Copyright Aid

I have recently bought a number of postcards dating from around 1900 to 1940 (of those that can be positively dated), the images of which I would like to use in an iphone application and/or print publication.

I am aware of the general copyright rules regarding 70 years after the death of the artist/producer/creator, but I'm not sure about postcards. I am also aware of the ruling about talking due care and diligence to trace owners, etc.

Here are my queries regarding copyright status vis-a-vis a no of scenarios:

1) Is the copyright with the company or the photographer?

2) Some postcards have details of neither company nor photographer and are unused (therefore can't be dated). What happens in these circumstances?

3) Some postcards can be dated (pre 1941) but there are no details about the photographer or the company.

4) Some postcards can be dated (pre 1941) and have both details about the photographer and the company.

5) Some postcards have both company and photographer info but can't be dated.

6) What about postcards that feature companies that have ceased to trade/exist?

Any help would be greatly appreciated,

Hi (again) Amanda,
It seems like you've already done some homework on this subject, but in case you haven't seen them, here are a couple of links to threads on very similar subjects: Old maps Postcards etc and Photographs from an old Brochure. It is worth noting that prior to 1 Aug 1989 the term for copyright was the lifetime of the author plus 50 years from the end of the year of death. Only where something was still in copyright as at 1 Aug 1989 would a furher 20 years be added on.
So to your specific questions.

1. Copyright could be owned by either the publsiher or the photographer. If the photographer was on the staff of the company or was specifically commissioned (prior to 1988) to take the photographs, then the company will be the first owner. If the photographer was a freelance who sold the photographs to the company he will be the first owner, but depending on the sale arrangements he might have transferred the copyright to the company at the time of sale. Either way if the identity of the photgrapher is known, it will generally be his life plus 50 (or 70 - see my note above) years which you need to calculate. The 'life' of the company is immaterial.

2. Where no details exist about the author, publsiher or date of publication (and no useful inferences can be drawn from the subject matter), the works are termed 'orphans' and fall into a kind of limbo. However if a reasonable assumption can be made through the subject matter as to the rough date of publication, then that might satisfy a court that sufficient dilligence was shown in trying to establish the actual date of publication. There are a number of usefull sources ( eg here) available to help to date old photographs, based on such things as the style of clothing worn, hairstyles, the types of vehicles on the street, the posing styles used in studio portraits etc. You could also visit sites for postcard collectors such as: http://www.memoriespostcards.co.uk/

3. Where the date of publication is known or at least it obvious that it isn't after a certain date (eg the date of posting) but no author details are available, you can apply the '70 years since the end of the year of publication' rule to ascertain if the photograph is still in copyright. For anything published before 1939, it would have been 50 years after the year of publication. so anything published before 1941 is out of copyright (whichever term applies) if the identity of the author cannot be discovered.

4. and 5. Where the name of the photographer is known but the date of death cannot be traced through a reasonably dilligent search (including the regsisters of deaths such as Free BMD), but it is reasonable to assume that he died more than 70 years ago (for instance if a date of birth or other significant milestone can be established) then the work may be published without infringing copyright. In these circumstances the details of the company are not really relevant unless it assists in discovering more details about the photographer.

6. Similarly if the company is known but has ceased to exist, this is only of value if there are any company records or archives which can either assist in identifying the photographer, or show where the company assets (which might include the copyright in the picture) have passed to another person or company. Companies House may well have details of any winding up or the last known directors' details etc. If you believe that copyright might still exist, for instance where the postcards seem to date from after 1941, it would be advisable to contact the putative current owner of the copyright for permission to reproduce them.

Many thanks for your helpful advice, as always.

I omitted to mention that some of the postcards are reproductions of paintings, drawings or prints, rather than photos. Presumably the criteria still applies (or not?).

Amanda

Hi Amanda,
Yes pretty much the same criteria apply to paintings or drawings. Indeed I would be surprised if many artists would have been full-time employees of the card manufacturers, so the copyright ownership chain is likely to be much simpler, should it be neessary to trace the current owner.

Another related question:

What is the copyright status of artist's illustrations and/or photographer's photos in old books?

For example, I have a book published in 1911 written by an author who died in 1926 and illustrated by an artist who was born in 1880 (death date unknown).

Presumably the copyright of the images relate to the artist or is it more complicated than this?

Hi Amanda,
Yes you are right to assume the copyright term for the illustrations relates to the life of the artist, rather than the auhor of the text. Unfortunately you cannot assume that the work of someone who was born in 1880 is out of copyright. In theory they could have lived to be ninety years old (ie they would have died in 1970) when the copyright term was 50 years post mortem, and thus copyright was still running when the 1988 Act came in force (on 1 August 1989) thus adding a further 20 years onto the post mortem term.
If you have a name for the artist, I suggest you contact the Design and Artists Copyright Society to see if they have any record of his date of death. They may also be able to advise you what licence would be payable to use the illustrations, assuming they are still in copyright and the artist (or his heir) is registered with the society). By way of an illustration (excuse the pun) of the possible costs, a licence for book publishing can start at £44 for editorial use for a print run of up to 500 books, or for digital use (eg apps) £30 for up to 250 downloads, rising to £58 for up to 1000 downloads.
If the artist is not a DACS member, the figures above could still be useful in negotiating a figure with the current owner of the copyright, if you can locate them. Bear in mind that DACS take 25% of the fees they charge to cover their admin costs, so an artist would only get £33 for a book with a print run of 500 copies.