Copyright sigh

Cheers James,

It was just a general query, although it was sparked by a particular image I have seen in two different places credited to different people / institutions.

It all makes a bit more sense now…

Brings in a third element – accredittation – many people collect or obtain images without neccessarily having copyright, they then pass these of to others to use and are creditted (Sometimes as ‘DAF Collection’, ‘via DAF’, ‘Crown Copyright via DAF’ as well as just ‘DAF’ Doesn’t mean they own the copyright, it usually just indicated where the author has obtained the image from.

My name has appeared in a couple of books under just those circumstances!

It all makes a bit more sense now…

It’s taken me years to get to grips with it on just a practical basis, and I’m still learning!

Cheers James,

It was just a general query, although it was sparked by a particular image I have seen in two different places credited to different people / institutions.

It all makes a bit more sense now…

Thanks,

Jim

Further question, just because I’m curious. If an image is out of copyright, then it can’t be placed back under copyright? So therefore if I obtain a print of an out of copyright image, I am just as entitled to charge someone else to use it, as the institution I got it from?

1. Don’t confuse ‘copyright’ with ‘reproduction rights’.

2. Copyright expires. There are cases where it can be re-asserted, or a change in law or jurisdiction means a new copyright applies, but generally it’s a one-way process.

3. Generally if you buy an image from, say the IWM or RAFM, then part of the the agreement you have with them means you can’t sell it on for future reproduction as yours (under ‘reproduction rights’).

4. However if you buy (what happens to be) the same image from a rummage sale, and it doesn’t have any obvious ownership you can ask me to pay you to use it in my book or publication. Another reason to stamp or tag images.

5. General guidance on the internet is very general. Hypothetical and generalist questions get the answers they deserve; for appropriate advice, be specific and ask a specialist.

HRH

Further question, just because I’m curious. If an image is out of copyright, then it can’t be placed back under copyright? So therefore if I obtain a print of an out of copyright image, I am just as entitled to charge someone else to use it, as the institution I got it from?

Couple of points to add. (UK Law)

– Even if a photo is out of copyright, if it is published in a book/magazine etc it becomes copyrighted in the format it is published in (i.e. in it’s presentation in that book)

– The law relating to what might be called ‘Fair Dealing’ has changed (in the Uk at least) in recent years.

– Criminal Infringement (The one I know most about!) – originally introduced in the Copyright, Designs and Patents Act 1988 S.107, and relates to someoen in the course of his business infringing certain types of copyrights. Note that this section requires that the person knows he is breaching copyright.

The IPO is always a good source for the up to date situation:

http://www.ipo.gov.uk/types/copy.htm

Way back when, in the early 80s when I ventured out looking for Spitfire XII info, I was told by a former Lanc pilot turned aviation writer that there were two kinds of folks I’d run into. Those willing to share the wealth, and those who wanted to claim it for their own and keep it hidden.

He was of the share the wealth crowd and gave me my first ‘original’ photo of a Spit XII as well as pointing me in lots of directions and putting up with a first timer asking dumb questions.

Seems to me that’s the only way to go as we’re trying to pass on the history not hide it. Thankfully my experience has been one of dealing with all kinds of folks willing to share the history. I know I’ve done my best to pass that on.

In terms of what photos belong to who, I’m afraid the genie is out of the bottle. All you have to do is look at any number of books, e-bay, the web or wherever and you’ll see well known photos credited to any number of different people as their own.

I don’t have an answer for that bit, but I figure it’s better that people are seeing them, then having them hidden in someones file cabinet.

I think you are absolutely right. I want to tell, to share, to set young minds ablaze with this stuff. What good would I be if I kept 70 year old photographs locked up in a closet somewhere?

… Those willing to share the wealth, and those who wanted to claim it for their own and keep it hidden. …

A good point. I’ve certainly been lucky enough to have enormous help from all sorts of people, including museum professionals and archivists as well as collectors, ex-service people and so forth. Rarely have I had a problem.

However that help brings, I think, a responsibility to respect their wishes and likewise not to abuse trust or offers. It’s important to credit material properly, and to thank those who’ve helped as appropriate – in writing, personally and financially where appropriate. I’ve always tried to get it right, and been chastised, rightly, when I haven’t.

