivative work and any existing underlying rights in the original would remain.

[Jules57]

Many Thanks

Not doubting at all what you say but I really do want to be clear, . So please forgive the follow up.

if it is 'freely available' in the US and can be modified however the person in the US wishes - even to form a collage of similar freely available prints isn't that their work and freely/ independently created?

The bottom line is this is a 2" sketch drawn in the UK in 1850 hidden among the pages of a magazine and no one else is bothered with it..the artist and his copyright long long ago expired and yet because so random company can purchase the magazines the take over the rights to the image and charge in the UK for its use when it is free in the USA.

This isn't a case of the artist having HIS rights infringed but a company that can afford to buy up magazines and then charge in the UK for a small sketch that is free elsewhere in the world!

It feels like extortion as opposed to 'copyright infringement' and I'd rather donate money being asked for to charity than to the company and hence THAT is why i am looking to see if there is any form of 'loophole' allowing me to use the image freely. So the only one losing out would be the corporate company who cares nothing about the image or it being seen (which is what the artist would have wanted) but simply wanting money because they own the rights to the magazine in the UK!

Not wanting to do anything illegal but wanting to try and use this old image and benefit a charity instead of a corporation

[AndyJ]

Hi Jules,

I think the fundamental issue here is that you are assuming that the company's claim to the UK copyright in the image is valid. From what you have said this seems very unlikely. There is only one situation in which an image created in the 1800s could be in copyright today, and that is because it had never been legally published. Since you say it has been published, it would appear that is not the case. Similarly, a magazine, provided it was published more than 25 years ago, has no independent copyright protection as a compilation. The place of publication makes no difference to the legal situation.
I assume that what is involved here is a spurious claim to copyright in the digitized version of the magazine. However just scanning or digitizing the magazine contents does not create a new copyright, so I think you can probably ignore this company's claim that it owns some copyright in this image, either in its original or adapted form. If you want some more support for this assertion see Section 5 of this Copyright Notice published by the UK Intellectual Property Office.

[Jules57]

Andy

Many thanks and in searching this site I see you have greatly helped others previously and do not mind people coming back for clarification- so I hope that remains the case here.

From your replies to others, an example of what I am posting about is the Mary Evans Library licencing - which i see you have specifically replied to others about.

I have previously paid £30 to the MEL for an image from the Illustrated London News 1850, only then to find that the same image was in the public domain in the United States. I asked myself why I had had to pay £30 when elsewhere the copyright of the original artist had long since expired?

I feel that I have been 'had' as that particular illustrator had long since died and yet I was paying for something that took very little of their time and was not inconveniencing them in any way.

The adage of "Once bitten, Twice shy" applies and I feel that I simply wish to honour the Victorian illustrator of the work and the magazine, and make a donation to charity, as opposed to obtaining some flimsy licence simply because a company has bought old images and now wants to charge for them.

I have therefore found a Victorian publication, and as per Mary Evans Library, it is apparently licenced in the UK and I am being asked to pay for the image but, as per my original image, it is freely available and in the Public Domain of the USA - irrespective of what the UK(?) licencing company states.

I have a friend in the US who can obtain this image for me and send it to me saying I can do whatever I wish. Can then the UK company who imposes a licence in the UK prosecute me when I can prove that I obtained the image freely elsewhere but am using it here?

Thanks and sorry to be long-winded!

[AndyJ]

Hi Jules,

There are numerous companies who think that just because they bought some rights many years ago this entitles them to live off the licensing profits for evermore simply by claiming copyright exists when it clearly no longer does. Many museums and art galleries do the same but there they actually comtrol access to the items in their collections so it makes it easier to extract payment before parting with a digital reproduction. Unfortunately it is not illegal to do this, and its success depends on the public assuming that the copyright notice is genuine.

The classic example was that for many years Warner Music insisted that they owned the rights to the 1893 song Happy Birthday (the one we all sing at home and in restaurants). Very few people had the kind of money required to challenge Warners in court, but finally someone did and the result is that that particular scam is now dead. However many zombie makers live on. My particular bugbears are MEL and Francis Frith, but there are legions of others.

So, rant over.Yes if you can obtain a copy of the image via a source in the USA which doesn't have any visible or embedded copyright notice from MEL, you can use it without any problem. MEL would have to prove that your digital image was the same as theirs, and also that they had copyright in their image, but because your image would have been digitized by a different person using a different process, the 'signature' of the two images (known in technical terms as its hash) would be different, even though outwardly they might look somewhat similar since they are both based on the same original image.

[Jules57]

Excellent and many many thanks (as other people have previously sent to you.)
Succinct, clear, (patient) and very very helpful.
Words are all I have, but they don't seem enough

[Nick Cooper]

As has been noted before, many libraries are really only charging for supplying an image the customer wants from their collection, regardless of whether it is in copyright or not, or whether they genuinely own or are a licence-holder for that image. They count on themselves being the "only" source of the image, and thus can tie up the licencing agreement in a manner that gives the illusion of ownership. With something sourced from a magazine, one possible workaround is to simply obtain an original copy of that issue - or the relevant page - and scan it yourself.