A question on copyright

[Martyn]

Copyright is obviously a bit of a minefield but I have a question !

I bought a print, initially to copy and put on the wall of my old farmhouse in Hungary, which I will still do, but the quality is so good and so detailed that it would be fine for Alamy via the archival route. It is an original print that has a postcard type layout printed on the back. It was taken by a Hungarian photographer in the 1930s who has been deceased for more than 70 years. A small signature is on the print and obviously I would attribute his name in the title and tags. There are also other images by this photographer being used online buy not the image I have.

Whilst he has been deceased for more than 70 years, I am also aware that copyright can be passed on to a heir or heirs so I have been trying to find out if it applies in this instance.

Somebody in a Facebook group I am with asked a similar question and I answered as above regarding the 70 year rule ... but was then answered by someone who said that I was almost correct but not fully ... she said "The material rights part can be passed on, not the personal rights". She then went on to say that she is a lawyer who deals with copyright litigation.

Now, I am not going to take the word of a stranger on Facebook and get bitten somewhere down the line so, the question is, has anybody else heard of a difference between material and personal rights because I have never heard of them and Google is no help either !!

[Cryptoprocta]

I am not a lawyer, but as far as I can make out:

1. Hungary has the same rules as the rest of the EU, death of the author plus 70 years, as you said.

2. Copyright can be passed on to heirs, but only until that time is up.

     2b (with the sole exception of Peter Pan, and even that's more goodwill in the UK than anything else, and who in their right mind would go to court about it?)

3. "Personal Rights" seem to be irrelevant in this case, and seem (in the EU) to relate to things like a factory polluting the air you breathe.

 

I wonder if she meant that a material work of art can be passed on even after the 70 years, but the right of copyright in that art doesn't go with it.

So I might have inherited an original artwork in which copyright had expired, but e.g. if prints were available, other people would now be able to make and sell photos of the prints, I have no more rights than they have to do that.

 

From my recentish experience, even lawyers who claim to be IP specialists don't necessarily have a clue.

 

[Martyn]

Yes, it's complicated ! From what she was saying / implying, the print I have bought is now out of copyright as the photographer has been deceased for more than 70 years so it is now free to use .... I just needed to clarify that is the case and it seems that is so ! What I have read so far also agrees with what you have written as well Cryptoprocta so I think it will be safe to use !

[zxzoomy]

I go by the advice in the copyrightaid site that "generally speaking any photograph taken and published in the UK before 1945 will now be out of copyright. Anything taken before 1945 and published before 1993 will be free of both copyright and publication right". They advise considering section 21 of the Copyright Act 1911, the 1956 Copyright Act, and that  "in 1995 the UK was obliged to introduce changes to conform with European law. This increased the post mortem element to 70 years and it also had retrospective effect on any photograph which was still in copyright on 1 July 1995. In other words any photograph created before 1 January 1945 would not be affected because copyright in it would have ended on 31 December 1994."

 

My understanding is that the "life of the author plus 70 years" applies to cartoons, art, adverts etc but not to photos taken before 1945 (in the uk).

As it's a complex area caution is the best route. And other countries differ.

[spacecadet]

3 hours ago, zxzoomy said:

I go by the advice in the copyrightaid site that "generally speaking any photograph taken and published in the UK before 1945 will now be out of copyright. Anything taken before 1945 and published before 1993 will be free of both copyright and publication right". They advise considering section 21 of the Copyright Act 1911, the 1956 Copyright Act, and that  "in 1995 the UK was obliged to introduce changes to conform with European law. This increased the post mortem element to 70 years and it also had retrospective effect on any photograph which was still in copyright on 1 July 1995. In other words any photograph created before 1 January 1945 would not be affected because copyright in it would have ended on 31 December 1994."

 

My understanding is that the "life of the author plus 70 years" applies to cartoons, art, adverts etc but not to photos taken before 1945 (in the uk).

As it's a complex area caution is the best route. And other countries differ.

This is a year-old thread, but, no.

The 1911 Act term wasn't 50 years- it was the lifetime of the photographer plus 50 years. So an image taken in 1912 is in copyright until the end of this year if the photographer lived until 1950.*

So you can only safely assume copyright to be expired for an image taken before about 1911. This means, for example, that Great War images may still be in copyright.

 

*1950+50+20=2020, but copyright runs to the end of the year after expiry.

Edited March 18, 2021 by spacecadet

[zxzoomy]

For books, plays and other art works I think you are right. But for photos, the 1911 Act says:

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.

 

https://www.legislation.gov.uk/ukpga/Geo5/1-2/46/enacted

[spacecadet]

10 hours ago, zxzoomy said:

For books, plays and other art works I think you are right. But for photos, the 1911 Act says:

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.

 

https://www.legislation.gov.uk/ukpga/Geo5/1-2/46/enacted

Quite right. I had no idea photographs were so specifically discriminated against until the 1956 Act.

So my policy is a mere courtesy.

[Harry Harrison]

1 hour ago, kay said:

The DACS site seems to explain this quite well

 

https://www.dacs.org.uk/knowledge-base/factsheets/copyright-in-photographs

Thanks for the posting the link, it's the clearest explanation that I've seen so far and introduces (to me at least) the concept of 'revived' copyright. There are many famous photographs taken by many famous photographers in the inter-war years and these are most definitely still in copyright, this seems to explain why.

[spacecadet]

4 hours ago, Harry Harrison said:

. There are many famous photographs taken by many famous photographers in the inter-war years and these are most definitely still in copyright, this seems to explain why.

Not in the UK- if published before 1945, when the term was still 50 years, they didn't stay in copyright long enough for it to be revived in 1995. In any case, the revival was only for 20 years. All expired now.

