Afterlife of Photographs
On 16 May 2019 the fifth edition of the international photography fair, Photo London, opens at Somerset House. 100 or so specialist galleries from around the world will exhibit for sale photographic works by over 400 artists – not only by contemporary practitioners, but also ‘new work by established masters and gems from the dawn of photography’.
It is no coincidence that on the same date in London Sotheby’s will hold its annual auction dedicated to photographs, initiated at London in 1971, New York in 1975 and Paris in 2002. These sales include works ‘from the entire history of the medium … salt prints and daguerreotypes of the 1840s to contemporary … including works by blue-chip photographers … William Henry Fox Talbot … Eugene Atget … Richard Prince’.
Two rival auctioneers, Christie’s and Phillips, inevitably followed suit and now regularly hold dedicated sales of photographs. A significant niche market of auction sales of this type has developed in recent decades, according to the latest report from art market analysts ArtTactic: Photography Auction Market – April 2019. A combined total of around US$62 million was achieved in 2018 at the three houses leading the field: Christie’s, Sotheby’s, Phillips.
Unsurprisingly auction sales of photographs over the past decade have been dominated by work of photographers who had died, principally (in total sales terms) Ansell Adams (d.1884), Edward Weston (d.1958) and Irving Penn (d.2009). And some of the highest auction prices for individual photographs were fetched for early 20th century images made by photographers who had died. For example: Edward Steichen’s (d.1973) gum bichromate print over platinum, The Pond – Moonlight (1904), sold at Sotheby’s New York in 2006 for US$2,928,000; Man Ray’s (d. 1976) hand-coloured silver gelatine print, Portrait of a Tearful Woman (1936), sold at Christie’s New York in 2017 for US$ $2,167,500.
Ownership of photographic work can be both financially and culturally valuable – especially if rare or unique. A key factor that supports – and conversely may undermine – the values of photographs is copyright. All those dealing in or acquiring photographic works should ideally understand whether they are copyright-protected, or are copyright-free. In other words, before photographs are traded or acquired, it is wise and prudent to establish whether copyright law exists to safeguard images against others reproducing and merchandising them, or has expired to allow the ‘public domain’ to do so freely and thereby potentially undermine the values of unique or limited-edition acquisitions.
Beyond the market, photographs can be important resources for artists, publishers, archivists and historians, film and programme makers, website designers and owners, museum and gallery curators and exhibition organisers. Legitimate use of such images can be fraught with difficulties for those who are not owners of copyright in them. Permission or licence to use sourced photographs is often complicated by the absence of clear documentation identifying when the image was made and by whom, and indeed whether it is copyright-protected – older photographs can be particularly troublesome. This complicated situation merits some brief unpacking through the following reference guide.
Photographic Privacy Right
UK’s Copyright Designs and Patents Act of 1988 (88 Act) introduced radical reforms of previous copyright laws, and made the legal position in relation to photographs much clearer than it had ever been, bringing them into line with all other artistic works – with one notable exception: privacy.
When photographs are commissioned for private or domestic purposes, the 88 Act gives commissioners of such works an automatic ‘privacy right’ not to have the commissioned images exhibited or communicated to the public, or copies issued to the public, unless the commissioner gives consent or a written waiver of the privacy. This new right applies only to commissioned works made on or after the 88 Act came into force on 1 August 1989, and lasts for the same length as copyright in the commissioned photographs.
EU-EEA Copyright Harmonisation: 1996
Copyright in photographs made on or after 1 August 1989 used to last from making until end of the year of the taker/maker’s death plus 50pma (post mortem auctoris – ‘after the author’s death’). But on 1 January 1996 copyright was extended to 70pma, to harmonise its length throughout the EEA (EU plus Iceland, Liechtenstein and Norway). Harmonisation to 70pma was initiated and directed by the EU to correct differing lengths of copyright then operating in national laws of Member States (e.g. UK 50pma, Spain 60, Germany 70).
However, each Member State needed to make transitional provisions dealing with the length of copyright of works made before EEA harmonisation. UK’s transitional provisions for photographs taken before 1 January 1996 were straightforward for photographs taken on or after 1 August 1989: 70pma. But UK law is more complex for photographs made before 1 August 1989.