Providing copyright details on material smooths that process and enables such restitution and thanks as well as avoiding embarrassment – the law providing a framework rather than a threat here.

Regards

Way back when, in the early 80s when I ventured out looking for Spitfire XII info, I was told by a former Lanc pilot turned aviation writer that there were two kinds of folks I’d run into. Those willing to share the wealth, and those who wanted to claim it for their own and keep it hidden.

He was of the share the wealth crowd and gave me my first ‘original’ photo of a Spit XII as well as pointing me in lots of directions and putting up with a first timer asking dumb questions.

Seems to me that’s the only way to go as we’re trying to pass on the history not hide it. Thankfully my experience has been one of dealing with all kinds of folks willing to share the history. I know I’ve done my best to pass that on.

In terms of what photos belong to who, I’m afraid the genie is out of the bottle. All you have to do is look at any number of books, e-bay, the web or wherever and you’ll see well known photos credited to any number of different people as their own.

I don’t have an answer for that bit, but I figure it’s better that people are seeing them, then having them hidden in someones file cabinet.

With respect, pictures such as some of the ones mentioned should be encouraged to be passed on, regardless of the owner, hopefully then, more young people like myself will get into aviation!

Something that I get puzzled by.

Image is in the collection of a National UK Museum, WW2 era that was taken by an official RAF photographer.

Same image is also in a book, credited to a third party. I suspect it is the case that third party was maybe in the RAF at the time and received one of the prints for whatever reason.

Is the image now out of copyright?

See my earlier post regarding the difference between ‘reproduction rights’ and ‘copyright’. That’s the answer.

I love the way that people stick pics on the Internet covered by copyright , & expect others not to take copies of it. I expect there is some sort of staute of limitations on pics , the same as recorded music. No matter what it is , if you dont want people to copy it —DONT POST IT ON THE INTERNET!!

That’s not a useful contribution.

I gather that this Fair Dealing is how some magazines manage to side-step paying for reproducing pictures, especially in the world of cinema.

No. ‘Fair Dealing’ is a provision in the US, English (and I presume Scottish) Law where it enables people to quote sections of writing for the purposes of criticism and discussion. It gets trickier with ‘whole works’ such as photographs and so forth.

In film and other areas it’s common to get free material for publicity; I have a wodge of stuff from Memphis Belle which was intended to be reproduced to publicise the movie.

Your example has nothing to do with cinema publicity or fair use, but is a standard case whereby an author may not be able to find the copyright holder of the image and uses it anyway. You can ask for acknowledgement in future editions, as you have, and a fair payment for use, or waive it.

The lesson here is to ensure your material is always marked as copyright (if it is) and have your contact details on it so an author can contact you for permission. By not doing so, it was reasonable for the author to assume you had waived repro rights. To finish, in dispute (I’d hope you’d reach an agreement first!) you would be entitled to a fair payment for use, but no punitive damages because the author was unable to contact you before publication due to your not marking the material.

The answers are out there, it’s not as hard as it seems when people skim the advice, as here, but finally it is always YOUR responsibility to get right or potentially face consequences.

HTH,

Bush lawyer Mark, how original.

Thanks Keith but I’m not quoting ownership of the term, or claiming copyright to it.

If one actually kept up with the law rather than reproducing slabs of legislation off the internet one would know that the Copyright Council of Australia currently considers that if there is loss loss incurred by the unauthorized use of copyright material then there is no breach of copyright.

Actually Keith thats a bit rich- its knowing and referring to “current legislation” that constitutes “keeping up with the law” not what an independent not for profit organisation might “currently consider” or more correctly what “you” might interpret them to “currently consider”?

The reason for my post was to debate the issue of a persons legal rights and access to remedy under the law, by quoting legal opinion from a credible source (The Australian Attorney Generals office), not simply ones personal opinions or interpretations, the quoting of actual references seems quite relevent to that.

Perhaps you would care to quote and reference where “you” are sourcing the Copyright Council’s “current consideration” that “no breach occurs if no loss occurs”, to evidence it and contrast it to the advice I quoted from the Australian Attorney General’s office? in the post above (or more interestingly – the Copyright Council’s own published and quoted fact sheets below?)

