Old Photographs

Photographic images are a valuable resource for art practitioners,

as well as publishers, archivists and historians, film and TV programme makers, website designers and owners, museum and gallery curators and exhibition organisers. The legitimate use of such images can be fraught with difficulties for those who are not owners of the copyright in them. Permission to reproduce and/or publish, which only the copyright owner can give, is often complicated by the absence of clear documentation identifying the true copyright owner - old photographs can be particularly troublesome.

The Copyright Designs and Patents Act of 1988 introduced radical reforms to previous copyright laws in the UK, and made the legal position in relation to photographs much clearer than it had ever been. Copyright in photographs taken on or after August 1, 1989 is owned by the taker, unless made during the course of employment (in which case the employer is the copyright owner) or under a contractual commission specifying that the commissioner will own the copyright (in which case the commissioner owns the copyright). In the case of photographic commissions for private or domestic purposes, the commissioner is the copyright owner, unless there is an explicit contractual term that the photographer will own the equivalent of copyright (known as the 'privacy right'), in which case the photographer will own copyright. Copyright in all photographs made after August 1, 1989 used to last for the taker/maker's lifetime plus 50 years after their death, but on January i, 1996 it was extended to 70 years after death (when copyright length was harmonised throughout the EU).

In relation to photographs made before August 1, 1989, previous UK copyright laws are applied to determine who is the copyright owner and for how long. There is no copyright in photographs made before 31 December 1945. Copyright in photographs made on or after January 1, 1946 now lasts for 70 years from the end of the calendar year in which they were taken.

Ownership of copyright in photographs taken between January 1, 1946 and July 31, 1989 depends on whether they were commissioned. If they were commissioned, the copyright owner would normally be the commissioner, unless the commission contract explicitly stated that the freelance photographer would own the copyright. If not commissioned, then the person who owned the material on which the image was made (the negative film or transparency, say) would own the copyright - not the taker. This bizarre rule led to much misunderstanding and confusion over copyright ownership during those years when good equipment was expensive, and cameras with film were often lent to freelance photographers by, for example, news agencies and newspapers. However, if an employee took a photograph during those years, the rule was different: the employer would own the copyright, unless the contract of employment explicitly stated otherwise. Where reasonable efforts have been made to identify the author of a photograph taken on or after January 1, 1946, without success, copyright lasts for 70 years from the end of the calendar year in which it was taken or, if it was published, 70 years from the end of the year of publication. If the identity of the author becomes known during the 'unknown' copyright period, copyright lasts for the identified author's lifetime plus 70 years after the end of the year in which they die. However, there is no breach of an unknown author's copyright in a photograph if it has not been possible to identify that person, and it is reasonable to assume that either the copyright has expired or the author died more than 50 years before any 'infringing' act took place (such as reproducing or merchandising such a work).

Where someone died (or dies) on or after June 1, 1957, bequeathed a photographic print in their will, and was also the copyright owner of that print, the beneficiary of that bequest became the copyright owner.

Consider a hypothetical case. A local heritage museum has been given a collection of photographs of the surrounding area, and wants to rephotograph, frame, exhibit, sell as postcards, or post on its website. The prints appear to date from the 189os, 19oos, 1930s, 1950s, 196os and 1990s. None has been published previously, to the best of the museum's knowledge. Those taken before 31 December 1945 would no longer be protected by copyright. Those taken in the 1950s, 1960s, and 1990s would be protected by copyright for the lifetime of the author plus 70 years after the end of the year of their death. The museum should try to trace the copyright owners of the images taken in the 1950S, 196os, and 1990s, and seek their permission to rephotograph and market those images. After making reasonable efforts to trace the copyright owners, without success, the museum should decide whether it is reasonable to assume that the copyright has expired, or that the author died more than 50 years ago - and it would be prudent to take out an insurance policy to cover any liability that may arise from breach of copyright - before using the images as planned.

Publication Right, introduced into UK law on January 1, 1996, applies to works, including photographs, where copyright has expired and such work has never been exposed to public view - via publication or exhibition. If such works are published for the first time, the publisher automatically acquires a publication right that lasts for 25 years from the end of the year of first publication. This right is similar to copyright, and enables the publication right owner to prevent any reproduction they have not authorised. In the case of unpublished photographs, such as those taken before January 1, 1946 mentioned in the foregoing heritage museum example, the museum would acquire a publication right, lasting 25 years from the end of the year of their first exposure to the public.

Photographic copies made of other two-dimensional works (such as old photographs, prints or paintings) in respect of which copyright has expired, do not create a 'new' copyright for the photographic copy. That is because the 'new' photographic image is merely a copy of on older original image, and copyright protection is only given to 'original' works, not rephotographs of original works (see AM26; for the report of a recent USA court decision to this effect, which has yet to be definitively tested in UK courts). Picture libraries and archives sell the use of images that are out of copyright, and their customers simply undertake only to use the images supplied to them for purposes specified in their 'limited use' contract.

© Henry Lydiate 2003

This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material.
The article is for information only, and not for the purpose of providing legal advice.
Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.