I am in the process of writing a book that details the lives of 69 actors and actresses of the 1890s.
I obviously want to illustrate it with photographs of the people involved and I can find plenty of images of each across the internet all taken in the 1890s, so clearly out of copyright from original publication (usually as cabinet cards) and, it is not unreasonable to assume at least 70 years post the photographers death.
Many are on Wikipedia, which states that the image is 'public domain, via Wikimedia Commons'.
However, while I could easily 'lift' these images from Wikipedia and use them, I expect that their quality would not be of a high enough resolution or of suitable quality to be reproduced in print.
I have therefore looked elsehwere and discovered that most of the photographs are also held as part of the National Portrait Gallery collection.
The copies I could get from NPG would be of a print quality, but does the National Portrait Gallery hold the [a] copyright for a fee would be charged ?
All advice much appreciated
Use of 1890s photos
Re: Use of 1890s photos
Hi Fandango and welcome to the forum,
You are right that any original photograph from the 1890s will no longer be in copyright, although this is not because 70 years have passed since the death of the author. It is because, prior to 1911, photographs were only protected for 14 years after the death of the photographer, and following the 1911 Copyright Act copyright in any photograph, whether it had been published or not, was a straightfoward 50 years from the date it was made. This new period also applied to existing photographs which were in copyright when the 1911 Act came into force, so it would apply to all photographs made in the 1890s. So far, so clear and reasonable.
However since you don't have access to the original prints or negatives, you have to agree to the terms of access which are specified by institutions such as the National Portrait Gallery who do hold the originals. This is not how copyright is supposed to work, but they would argue that they have incurred expenses in curating and preserving these items and they rely on the income from allowing access to high quality scans to continue their work. While many see this as morally indefensible since they receive a good deal of money from the state (ie the taxpapyers), and denying free access is effectively extending copyright even though this protection no longer legally exists. They are literally the gatekeepers. You will find that they are careful not to say that they own copyright in the original works, but they do assert that they own copyright in the high quality scans they have made of the originals. This is highly debatable, and unfortunately their assertions have not been tested in court. Indeed they go to great lengths to avoid the matter going to court because they know that it is highly likely that the judgment would go against them. For more details about that subject, see the 2009 dispute between the Wikimedia Foundation and the NPG.
So you are stuck. To get hold of the higher quality digital images you need for publication, you need to pay their 'access' fees. No pay, no access. As you say, you can access lower quality scans for free but these probably lack the definition necessary for publication in book format
You are right that any original photograph from the 1890s will no longer be in copyright, although this is not because 70 years have passed since the death of the author. It is because, prior to 1911, photographs were only protected for 14 years after the death of the photographer, and following the 1911 Copyright Act copyright in any photograph, whether it had been published or not, was a straightfoward 50 years from the date it was made. This new period also applied to existing photographs which were in copyright when the 1911 Act came into force, so it would apply to all photographs made in the 1890s. So far, so clear and reasonable.
However since you don't have access to the original prints or negatives, you have to agree to the terms of access which are specified by institutions such as the National Portrait Gallery who do hold the originals. This is not how copyright is supposed to work, but they would argue that they have incurred expenses in curating and preserving these items and they rely on the income from allowing access to high quality scans to continue their work. While many see this as morally indefensible since they receive a good deal of money from the state (ie the taxpapyers), and denying free access is effectively extending copyright even though this protection no longer legally exists. They are literally the gatekeepers. You will find that they are careful not to say that they own copyright in the original works, but they do assert that they own copyright in the high quality scans they have made of the originals. This is highly debatable, and unfortunately their assertions have not been tested in court. Indeed they go to great lengths to avoid the matter going to court because they know that it is highly likely that the judgment would go against them. For more details about that subject, see the 2009 dispute between the Wikimedia Foundation and the NPG.
So you are stuck. To get hold of the higher quality digital images you need for publication, you need to pay their 'access' fees. No pay, no access. As you say, you can access lower quality scans for free but these probably lack the definition necessary for publication in book format
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
Re: Use of 1890s photos
Hi, I have a similar problem and would be most grateful for advice. I want to reproduce in an academic book photographs taken of individuals who died well before 1945 for the National Photographic Record, which is currently housed by the NPG. As I understand it, the commissioner was the NPR, not the sitter. The photographer was Walter Stoneman (according to the NPG, though possibly it was technically the company he worked for, Russell), and he died in 1958. The photographs will not have been published in the regular sense, though they were so to speak available in the public domain since that was the purpose of the NPR. Will the copyright in these pictures have been revived by the most recent legislation?
I don't need high resolution images from the NPG, so it's only a question of the copyright status for publication.
I've tried to work this out from previous posts and from the legislation, but my mind has been totally scrambled - so thanks very much for any thoughts!
Alexander
I don't need high resolution images from the NPG, so it's only a question of the copyright status for publication.
I've tried to work this out from previous posts and from the legislation, but my mind has been totally scrambled - so thanks very much for any thoughts!
Alexander