Publishing Photos From Eighty-Three Year Old Brochure

'Is it legal', 'can I do this' type questions and discussions.
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Bill Scott
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Publishing Photos From Eighty-Three Year Old Brochure

Post by Bill Scott » Sat Feb 05, 2011 6:20 pm

I want to publish some photos out of a 1928 company brochure. The photographer is unknown and the company went into liquidation in 1992.
As I understand the law, commissioned photos prior to 1988 were the copyright of the commissioner and not the photographer. Also the copyright lasted fifty years and would have expired in 1978. It is possible that it might have been revived in 1996 to 70 years, but that means it would have expired in 1998. Is this right? :?:

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AndyJ
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Post by AndyJ » Tue Feb 08, 2011 5:42 pm

Hi Bill,
I guess that all your recent questions are related to your project. And by now I think you will have seen my comments on your other posts. Here we are dealing with photographs which have been published. At the time they were published the applicable law was the 1911 Copyright Act. This Act was passed following Britain’s signing of the 1908 Berlin Revision of the Berne Convention. For the first time separate areas of creative activity – the written word, dramatic works, musical works, works of art, registerable designs and sound recordings – were all brought together in one Act and lumped together under the generic heading of copyright. However photographs were still treated separately (in s.21) from other copyright works as far calculating the copyright term was concerned.
Here is what s.21 said:
21. 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.
This is an exception to the general provision (contained in s.3 of the Act) that the term was 50 years from the death of the author.
So returning to your specific question, it is clear that the actual photographs were made in or before 1928, and so copyright in them expired no later than 1979. But from what you say it sounds like you do not have access to the original prints and that you are proposing to reproduce the pictures from the actual brochure. That brings into play the copyright in the brochure, which is covered by the s.3 term. The copyright owner is almost certainly the company which commissioned the work, but the author (whose lifespan plus 50 years determines the term in this case) is the person who wrote and assembled the brochure. I have no doubt that the identity of this person is lost in the mist of time. Unfortunately the Act does not specify how the term should be calculated in such circumstances, and in the absence of any secondary legislation or caselaw which might have resolved that point, I think it is necessary to take a pragmatic view, and apply the same provisions as the 1956 Copyright Act, which after all came into force during what was probably the original term of the copyright. That is, to take the date of publication as the starting point for the 50 year term, which provides the same result as when s.21 of the 1911 Act as applied.
In other words, I would be pretty confident that copyright in the pictures expired in1979.
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

Bill Scott
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Post by Bill Scott » Tue Feb 08, 2011 7:39 pm

Hi Andy

Yes it is the same project but I separated the questions because I thought they would raise different issues.

Thanks for the very thorough reply. I never thought about the author of the brochure, but I suppose a brochure is just like a book, except that the author is rarely identified and often it is a group effort.

When I started this project, i didn't think that copyright would be a big issue, since the photos were so old. However, I am now finding out just how complex this area of law is.

Thanks again for your help

Regards

Bill

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Post by Bill Scott » Thu Mar 24, 2011 6:52 am

All in a good cause. If you go to http://www.buttercupdairycompany.co.uk/ you will see what I mean.

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AndyJ
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Post by AndyJ » Thu Mar 24, 2011 8:08 am

Hi Bill,
Good to see your project get off the ground. I am now reminded that the Buttercup Dairy Company were the subject of a trademark/passing-off test case back at the beginning of the last century. They won an injunction against a company which wanted to use the name Buttercup Margarine. Details here: Ewing v Buttercup
Andy J
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

Bill Scott
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Post by Bill Scott » Thu Mar 24, 2011 12:40 pm

Hi Andy.

Yes. It is a famous case.

This is a good story of a man who became wealthy through his business skills and then gave it away quietly in his final ambition to die a poor man.

There are some great pictures hence my concern to publish them and sort out copyright.

Bill

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