copyright on old photographs ?

[ricstew]

Hi all,
If I wanted to use an old image.....(taken before 1955 by an unknown or deceased photographer......I have done some research! ) but it is a very iconic image that is now held by the Police museum....would the police museum be the one to contact concerning use? It is the only image of this person bar the ones floating around on the net....and the copyright should have passed.....

I dont want to use the image per-say but turn it into a line drawing for another image...if that makes sense?
I also dont want to turn it into something bigger than Ben Hur!
cheers
Jan

[kiwi]

Based on this you should be fine

http://www.ag.gov.au/www/agd/agd.nsf/page/copyright_howlongdoescopyrightlast

[Kym]

IANAL ... but 1955 was life of Author + 50 years http://en.wikipedia.org/wiki/Copyright_Act_1911

You need to determine the author and the date they died. For unknowns it is much harder to determine (c)

[kiwi]

Not according to my link, theres s specific paragraph there on photos, unless I'm reading it wrong

"The term of copyright protection for photographs taken before 1955, regardless of whether the author has since died or is still alive, has expired"

[Scotty72]

I had cause, in a previous life as a cycling advocate, to use an old photo.

Whilst my memory may be flawed, my advice was that copyright expires 50 years after the death of the original author. If the author is dead, you must seek permission from the estate (or new copyright owner). If the photo was taken prior to 1955, it is already public domain (for photographs) regardless of the author's being alive or dead.

Scotty

[ricstew]

Sounds like the same link I read Kiwi.
So in theory cause the photo was taken before 1865, the photographer is probably deceased, it has been in the public domain for more than 50 years.......I should have ticked all the boxes.....
but it is my responsibility and no legal advice has been accepted!

cheers
Jan

[Scotty72]

Sounds like the same link I read Kiwi.
So in theory cause the photo was taken before 1865, the photographer is probably deceased,

Probably???? I think you can take this certainty to the bank :D

Scotty

[kiwi]

For once thsi year Scotty, I think there's some certainty on a "Business of Photographt" thread :xmas31:

[Longshots]

Without making this bigger then Ben Hur - while it is an interesting point of discussion, and often misunderstood.

According to the lawers specialising in this:

I'm afraid that all info to date is a bit flawed - here is the answer from the Australian Copyright Council

http://www.copyright.org.au/find-an-answer/browse-by-what-you-do/photographers/


Directly from the Copyright Council FAQ, in response to "How Long Does Copyright Last ?"


1.6.2008

If the photograph was taken before 1955, the copyright has expired.



If the photograph was taken after 1954, copyright usually lasts for 70 years from the year the photographer died if the photograph was published in the photographer’s lifetime.



If the photograph was first published anonymously or under a pseudonym, however, copyright lasts for 70 years from the year of first publication.



If the photograph was first published after the photographer’s death, copyright lasts for 70 years from the year of publication.



If the photograph has never been published, copyright can last indefinitely

And I'm only quoting them, so please argue with them :)


For future reference people might like to make a note of this essential information PDF explaining copyright and how it relates specifically to photographers (its the best time investment any photographer can make - just 11 pages of reading):

http://www.copyright.org.au/admin/cms-acc1/_images/3525355584d00168563bdf.pdf

[kiwi]

:D I knew it

so, youd have to check when first also check when first published + 70 years

[Scotty72]

Without making this bigger then Ben Hur - while it is an interesting point of discussion, and often misunderstood.

According to the lawers specialising in this:

I'm afraid that all info to date is a bit flawed - here is the answer from the Australian Copyright Council

http://www.copyright.org.au/find-an-answer/browse-by-what-you-do/photographers/


Directly from the Copyright Council FAQ, in response to "How Long Does Copyright Last ?"



And I'm only quoting them, so please argue with them :)


For future reference people might like to make a note of this essential information PDF explaining copyright and how it relates specifically to photographers (its the best time investment any photographer can make - just 11 pages of reading):

http://www.copyright.org.au/admin/cms-acc1/_images/3525355584d00168563bdf.pdf


Oh yes, I do recall the 50 / 70 issue now you bring it up :):) The Kindle book reader had a problem with that too which got Amazon.com into some bother :eek:

Still, pre-1955 is certain is that it has expired.

[ving]

seems the same as music... 50 years after the death of the composer.

[ricstew]

No wonder people get confused :) So if the pic was taken before 1865 ( 2010 - 1865 = 145 .......thats years.) I think I am pretty safe. I am gonna assume the creator has been dead for a looooong time and I am pretty sure it was first published in the Sydney Gazette possibly around the same time.....
cheers
Jan

[Longshots]

Yep sure is confusing when we're talking about this type if historical piece. If its important, I'd suggest a quick email to the copyright council for some guidance.

[Longshots]

seems the same as music... 50 years after the death of the composer.

Thats because its the same act that the decision would be based on :cool:

[Scotty72]

No, it's not the same. That is the assumption that got Amazon into trouble.

It is death plus 70 years (for a photo published within the author's lifetime).

For photos taken pre-1955 (regardless), they are public domain already.

Scotty

[ricstew]

Its probably only important to me Longshots but I want to do it correctly so I think I will fire off that email......