You are quite correct that there are many legal ways in which copyright material can be used without infringing the rights of the owner and being in breach of the law, but its not simply related to the owner suffering a financial loss, and demonstrating a loss as you have implied.

Its simply a situation of suffering an infringement and breach under the law, and demonstrating it, and then incurring the costs to pursue the matter legally to defend and enforce your copy “rights”, and seek remedies, and in that way not so different to defending against an infringement of trademark, patents and design registration via legal action, ie spend the money – and win or loose on the strength of your case.

But in anycase lets see what the Copyright Council of Australia actually have to say? as directly quoted from “their” online fact sheets, rather than just “your” interpretation?

When is copyright infringed?
The Copyright Act gives copyright owners a number of exclusive rights. These rights relate to materials such as text, artistic works, musical works, computer programs, films and sound recordings, and include the right to reproduce copyright material and, for some material, to perform or screen it in public and to publish it on the internet.

Generally, copyright is infringed if copyright material, or a “substantial part” of it, is used without permission in one of the ways exclusively reserved to the copyright owner.

No mention above about a financial loss being required to occur, to limit copyright breach or to achieve a remedy under the law?, obviously I’m not reading the same part of their website that you are?

So if there is a breach, lets see what they say about remedies pursued legally through the courts?

Remedies and penalties

Civil remedies
Remedies the copyright owner may be able to obtain against a person who has infringed their copyright include “damages” or an “account of profits”. “Damages” is a sum of money intended to compensate the copyright owner for money lost, or spent, in respect of the infringement and will vary with the circumstances. An “account of profits” is the profit made by the infringer in selling the infringing copies.
Courts may also order the infringer to “deliver up” all remaining infringing copies, and may award additional damages or an injunction prohibiting the infringer from continuing to infringe copyright.

Criminal penalties
In some circumstances, infringement of copyright is a criminal offence to which fines and jail terms may apply. The criminal provisions generally apply to commercial piracy, and are used particularly in relation to infringements of copyright in records, videos and computer software.

Hmm, seems to suggest that both civil AND criminal penalties can apply?

Taking out an injunction when you have not suffered a loss and assuming a court would grant one; seems like an absolute waste of money that achieves what ???? Stop Uncle Heinrich’s Fw190 pics from be plastered all over the internet. There’s a pressing issue confronting the human race.

Yes well lets first again see if the Copyright Council thinks an injunction is possible?

Interlocutory relief

Interlocutory orders are orders that are made by a court after a case has been started but before it is finalised. Interlocutory orders are about such things as preserving the status quo, obtaining evidence, or preventing further damage to the claimant.

Ex parte orders are orders made as a result of an application made by one of the parties, generally without the knowledge of the other party or parties

Final orders

Final orders are granted after the case has been heard, and put the courtʼs decision about the issues in dispute into effect. In deciding what remedies to grant where infringement takes place online, a court can take likely infringements into account as well as proved infringements if, taken
together, the infringements were on a commercial scale.

A court can award a number of different types of final orders, including:

Damages

This is payment of money to compensate for the infringement. Damages are often based on the amount that the copyright owner would have been able to charge for the use of the material.

Sometimes, a court may award additional damages if the infringerʼs conduct has been “flagrant”.

An account of profits

This is payment of any profits that the infringer has made from using the work. Generally, a copyright owner asks for either damages or an account of profits because a court cannot award both.

Delivery up of the infringing articles

A court can also order the infringer to deliver (give) any infringing articles or “device” used to make the infringing articles to the copyright owner. If the infringer is not able to do this (for example, because the articles have been sold), he or she may be ordered to pay “conversion damages”.
These damages relate to the value of the infringing articles, but may be reduced by taking into account costs incurred by the infringer such as manufacturing costs.

An injunction
This is a court order that usually prohibits a party from doing something. In copyright infringement cases, an injunction will usually be an order that prohibits the infringer from continuing to infringe.

So it seems the Copyright council actually indicates legal action, including an injunction, can be undertaken “without” an actual loss being incurred, and simply because an infringement or breach has incurred. (as against that purpose or level of use that is permitted under the law).

