I new to this site and I think I've found a truely helpful site. I want to break into online publishing and copyright law, laws, look like quicksand.
I want to write artilces on WW1, which celebrates its centenary next year. My question is WW1 photos. Obviously these must be, or very close to 100 years old.
I'm guessing (I know that's not good idea for copyright) that these images are out of copyright, as the 1911 mentions the owner of the equipement was normally the copyright owner and that the copyright would have lasted 50/70 years from the year of publication.
But organiisations that hold WW1 images are highly protective of their stock. But can I copy one of their images and be safe?
World War 1 - photos
Hi fabben,
There are several things to consider here.
When looking at the length of term for copyright (which as you seem to have discovered already, is not that simple), you also need to consider whether a later Copyright Act may have changed things with respect to works which were created many years before, but still remain under copyright protection at the time of the new legislation. So taking the example of a photograph created at the start of WW1 ie in 1914, copyright would run to the end of 1964 under the 1911 rules, but as there was a new Copyright Act in 1956, you need to see what effect if any the new provisions may have had.
The next consideration is whether the photograph was published or not because different rules apply to published and unpublished works. In this context, a photograph residing in an archive may well not have been published in the sense that the law requires, and if it remains unpublished today, its copyright term has not technically started.
The next consideration is owner of the copyright. You are right to point out that the 1911 Act (section 21) grants the right of copyright to the owner of the negative from which the photograph is derived. At first glance this might appear to be the photographer, but if he was employed by a newspaper or picture agency, then the company will be the first owner of copyright. But there is another category which rarely gets discussed here, but which is likely to include many of the photographs in which you are interested, namely Crown copyright.
Fortunately although the 1956 Act did come into force before the expiry of the copyright in all photographs from 1914 onwards, where they were published photographs, the 1956 Act did not alter the existing arrangements, unlike the changes which occurred to other types of work. However unpublished photographs continued to remain in a sort of limbo state in which their fifty year term would only be triggered by their authorised publication. This applies equally to ordinary and Crown copyright.
And lastly you raise the separate issue of access to photographs held by libraries and archives. Clearly this is a matter of ownership of the physical article rather than any copyright protection, but if you are sure that an image has been published more than fifty years ago, you should be OK to reproduce it despite not necessarily having access to the original print or negative. This is because of the very specific wording of the 1911 Act which links the copyright term to the making of the negative, rather than the derived positive print, which obviously could have been made at a much later date, indeed relatively recently. But there is one proviso to this. If the secondary source you wish to use is actually either a digital file or the product of a digital scanning process, the owner of the digital file may well claim copyright in the derived image. This is a hotly debated topic. Technically the law says there needs to have been sufficient original human input into the making of the new version for it to qualify as a 'new' work for copyright purposes, but this has not been adequately tested in the courts, and many archives etc may claim this copyright without necessarily having strong legal grounds for so doing. You should therefore tread carefully and be prepared to see your use disputed where the source is a more modern version rather than a straightforward photographic print from the original negative.
There are several things to consider here.
When looking at the length of term for copyright (which as you seem to have discovered already, is not that simple), you also need to consider whether a later Copyright Act may have changed things with respect to works which were created many years before, but still remain under copyright protection at the time of the new legislation. So taking the example of a photograph created at the start of WW1 ie in 1914, copyright would run to the end of 1964 under the 1911 rules, but as there was a new Copyright Act in 1956, you need to see what effect if any the new provisions may have had.
The next consideration is whether the photograph was published or not because different rules apply to published and unpublished works. In this context, a photograph residing in an archive may well not have been published in the sense that the law requires, and if it remains unpublished today, its copyright term has not technically started.
The next consideration is owner of the copyright. You are right to point out that the 1911 Act (section 21) grants the right of copyright to the owner of the negative from which the photograph is derived. At first glance this might appear to be the photographer, but if he was employed by a newspaper or picture agency, then the company will be the first owner of copyright. But there is another category which rarely gets discussed here, but which is likely to include many of the photographs in which you are interested, namely Crown copyright.
Fortunately although the 1956 Act did come into force before the expiry of the copyright in all photographs from 1914 onwards, where they were published photographs, the 1956 Act did not alter the existing arrangements, unlike the changes which occurred to other types of work. However unpublished photographs continued to remain in a sort of limbo state in which their fifty year term would only be triggered by their authorised publication. This applies equally to ordinary and Crown copyright.
And lastly you raise the separate issue of access to photographs held by libraries and archives. Clearly this is a matter of ownership of the physical article rather than any copyright protection, but if you are sure that an image has been published more than fifty years ago, you should be OK to reproduce it despite not necessarily having access to the original print or negative. This is because of the very specific wording of the 1911 Act which links the copyright term to the making of the negative, rather than the derived positive print, which obviously could have been made at a much later date, indeed relatively recently. But there is one proviso to this. If the secondary source you wish to use is actually either a digital file or the product of a digital scanning process, the owner of the digital file may well claim copyright in the derived image. This is a hotly debated topic. Technically the law says there needs to have been sufficient original human input into the making of the new version for it to qualify as a 'new' work for copyright purposes, but this has not been adequately tested in the courts, and many archives etc may claim this copyright without necessarily having strong legal grounds for so doing. You should therefore tread carefully and be prepared to see your use disputed where the source is a more modern version rather than a straightforward photographic print from the original negative.
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
Amazing thanks AndyJ, so quick and a lot of things to ponder.
I was just wondering if our politicians and politicians in the world at large, realise what a mess Copyright law is in? And whether, with hindsight, there's any plans to straighten things out?
