Postcards published by Mills & Co Ltd, Portsmouth

[savoyard]

Good Morning,
I'm working on updating a public information panel in Southsea and would like to include images from postcards published by Mills & Co in the 1930s. I've been unsuccessful in establishing the status of this company or whether its intellectual property rights were transferred elsewhere.

Can anyone help please? Thank you.

[savoyard]

I should add that the images concerned are photographic.

[AndyJ]

Hi savoyard and welcome to the forum,

Copyright in photographs made in the 1930s was governed by the 1911 Copyright Act. This act said the following regarding photographs:

21 Provisions as to photographs

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.

Subsequent legislation (the 1956 and 1988 Copyright Acts) did not amend these provisions for photographs made before 1 June 1957 (when the 1956 Act came into force). Therefore the original photographs and the original postcards are no longer protected by copyright.

However. if you are intending to use digital copies of the postcards made by someone else, you will need to see if that person is claiming copyright in their digital scans. It is highly unlikely that there would be any new copyright created by just scanning old photographs or postcards because the process doesn't involve any additional creativity on the part of the digitiser, but the presence of a copyright notice might indicate that they think they have some rights (even if they don't) and this may lead to a dispute that you might wish to avoid. For example, the Francis Frith Collection assert that copyright exists for all the digital images of their old postcards, including those originally published in the nineteenth century.

On the other hand if you own or have access to the actual postcards and make the arrangements to scan or re-photograph them yourself, this issue will not arise. Just be aware that your images will have no protection and anyone can re-use them.

[savoyard]

Thank you....food for thought! I am aware that Stephen Cribb, Mills' principal photographer, died in 1963 and is attributed on some of the Southsea Rock Garden postcards.

[savoyard]

I have now been informed that Mills & Co traded from 1886 to 1964 at various locations in Portsmouth. In the light of the Copyright Act information provided, would I be correct in assuming that postcards published in the 1930s/40s by the company and not credited to a photographer would be out of copyright. I would intend to use scanned images made personally from original postcards in my possession.

[AndyJ]

For the reason I gave in my first posting, copyright in pre-1957 photographs created in the UK, ended long ago. As you can see from section 21 of the Copyrighht Act 1911, copyright duration for photographs was not dependent on the lifetime of the photographer.

[savoyard]

Much appreciated.

[savoyard]

Hello again, Andy!
Have just come across your post from 13 June 2010, which cites the 70 year rule from death of author for artistic works (including photographic postcards) enshrined in the 1988 Copyright Act.

I am now totally confused!

[AndyJ]

Without knowing the exact posting you are talking about, it's hard to explain, but I assume I was talking about photographs which were produced after 1 June 1957, which because copyright in them was still running on 1 August 1989, were caught by the new provisions of the 1988 Act, namely that copyright in photographs began to be based on the lifetime of the author for the first time.

For a little background, Acts of Parliament are not retroactive unless the wording in the act makes it clear that this is to be the case. When the 1956 Copyright Act was passed it contained the following in Section 3

(4)Subject to the last preceding subsection, copyright subsisting in a work by virtue of this section shall continue to subsist until the end of the period of fifty years from the end of the calendar year in which the author died, and shall then expire:

Provided that—

(a) in the case of an engraving, if before the death of the author the engraving had not been published, the copyright shall continue to subsist until the end of the period of fifty years from the end of the calendar year in which it is first published;

(b) the copyright in a photograph shall continue to subsist until the end of the period of fifty years from the end of the calendar year in which the photograph is first published, and shall then expire.

Then in the CDPA 1988 paragraph 12 of Schedule 1 says:

Duration of copyright in existing works

12 (1) The following provisions have effect with respect to the duration of copyright in existing works.

The question which provision applies to a work shall be determined by reference to the facts immediately before commencement; and expressions used in this paragraph which were defined for the purposes of the 1956 Act have the same meaning as in that Act.

(2) Copyright in the following descriptions of work continues to subsist until the date on which it would have expired under the 1956 Act—

(a) literary, dramatic or musical works in relation to which the period of 50 years mentioned in the proviso to section 2(3) of the 1956 Act (duration of copyright in works made available to the public after the death of the author) has begun to run;

(b) engravings in relation to which the period of 50 years mentioned in the proviso to section 3(4) of the 1956 Act (duration of copyright in works published after the death of the author) has begun to run;

(c) published photographs and photographs taken before 1st June 1957;
[...]

So simply put, the 1956 Act did not apply retrospectively and the 1988 Act said that the duration of copyright protection provisions relating to photographs made before the 1956 Act came into force remained as set out in the 1911 Act, namely 50 years from the making of the photograph.

[savoyard]

Thanks, Andy, you are being extremely patient with me!