UK’s Intellectual Property Office helpfully advises: ‘Generally speaking, in the UK copyright in images lasts for the life of the creator plus 70 years from the end of the calendar year of their death, although the length of the copyright period will depend on when the image was created. That means that images less than 70 years old are still in copyright, and older ones may well be, depending on when the creator died. For old images or photos, you may never be entirely sure if something is in copyright, but knowing the age of the photo will be a good guide to make an educated guess whether the photo is likely to be protected by copyright … It is important to be aware that copyright duration can be very complex for certain older works.’
The provenance of a photograph ideally requires expert legal analysis on a case by case basis to determine its copyright status. However, despite such complexity, general considerations about copyright of older photographs under UK law may be useful.
Photographs made 1 June 1957 to 31 July 1989: unpublished
In relation to photographs made on/after 1 June 1957 to 31 July 1989, previous law determined the length of copyright according to whether the photograph had been published. For photographs made between these dates copyright was perpetual until published, then ran for a fixed period of 50 years from the end of the year first published. The 88 Act abolished this perpetual rule, and replaced it (for photographs made between these dates and unpublished by 31 July 1989) with one of two new copyright periods depending on the year of the photographer’s death.
If the photographer died before/by 31 December 1968, copyright runs for a fixed period of 50 years from 1 January 1990 to 31 December 2039 (e.g. made 1958, died 1967, copyright from making to 31 December 2039). If the photographer died in 1969 or any year thereafter, copyright runs for the photographer’s lifetime plus 70pma (e.g. made 1958, died 1970, copyright from making to 31 December 2040).
Photographs made 1 June 1957 to 31 July 1989: published
For photographs made on or after 1 June 1957 and first published by 31 July 1989, two rules were introduced. If the photographer died more than 20 years before first publication, copyright ran for a fixed period of 50 years from the end of the year first published (e.g. made and died 1958, first published 1980, copyright to 31 December 2030). If the photographer died less than 20 years before first publication, copyright ran for the photographer’s lifetime plus 70pma (e.g. made and died 1958, first published 1977, copyright to 31 December 2028).
Photographs made before 1 June 1957: extended or revived copyright
For photographs made before 1 June 1957, previous copyright law determined the length of copyright according to the year when the photograph was made (not whether it had been published). For photographs made before 1 June 1957 copyright ran for a fixed period of 50 years from the end of the year made. However, under the new UK-EEA harmonised rules copyright in these photographs from the first half of the 20th century may have been extended (if made on/after 1945) or revived (if made before/by 31 December 1944) in the UK from I January 1996 to run for the photographer’s lifetime plus 70pma, and may still be current at the time of writing (2019).
Examples of extended UK-EEA copyright if made from 1945 to 31 May 1957: died 1949, copyright to 31 December 2019; died 1989, copyright to 31 December 2059; still alive, copyright runs from the date made for lifetime plus 70pma. These post-1945 works never lost UK copyright under the old UK law, but now have 70pma under the new UK-EEA harmonised law.
Examples of revived UK-EEA copyright if made before/by 31 December 1944: made 1918, died 1949, old UK copyright to 31 December 1968, but the new UK-EEA harmonised law revived copyright from I January 1996 to 31 December 2019; made 1944, died 1989, copyright revived from 1 January1996 to 31 December 2059; still alive, copyright revived from 1 January 1996 for remainder of lifetime plus 70pma.
Although the extension and revival rules produce the same or similar results, the distinction is significant. Photographs made before/by 31 December 1944 were copyright-free in the UK from 50 years after the end of the year of their making until 1 January 1996, during which period they may have been commercially exploited by the ‘public domain’ without infringing copyright. The new UK-EEA harmonised law reviving copyright in such works also enacted certain safeguards: anything done to such a work while copyright-free before I January 1996 did not infringe its copyright; nor does violation occur for anything done after that date, if the revived copyright owner cannot be ‘reasonably ascertained’.