It seems, using my simple analogy, that we have a road with different speed limits and the one that applies depends on a large number of factors. So no one really knows if your speeding unless it's tested in a court of law
I was just wondering if our politicians and politicians in the world at large, realise what a mess Copyright law is in? And whether, with hindsight, there's any plans to straighten things out?
It seems, using my simple analogy, that we have a road with different speed limits and the one that applies depends on a large number of factors. So no one really knows if your speeding unless it's tested in a court of law
Hi again fabben,
I think most people closely connected with intellectual property law are aware of its exceptionally complex state. If it's any consolation. UK law on copyright terms is much more straightforward than that in the USA, where prior to 1976 copyright had to be registered to gain protection. Registering could be done twice up to maximum of 56 years from the date of publication of the work. What is more, each state within the US had its own copyright laws which technically still apply in certain cases to works created before 1976 when federal law became the only recognised legal authority. This was the point at which the USA switched over to copyright terms based on the author's lifetime plus, initially 50 years, and now 70 years. There are countless legacy issues depending on whether the first or second registration was correctly carried out.
Codification of UK law is not as easy as it might seem. We are required to reflect EU decisions on copyright policy, and in addition, to abide by a number of international treaties. There have been many attempts at reform of the law, but ultimately due to these external constraints, the results have been merely to tinker with details, mainly intended to make things run more smoothly in the so-called digital economy; the latest of these - contained in the 2013 Enterprise and Regulatory Reform Act - are even now being fleshed out into secondary legislation, while measures affecting copyright introduced in by the Digital Economy Act 2010 still haven't been brought into force.
Looks like this forum will have plenty of work to do for some time yet!
I think most people closely connected with intellectual property law are aware of its exceptionally complex state. If it's any consolation. UK law on copyright terms is much more straightforward than that in the USA, where prior to 1976 copyright had to be registered to gain protection. Registering could be done twice up to maximum of 56 years from the date of publication of the work. What is more, each state within the US had its own copyright laws which technically still apply in certain cases to works created before 1976 when federal law became the only recognised legal authority. This was the point at which the USA switched over to copyright terms based on the author's lifetime plus, initially 50 years, and now 70 years. There are countless legacy issues depending on whether the first or second registration was correctly carried out.
Codification of UK law is not as easy as it might seem. We are required to reflect EU decisions on copyright policy, and in addition, to abide by a number of international treaties. There have been many attempts at reform of the law, but ultimately due to these external constraints, the results have been merely to tinker with details, mainly intended to make things run more smoothly in the so-called digital economy; the latest of these - contained in the 2013 Enterprise and Regulatory Reform Act - are even now being fleshed out into secondary legislation, while measures affecting copyright introduced in by the Digital Economy Act 2010 still haven't been brought into force.
Looks like this forum will have plenty of work to do for some time yet!
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
Hi AndyJ, In the last section of your post you mention that an old photograph, that has been restored/enhanced in some way, can introduce a new copyright on that new image.
I thought that a way around this would be to hirer someone to make a sketch or paint a picture of the photograph. No one could prove which photo was used to create this new image?
I thought that a way around this would be to hirer someone to make a sketch or paint a picture of the photograph. No one could prove which photo was used to create this new image?
Hi fabben,
Copying a copyright work in another medium is also infringement:
Copying a copyright work in another medium is also infringement:
However as you say if the drawing was made from an image which itself was an exact facsimile of a photograph which was out of copyright, then it would be hard to prove which was the source document for the drawing. I suppose that if an archive could show that no-one could have gained access to the original, therefore the only source from which to make the drawing was the newer digital copy, a court would, on the balance of probabilities, accept this contention. But it would still require the claimant to prove that copyright subsisted in the digital copy, as I explained in an earlier post.17 Infringement of copyright by copying.
(1) The copying of the work is an act restricted by the copyright in every description of copyright work; and references in this Part to copying and copies shall be construed as follows.
(2) Copying in relation to a literary, dramatic, musical or artistic work means reproducing the work in any material form.
This includes storing the work in any medium by electronic means.
(3) In relation to an artistic work copying includes the making of a copy in three dimensions of a two-dimensional work and the making of a copy in two dimensions of a three-dimensional work.
(4) Copying in relation to a film or broadcast includes making a photograph of the whole or any substantial part of any image forming part of the film or broadcast.
(5) Copying in relation to the typographical arrangement of a published edition means making a facsimile copy of the arrangement.
(6) Copying in relation to any description of work includes the making of copies which are transient or are incidental to some other use of the work.
Source: Copyright, Designs and Patents Act 1988 s17
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
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historyauthor
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use of published photos
Fascinating information. If a WWI photo has been published in a book or magazine in, say the 20s or 30s, could it be assumed that it is public domain? For example, could it be scanned from the publication and used even if the photo is in the IWM?
Hi Historyauthor,
It's hard to give a categorical answer without knowing the exact sources of the images but yes, in general terms, a photograph which was published in a book or magazine before 1939 should now be in the public domain. This would apply to those covered by ordinary copyright under the 1911 Copyright Act (which as I explained earlier was unchanged by the 1956 Act) and those under Crown Copyright which normally last for 125 years from the end of the year in which the item was made. However this term reduces to 50 years from the date of publication if the Crown Copyright work was published commercially.
It's hard to give a categorical answer without knowing the exact sources of the images but yes, in general terms, a photograph which was published in a book or magazine before 1939 should now be in the public domain. This would apply to those covered by ordinary copyright under the 1911 Copyright Act (which as I explained earlier was unchanged by the 1956 Act) and those under Crown Copyright which normally last for 125 years from the end of the year in which the item was made. However this term reduces to 50 years from the date of publication if the Crown Copyright work was published commercially.
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