Hi all,
I am in discussion with a UK museum over the release of an image from their digital collection under more liberal terms than CC BY NC. It is of a portrait made around 1915, of someone who died before 1930. I don't know who the painter was, nor whether or when they died. I don't know who made the photo or whether the portrait is actually in the museum (I suppose it is).
Is the above information sufficient to determine the copyright status of the digital copy?
Thanks for any pointers,
Daniel
On 9 November 2012 08:30, Daniel Mietchen daniel.mietchen@googlemail.com wrote: ...
their digital collection under more liberal terms than CC BY NC. It is of a portrait made around 1915, of someone who died before 1930. I don't know who the painter was, nor whether or when they died. I don't know who made the photo or whether the portrait is actually in the museum (I suppose it is).
If the painter is unknown then the 70 year rule applies for anon works in the UK http://commons.wikimedia.org/wiki/Commons:Copyright_rules_by_territory#United_Kingdom.
However, if it can be worked out who the painter was (i.e. the information is knowable, not just that you or the museum don't happen to know it), then you have to calculate from the date of death. I think if the painter is named but date of death is unknown, then you would assume that the painter might have lived to a record breaking age, something like 115 years old, but I don't believe this is based on case law and I'm unsure what advice to give in this area.
PS the photo must be a faithful two dimensional reproduction to have no copyright in itself; if there is a mounting or frame in the photograph then this has to be cropped out unless the frame has no creative content.
Fae
Thanks, Fae!
d.
On Fri, Nov 9, 2012 at 9:51 AM, Fae faenwp@gmail.com wrote:
On 9 November 2012 08:30, Daniel Mietchen daniel.mietchen@googlemail.com wrote: ...
their digital collection under more liberal terms than CC BY NC. It is of a portrait made around 1915, of someone who died before 1930. I don't know who the painter was, nor whether or when they died. I don't know who made the photo or whether the portrait is actually in the museum (I suppose it is).
If the painter is unknown then the 70 year rule applies for anon works in the UK http://commons.wikimedia.org/wiki/Commons:Copyright_rules_by_territory#United_Kingdom.
However, if it can be worked out who the painter was (i.e. the information is knowable, not just that you or the museum don't happen to know it), then you have to calculate from the date of death. I think if the painter is named but date of death is unknown, then you would assume that the painter might have lived to a record breaking age, something like 115 years old, but I don't believe this is based on case law and I'm unsure what advice to give in this area.
PS the photo must be a faithful two dimensional reproduction to have no copyright in itself; if there is a mounting or frame in the photograph then this has to be cropped out unless the frame has no creative content.
Fae
GLAM mailing list GLAM@lists.wikimedia.org https://lists.wikimedia.org/mailman/listinfo/glam
On 9 November 2012 08:30, Daniel Mietchen daniel.mietchen@googlemail.com wrote:
Hi all,
I am in discussion with a UK museum over the release of an image from their digital collection under more liberal terms than CC BY NC. It is of a portrait made around 1915, of someone who died before 1930. I don't know who the painter was, nor whether or when they died. I don't know who made the photo or whether the portrait is actually in the museum (I suppose it is).
Is the above information sufficient to determine the copyright status of the digital copy?
http://www.bl.uk/reshelp/pdfs/copyrightflowchart.pdf is worth saving for future use :-)
As Fae says, you'll really need to determine if the painter is actually anonymous or just not known to them - it might be worth checking the ODNB/Grove etc, which often list known paintings of people, or consulting biographies to see if they have a reproduction with a name attached.
If you can identify the painter, it's life + 70, which means anyone who died in 1941 or earlier (in two months, 1942 or earlier).
If you can't, and it's "properly anonymous", it's a mess. It then comes down to whether the painting was "published" - has it ever been reproduced in print? If so, copyright expires 70 years later - so if it was published by the 1930s, you're safe. If it wasn't published but has been exhibited ("made available to the public"), copyright remains until the end of 2039, or 70 years after first exhibition if that's longer. If it's never been made available to the public - which is likely if they have a photo - then copyright remains until the end of 2039.
The 2039 provision is quite horrendous, and entirely counterintuitive - in theory, it can assign copyright to medieval works, despite the fact that the owner of such continuing copyright is entirely untraceable.