Compulsory licensing of revived copyright
The owner of revived copyright is required by the new UK-EEA harmonised law to grant a ‘licence of right’ to would-be users of the photograph. This means that if a would-be user gives to the revived copyright owner reasonable notice of intention to commercially exploit the work and the starting date, a licence to do so must be given. The revived copyright owner is allowed to ask for ‘payment of such reasonable royalty or other remuneration as may be agreed or determined in default by the UK Copyright Tribunal’. Even if payment has not been agreed or decided by the Tribunal, would-be users’ acts would not be violations of the revived copyright. Put another way, the revived copyright owner has no legal right to halt a commercial exploitation after notice to do so has been given.
Publication Right: copyright-free photographs
Under separate legislation, a new Publication Right was introduced into UK law on 1 December 1996 and applies to works, including old photographs, where copyright has expired and such works or copies have never been published or communicated or exhibited to the public. If such works are published for the first time by a UK-EEA citizen in that territory, the publisher automatically acquires a Publication Right that runs from first publication for 25 years to the end of that publication year. This new intellectual property right is equivalent to copyright, and gives the owner the exclusive right to reproduce/publish the image, and/or to prevent any such unlicensed exploitation of it by others.
In relation to old photographs it may be wise and prudent to consider whether they were made by photographers who died before/by 31 December 1948, have never been published, and are now out of copyright: they may be protected by Publication Right for 25 years from the end of the year first published by the Publication Right owner (the person who owns the ‘physical medium’ in or on which the work is embodied or recorded).
Photographs: copyright ownership
Unlike legislative changes to the length of copyright that require (sometimes fiendishly complex, as we have seen) transitional provisions for older works to ensure continuity of rights into any new legal framework, ownership of copyright invariably remains unchanged and is determined today by older laws applying at the date when a copyright work was made. Thankfully, UK ownership rules have stayed almost the same throughout the 20th century to date: the taker/maker is the copyright owner, unless made under a commission or employment contract.
If commissioned, the copyright owner is the commissioner, unless the commission contract explicitly states otherwise (specifying perhaps that copyright will be owned jointly by commissioner and photographer). If not commissioned, the taker/maker owns the copyright – but not if the maker was an employee who took a photograph as part of their job, in which case the employer would own the copyright, unless the contract of employment explicitly stated otherwise.
However, there is one key difference for photographs taken on/after 1 June 1957 and before/by 31 July 1989: if an employee of a newspaper or magazine or similar such periodical took a photograph as part of their job for the purposes of publication in that periodical, the employer owned copyright only for publication purposes, and the taker/employee owned copyright for all other purposes.
If the UK exits the EU without a deal, UK legislation has been promulgated to ensure continuity of UK intellectual property laws and rights including artistic copyright. UK Government has published useful guidance explaining its plans and preparations: ‘The UK and other EU member states are party to the main international treaties on copyright … These rules underpin the copyright legislation in all member states of the EU and do not depend on the UK’s membership of the EU.’ This means that UK authors will continue to benefit from the UK’s membership of the worldwide Berne Convention for the Protection of Literary and Artistic Works (1886 and revisions to date).
However, the guidance further explains: ‘There is also a body of EU law on copyright and related rights that goes beyond the provisions of the international treaties, including several cross-border copyright mechanisms. These mechanisms are unique to the EU and provide reciprocal protections and benefits between EU member states.’ These mechanisms include an EU law directly applicable to all Member States that allows ‘cultural heritage institutions established in the EEA to digitise orphan works in their collection and make them available online across the EEA without the permission of the right holder.’ Works without documented ownership provenance are orphans and may include orphan photographs.
A risk of a no-deal Brexit is that ‘UK-based Cultural Heritage Institutions that [currently] make works available online in the EEA under the [digitising] exception may be infringing copyright.’ UK institutions are therefore advised ‘to consider whether they need to remove works from their websites or limit access to content on a geographical location basis in the EEA.’
Apart from copyright orphans, it appears that the length and ownership rights explored above will continue after a no deal Brexit, because all such rights have already been enacted into UK law.
The visual art world has not yet reached an equivalent situation to the music and film and publishing industries in terms of recognising the significance of copyright. However, as we have seen above, there is an extensive labyrinth of UK-EEA copyright provision, which is best navigated with knowledge and care to avoid unexpected difficulty and risk.
© Henry Lydiate 2019