[Redgum]

And don't forget getting permission to alter the image is a different issue. And giving credit where known.

[ricstew]

Ah fooey Redgum........who do I approach about using such an image? The original is kept at the police museum.....( I am assuming its the original ) I wonder if they have someone who would know this stuff....

[Longshots]

No, it's not the same. That is the assumption that got Amazon into trouble.

It is death plus 70 years (for a photo published within the author's lifetime).

For photos taken pre-1955 (regardless), they are public domain already.

Scotty

Scotty, my point was that copyright is protected by the one single Copyright Act in Australia. Which is what I actually said, that "its the same act that the decisions" are based on.

And Amazon situation that you're referring to is about the issue of United States of America law system, and their copyright act. People often confuse situations in the States with their own country. We are governed by Australian law here.

For the record, I was talking about Australian Copyright, and not any other country.


I'd repeat my earlier advice and seek guidance from the Copyright Council - that's why they're there :) to give the correct advice relating to Australian Copyright.

[Longshots]

No, it's not the same. That is the assumption that got Amazon into trouble.

It is death plus 70 years (for a photo published within the author's lifetime).

For photos taken pre-1955 (regardless), they are public domain already.

Scotty

Scotty, my point was that copyright is protected by the one single Copyright Act in Australia. Which is what I actually said, that "its the same act that the decisions" are based on.

I'm afraid that your advice ("for photos taken Pre 1955) is quite wrong.

And the Amazon situation that you're referring to is about the issue of United States of America law system, and their copyright act. While Australia is signatories to the Berne Convention, the Australia Copyright Act (which btw is far better protection than our American friends receive), is what guides the issue of copyright in Australia. And there is only one copyright act in Australia, to which all issues of copyright applies. The Copyright Act 1968


http://www.ag.gov.au/www/agd/agd.nsf/page/Copyright

People often confuse situations in the States with their own country. We are governed by Australian law here.

However, its worth noting that the 2005 free trade agreement with the US, adds some other issues to Australia's laws, (note adds, we cant, it seems, have our rights reduced) like the interesting "plus 70" rule, which is something that can be lazily paraphrased to this:

"
In short, this can be interpreted as:

* Any work that was published in the lifetime of the author who died in 1956 or earlier, is out of copyright.
* Any work that was published in the lifetime of the author who died after 1956, will be out of copyright seventy (70) years after the author's death.

Also any work that was published after the death of the author, will be out of copyright seventy (70) years after the year of first publication. Unpublished works hold copyright indefinitely.

Photographs, sound recordings, films, and anonymous/pseudonymous works are copyright for seventy (70) years from their first publication. Television and sound broadcasts are copyright for only fifty years after the year of their first broadcast (though the material contained in the broadcast may be separately copyrighted). Most other works are also dated from the first publication/broadcast/performance where this occurred after the author's death.

The period of seventy (70) years is counted from the end of the relevant calendar year."

And the word to stress is "interpreted". The thing to remember is that if its legal, then its not yes or no, its interpreted.


So, for the record, I was talking about Australian Copyright, and not any other country.


I'd repeat my earlier advice and seek guidance from the Copyright Council - that's why they're there :) to give the correct advice relating to Australian Copyright.


And Ricstew, Copyright Council, will probably respond quicker and easier, if you ring them and speak to one of their specialist consultants. Like any legal organisation, my experience with them is that, typically a legal issue, putting a definitive point in writing is something that they're not exactly speedy about. Speaking to them though, and they may be able to guide you to a point in their website that gives you the written answer you may want.

I always think that this discussion is interesting, because it always highlights people who are utterly convinced that we're governed by the US. We're not :) While we're signatories to the Berne Convention:

http://www.ag.gov.au/www/agd/agd.nsf/Page/Copyright_IsAustraliancopyrightmaterialprotectedoverseas

So its always going to be an interesting discussion, and I hope an enlightening one for many. The more this issue is discussed, the better chance people have of gaining an insight into this area.

[Redgum]

Ah fooey Redgum........who do I approach about using such an image? The original is kept at the police museum.....( I am assuming its the original ) I wonder if they have someone who would know this stuff....
The QPS (Queensland Police Service) are very helpful through their head office (Forensic Division) but this may be different in each State. I use thousands of old still images each year in my historical documentaries and in most cases engage the State authorities in the production primarily for the purpose of access to resources and copyright issues (film footage as well). I find in many cases the owner is more than willing to "allow use" and can't remember ever having a refusal (in this country). Mind you the arrangement is always contractual, you need to pay something (money or in kind) for the use of the resource or asset. If you try to acquire something for nothing or without good purpose the barriers will be high.

[Longshots]

Potential help for you - sometimes these places can assist, or can direct you to the right place:

in NSW :
http://www.records.nsw.gov.au/

NSW State Library:
http://www.sl.nsw.gov.au/


in Qld:
http://www.archives.qld.gov.au/

and State Library of Queensland, specifically have this facility:
http://www.pictureqld.slq.qld.gov.au/

in Tas:
http://www.archives.tas.gov.au/nameindexes

[Chris Michel]

Just curious does this also apply to art work ( paintings ) ?????