On 9 November 2012 15:59, Andrew Gray andrew.gray@dunelm.org.uk wrote: ...
it was published by the 1930s, you're safe. If it wasn't published but has been exhibited ("made available to the public"), copyright remains until the end of 2039, or 70 years after first exhibition if that's longer. If it's never been made available to the public - which is likely if they have a photo - then copyright remains until the end of 2039.
I am aware that some books on copyright put the exhibition scenario forward, and indeed I have been subject myself to claims by archives attempting to exercise this right (which I basically ignored). However I do not believe there is any background of real cases that support this theoretical interpretation. I could easily be wrong, if you happen to have some cases that had their day in court to clarify and confirm interpretations, I would appreciate the references.
Special archive exhibitions with important material, often have other estates involved who are interested in protecting their rights of reproduction. Again, that's a different scenario and more about how exhibitions protect themselves.
PS Classic; I'm short of time and have big things to attend to, and so find myself in the Wikimedian way, spending my time talking copyright.
Cheers, Fae
-- http://j.mp/faewm Wikimedia Commons Guide to email tags: http://j.mp/mfae
On 9 November 2012 16:14, Fae faenwp@gmail.com wrote:
On 9 November 2012 15:59, Andrew Gray andrew.gray@dunelm.org.uk wrote: ...
it was published by the 1930s, you're safe. If it wasn't published but has been exhibited ("made available to the public"), copyright remains until the end of 2039, or 70 years after first exhibition if that's longer. If it's never been made available to the public - which is likely if they have a photo - then copyright remains until the end of 2039.
(I should clarify here - I meant to say that if they have a photo, it's likely it *has* been made available to the public. Either way, it's academic from the "is it PD" perspective)
I am aware that some books on copyright put the exhibition scenario forward, and indeed I have been subject myself to claims by archives attempting to exercise this right (which I basically ignored). However I do not believe there is any background of real cases that support this theoretical interpretation. I could easily be wrong, if you happen to have some cases that had their day in court to clarify and confirm interpretations, I would appreciate the references.
While there may not be many cases in practice, it is in the legislation, and there's not much room I can see for creative interpretation.
http://www.legislation.gov.uk/ukpga/1988/48/schedule/1
Schedule 1, s. 12(3):
Copyright in anonymous or pseudonymous literary, dramatic, musical or artistic works (other than photographs) continues to subsist ... b) if the work is unpublished, until the end of the period of 50 years from the end of the calendar year in which the new copyright provisions come into force or, if during that period the work is first made available to the public within the meaning of [section 12(3)] (duration of copyright in works of unknown authorship), the date on which copyright expires in accordance with that provision;
The Act proper defines the term to include exhibition:
s.12: For the purposes of subsection (3) making available to the public includes ... (b) in the case of an artistic work; (i) exhibition in public, (ii) a film including the work being shown in public, or (iii) communication to the public;
Not many cases, perhaps, but the use of "exhibition" is indeed there in statute.
Hi Daniel,
this a typical case of an orphan work. Please see our statement on the legislation discussion in Germany: irc://freenode/Jan_away,isnick http://www.wikimedia.de/images/4/43/120810_WMDE_Statement_On_Orphan_Works.pd... (in English).
Relevant are though the national laws despite the effort of EU to harmonize the cases.
gg bfisch Barbara Fischer Kuratorin für Kulturpartnerschaften
Wikimedia Deutschland e.V. | NEU: Obentrautstr. 72 | 10963 Berlin Tel. (030) 219 158 26-0
Wikimedia Deutschland - Gesellschaft zur Förderung Freien Wissens e.V. Eingetragen im Vereinsregister des Amtsgerichts Berlin-Charlottenburg unter der Nummer 23855 B. Als gemeinnützig anerkannt durch das Finanzamt für Körperschaften I Berlin, Steuernummer 27/681/51985.
2012/11/9 Daniel Mietchen daniel.mietchen@googlemail.com
Hi all,
I am in discussion with a UK museum over the release of an image from their digital collection under more liberal terms than CC BY NC. It is of a portrait made around 1915, of someone who died before 1930. I don't know who the painter was, nor whether or when they died. I don't know who made the photo or whether the portrait is actually in the museum (I suppose it is).
Is the above information sufficient to determine the copyright status of the digital copy?
Thanks for any pointers,
Daniel
GLAM mailing list GLAM@lists.wikimedia.org https://lists.wikimedia.org/mailman/listinfo/glam