Edited March 19, 2021 by spacecadet

[Harry Harrison]

34 minutes ago, spacecadet said:

Not in the UK- if published before 1945

Well, just choosing one at random, John Piper, Copyright 'The John Piper Estate'.  How so?

 

https://www.tate.org.uk/art/archive/tga-8728/photographs-taken-by-john-piper

[zxzoomy]

7 minutes ago, Harry Harrison said:

Well, just choosing one at random, John Piper, Copyright 'The John Piper Estate'.  How so?

 

https://www.tate.org.uk/art/archive/tga-8728/photographs-taken-by-john-piper

I think it depends when they were taken. To quote Dacs.org.uk: "Photographs taken before 1 January 1945 - The term of protection depends on whether the work enjoyed copyright protection within another European member state on 1 July 1995. " Also, according to the Copyrightaid website, many museums and the like make a new digital image of a photo and assert their copyright of that. Asserting that does not necessarily mean the original work is still in copyright. 

[spacecadet]

21 minutes ago, Harry Harrison said:

Well, just choosing one at random, John Piper, Copyright 'The John Piper Estate'.  How so?

 

https://www.tate.org.uk/art/archive/tga-8728/photographs-taken-by-john-piper

I've wondered about that too but the clue is the date- "c1930s-1980s". They must be relying on the uncertainty of the date of origination. You only have to get to 1956 and the copyright clock starts from the date of publication- presumably when he gave them to the Tate in 1987. An alleged infringer would have to prove an image was taken before 1956.

John Piper died in 1992. So the presumed copyright expires in 2062.

 

5 minutes ago, zxzoomy said:

many museums and the like make a new digital image of a photo and assert their copyright of that.

Here it's copyright of Piper's estate not the Tate . In any case there's no separate, let alone new, copyright in a straight copy.

Edited March 19, 2021 by spacecadet

[Harry Harrison]

1 minute ago, zxzoomy said:

many museums and the like make a new digital image of a photo and assert their copyright of that. Asserting that does not necessarily mean the original work is still in copyright. 

Certainly not clear then, the Tate don't give dates taken for those photographs but many will be pre-war. This one was published in the Shell Guide for Oxfordshire in 1938 for example.

 

https://www.tate.org.uk/art/archive/items/tga-8728-1-29-35/piper-photograph-of-cement-works-in-chinnor-oxfordshire

 

If just scanning them gives you the right to assert copyright then that's a fairly slippery slope, especially in these days of non-fungible tokens.

[Harry Harrison]

The Tate also license paintings directly off their website, presumably just the ones in their collection so that might be down to what zxzoomy describes. I'm not about to do it but would that mean that if you wanted to produce greetings cards you would have to pay the Tate to do so?

[spacecadet]

2 minutes ago, Harry Harrison said:

Certainly not clear then, the Tate don't give dates taken for those photographs but many will be pre-war. This one was published in the Shell Guide for Oxfordshire in 1938 for example.

 

https://www.tate.org.uk/art/archive/items/tga-8728-1-29-35/piper-photograph-of-cement-works-in-chinnor-oxfordshire

There will be some provable outliers such as that one but most look quite resistant to dating. I see that it is his entire collection of photographs, hence the wide range of possible dates.

9 minutes ago, Harry Harrison said:

If just scanning them gives you the right to assert copyright

It doesn't, see above.

[spacecadet]

8 minutes ago, Harry Harrison said:

The Tate also license paintings directly off their website, presumably just the ones in their collection so that might be down to what zxzoomy describes. I'm not about to do it but would that mean that if you wanted to produce greetings cards you would have to pay the Tate to do so?

If they're in copyright and the Tate is authorised by the artist or the estate, yes. They also appear to be asserting here

https://www.tate.org.uk/about-us/policies-and-procedures/website-terms-use

property rights over out-of-copyright works they own, so in those cases, probably.

Edited March 19, 2021 by spacecadet

[Harry Harrison]

16 minutes ago, spacecadet said:

If they're in copyright and the Tate is authorised by the artist or the estate, yes. They also appear to be asserting here

https://www.tate.org.uk/about-us/policies-and-procedures/website-terms-use

property rights over out-of-copyright works they own, so in those cases, probably.

...and you can download a 'Brief Guide to Copyright' which looks good, 66 pages though.

[Harry Harrison]

The Tate refer to a flowchart on the British Library site by Tim Padfield, the link doesn't work but it's most likely this:

 

https://cpb-eu-w2.wpmucdn.com/blogs.bristol.ac.uk/dist/7/228/files/2014/03/Copyright-Flow-Chart-Tim-Padfield.pdf

 

Was the photograph taken before 1st June 1957 - Yes

Copyright expires 70 years after the death of the author.

 

That seems different again.

 

 

 

 

Edited March 19, 2021 by Harry Harrison
70 years not 50

[spacecadet]

27 minutes ago, Harry Harrison said:

 

Was the photograph taken before 1st June 1957 - Yes

Copyright expires 50 years after the death of the author.

 

 

 

 

 

 

It says 70. Which may in itself be incorrect if unpublished.. All academic now- no image published before 1957 can still be in copyright now.

Edited March 19, 2021 by spacecadet

[Harry Harrison]

28 minutes ago, spacecadet said:

It says 70. Which may in itself be incorrect if unpublished.. All academic now- no image published before 1957 can still be in copyright now.

Thanks, I've corrected that. It seems that Mr. Padfield passed away last year but he was a renowned expert on copyright so I would think that his flowchart could be relied upon especially if referenced by The Tate and The British Library. The distinction seems to be between those photographs where the author is known and those where it isn't. John Piper passed away in 1992 so surely his copyright lasts until 2062 and has been passed on to his family?