Obviously I must have missed their “considered advice” that you are referring to?, or is it possible “your” interpretation of the law, and “your” interpretation of the Copyright Councils advice on the matter – is wrong?

http://www.copyright.org.au/find-an-answer/browse-by-keywords/

see fact sheets on:
Infringement – What can do? – (G052)
Infringement – Actions, Remedies, Offences & Penalties (G056)

If you actually read my first post, I did agree that the cost of legal action may far outway the financial value someone might ascribe to protecting their rights of ownership of their “happysnaps” or even “Uncle Heinrich’s Fw190 pics” from be plastered all over the internet.

As with all legal action there can be significant costs, but sometimes people take legal action on principles alone, to protect their rights, and that is their choice, and right, regardless of any other pressing issues facing the human race.

And yes, many people continually breach and infringe copyright on the basis that the owners will not, or cannot afford to take action to stop them.

regards

Mark Pilkington

As for reproduction rights, James; under Copyright Law there is the section on Fair Dealing which states that 10% of any given work may be reproduced without authority for the purposes of research or review. One could argue that posting on this forum is a form of research. You should attribute the author/artist/photographer but if for some reason you don’t the remedy available to the originator of the work is an apology.

I gather that this Fair Dealing is how some magazines manage to side-step paying for reproducing pictures, especially in the world of cinema.

Some years ago I was quite surprised to find one of my photographs included in the late Desmond Llewelyn’s biography – at some time I had sent him copies of photographs that I had taken of him, but as I never expected them to go any further, did not include my copyright sticker on the back.

When I met his biographer, I asked her about it and it seems that he gave her a box of photographs and she happened to pick one of mine. More pleased than anything else, I just asked her to acknowledge my copyright on any further printings of the book – sadly there doesn’t appear to have been a second edtion.

I have had photographs published in other books, and I always prefer my copyright to be acknowledged with the photograph although sometimes this doesn’t happen, and I’m just listed with other contributors at the back (or occasionally the front), but at least I’m acknowledged – I have never taken pictures with a view to profit and am happy with a credit.

Something that I get puzzled by.

Image is in the collection of a National UK Museum, WW2 era that was taken by an official RAF photographer.

Same image is also in a book, credited to a third party. I suspect it is the case that third party was maybe in the RAF at the time and received one of the prints for whatever reason.

Is the image now out of copyright?

If the image is out of copyright, am I doing anything wrong by copying from the book?

Hasten to add that I haven’t, just seems dodgy that more than one party ‘owns’ the image.

I don’t know if this is of interest but I think this is somewhat related.

As it was explained to me by in an three way exchanged between myself, someone at HMSO (or whatever it’s called now) and the MOD any photography taken by a member of the armed forces while on duty, using service equipment or on a specific task belongs to the crown. And according to definition Crown Copyright expires 50 years after said picture is fisrt published.

However, sometime in the last 20 odd years the Goverment decided that although Crown Copyright had expired on many photos and that Crown Copyright cannot (technically be revoked) that they had commercial value and thus decided we all have to pay for them. This was achieved my transferring them all to the care of places like the IWM who charge reproduction feels for the pictures from their archives. I may be a wee bit off but thats the gist of it.

Now, many photos were released by the RAF for use in magazine, newspapers, etc. during WWII and the IWM is not the only place these can be found. Technically if you are lucky enough to find a copy of an original Air Ministry issued press photograph with an dated A.M. stamp on the back which proves it is more than 50 years old then it is out of Crown Copyright and you can reproduce it as long as you cite it as belonging to the Crown.

IWM can only come down on you if you reproduce a picture sourced from their collection. All their photos are labelled and many “original” WWII photos you’ll find on on-line auction sites are actually copies produced by the IWM.

When I queried this fact with the HMSO and IWM and they reluctantly confirmed this. I also heard from an author who did just this – the IWM contacted him asked him about one of “their” photos he used and he stated quite categorically he had used and original A.M issued photo from his private collection and was willing to show them. They backed off and he never heard from them again.