[Scotty72]

Scotty, my point was that copyright is protected by the one single Copyright Act in Australia. Which is what I actually said, that "its the same act that the decisions" are based on.

I'm afraid that your advice ("for photos taken Pre 1955) is quite wrong.

Well, if you don't mind, I will take the advice of the Copyright lawyer our organisation sought advice from, over you learned internet search. Even the page you link to clearly contradicts your point (but, hey, never let the facts get in the way of a good argument).


The term of copyright protection for photographs taken before 1955, regardless of whether the author has since died or is still alive, has expired. The life plus 70 years term for artistic works applies to all photographs taken after that time. I'm not sure that this statement could be any clearer - pre-1955 photo's copyright has EXPIRED , regardless.



And the Amazon situation that you're referring to is about the issue of United States of America law system, and their copyright act. While Australia is signatories to the Berne Convention, the Australia Copyright Act (which btw is far better protection than our American friends receive), is what guides the issue of copyright in Australia. And there is only one copyright act in Australia, to which all issues of copyright applies. The Copyright Act 1968


http://www.ag.gov.au/www/agd/agd.nsf/page/Copyright

People often confuse situations in the States with their own country. We are governed by Australian law here.

I know. I also know when people misconstrue what others say. I was not saying US law applies here. I WAS saying that sometimes, US law is confused with Australian law. In other words, what you said. But, I guess why acknowledge an agreement when you can dredge up an argument?




"
In short, this can be interpreted as:

* Any work that was published in the lifetime of the author who died in 1956 or earlier, is out of copyright.
* Any work that was published in the lifetime of the author who died after 1956, will be out of copyright seventy (70) years after the author's death.


Where are you getting this from? Certainly NOT from that link you posted - it says nothing of the sort!
[QUOTE]


Anyway, any photo published pre-'55 is ok.
Scotty

[Longshots]

Scotty

I dont rely on the just the internet search for my information. :)

And I am trying to help, based on what knowledge I have.

Mine is gathered through 20 years experience in Australia, lobbying with the Australian government for changes to the copyright act, and professional direct interests in relation to my photographic work :th3:

So ta, for the humour, but I'm not just a google junky.
And while I dont mind if you want to take the advice of your lawyers for your organisation (which is ?), I will always prefer to suggest that no matter how many times someone wants to repeat something, that the best and clearest advice is - as I said in the beginning - going to be that from the Copyright Council.

I posted a couple of links, and while one was for the Copyright Act, the other was for the US Australia Free Trade agreement in 2005, which as I said, had you read it in detail, and fully, I cant really see how you can miss the adaptation to the change in what copyright in this country protects?

And while you are indeed quite correct in repeating the quote and indeed highlighting in caps the word expired, unfortunately you then need to quote the other link/reference which is that pesky little US Australia Free Trade Agreement 2005, which depending on which lawyer you want to seek advice from, is going to increase the issue of copyright, pre 1955. That's my point which I'm clearly failing to communicate effectively :)

And while enjoying you humour of your quote "hey, never let the facts get in the way of a good argument", I'm afraid that with all things legal, there is no clear B&W, Yes or No, and this is a classic case of something being interpreted.

The only detail that is really important is that all points need to have been considered, and the Free Trade Agreement (as quoted) does change things for us.

For whats its worth, and simply to give some reason for my interest in this subject, I was part of the lobby group that successfully changed the Copyright Act in 1998. I have been, and still am involved for over 20 years on this subject and how it specifically relates to photography. I am reasonably well informed about the fairly major differences between the Australian Copyright Act, and how it differs with the US. I do not simply rely on searching Google for answers. And the reason I quoted you, and highlighted the difference between nations copyright situations was your direct comparison with the issue that Amazon faced - which was based on US law. But on that part, perhaps we're agreeing with each other, but something is getting lost in the typing :) ? :cool:

By the way, I quoted partially, and attempted to summarise what that link regarding the Free Trade Agreement does specifically state about how it has affected and increased the scope of Australian Copyright. If you want to specifically go to that link, then you will I assure you read what was summarised.

But to assist, here is yet another link - which is a 2 page PDF, and it clearly says what I summarised :

http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/%28CFD7369FCAE9B8F32F341DBE097801FF%29~9+MARCH+Fact+sheet+extension+copyright+term+9ii05.pdf/$file/9+MARCH+Fact+sheet+extension+copyright+term+9ii05.pdf

So with respect to you, both of us could be right. Best advice is - I repeat again, sought from Copyright Council, because there would appear to me to be no direct black and white answer here.

But hey, its just a specific question with an endless amount of answers. Unfortunately its also one of those can of worms issues that can be very expensive if the wrong decision is made.

[ricstew]

ok so I found the pic which is out of copyright. It ( or an electronic copy ) is held at the National library. They have a link to ask permission to use the image. No other info is available at this stage but I am trying to cover all bases! Many thanks for everyones help
cheers
Jan

[Longshots]

Sounds like a good outcome Jan :)

[ricstew]

I hope so Longshots but like everything at this time of year I will have to wait and see :) It will be a great project for me :)