However, I would urge anyone to double check themselves – don’t take my word for it. They may of found a way to close the loophole.

As for reproducing a Crown Copyright photo from a book, grey area, but technically I think you’d fall foul of copyright and derivative works. You’re doing it for commercial gain and your making a straight duplicate of the photo so you are not building on or making a new original work derived from it.

Again, all the above is based on conversation a few years ago with the HMSO, MOD and IWM and things may of changed. I am not a lawyer! 😀

I love the way that people stick pics on the Internet covered by copyright , & expect others not to take copies of it. I expect there is some sort of staute of limitations on pics , the same as recorded music. No matter what it is , if you dont want people to copy it —DONT POST IT ON THE INTERNET!!

Something that I get puzzled by.

Image is in the collection of a National UK Museum, WW2 era that was taken by an official RAF photographer.

Same image is also in a book, credited to a third party. I suspect it is the case that third party was maybe in the RAF at the time and received one of the prints for whatever reason.

Is the image now out of copyright?

If the image is out of copyright, am I doing anything wrong by copying from the book?

Hasten to add that I haven’t, just seems dodgy that more than one party ‘owns’ the image.

You need not be the actrual photgrapher to own the rights.
Someone could buy the negs (or rights) from the photgrapher.

Perhaps that’s what happened in this case.

I can with 100% certainty say that this is not the case. My guy didn’t buy the negs, as I know for a fact the source would not let him. I know why this guy would put these fake copyrights on them, but it’s a bit to revealing to some so I’m not gonna go down that road. Maybe he actually did buy the rights from the veterans, but wouldn’t that be just…rude? It’s just a big sigh, and especially since I’m involved with educational research, pedagogy and the mission of telling these stories to generations to come. How can we really when people do these sort of things..

Keith,
As far as I’m concerned, it’s about protection, not after the fact fights. The point for me as a writer and editor is that there is protection of my work (writing or photography) for the most part, ensuring that others don’t usually try to profit from it. As we’ve discussed before, fines and even prosecution are not, actually what’s needed – for the most part with IP, the fact that they exist guides that element of civilised sharing well enough.

As for reproduction rights, James; under Copyright Law there is the section on Fair Dealing which…

…is actually different in the UK, US and Australia, and it’s something I have to deal with professionally – but I’m not going to offer general advice on that here, it has too many variables. (Your statement in actually incorrect for Australian law, you might like to check if you plan to use it.)

This is something that has puzzled me for some time. I have had published both photos from the original photographer that have given their permission but plenty by unknown photographers. I occasionally buy original photos from ebay, generally from dealers, that I may wish to publish in the future? Who own the copyright for these? I also have several from a deceased photographer, does the copyright pass onto his family for a period?

Generally, if you have permission from the copyright holder (a private photographer) you are good; however if the photos they supply are taken as part of the job while working for the military or government, say, then their permission is irrelevant. Purchases on e-bay give no copyright component. Great War era stuff’s generally copyright expired, stick around a decade with W.W.II stuff, and that’ll be good. That’s VERY rough and ready, BTW.

Author’s death + 70 years was mentioned earlier, and is the long end of the copyright liability, IIRC.

AMB’s points are good, too, but the best advice is, IMHO:

– to check the specific case/s, not generalise
– if publishing, try to establish if copyright is expired, and if not try and sort copyright costs with the copyright holder before publication
– credit honestly
– offer restitution if a copyright holder comes forward – if you can publish that in the work, so much the better, if coupled with an honest statement that a reasonable attempt was made to find copyright holders
– be wary of free internet advice (including this!)

HTH.

All the above is perfectly true, but copyright is only worth enforcing if someone is commercial exploiting another’s photographs. I can’t see that making single copies for private use is any problem and does not invoke any copyright laws, any more than printing off a photo from a forum for a private collection. It is only when an indivual seeks to make money from that photo, that copyright rules kick in.

This is something that has puzzled me for some time. I have had published both photos from the original photographer that have given their permission but plenty by unknown photographers. I occasionally buy original photos from ebay, generally from dealers, that I may wish to publish in the future? Who own the copyright for these? I also have several from a deceased photographer, does the copyright pass onto his family for a period?