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Advice - Photography / Copyright / Copyright in pre-1989 photographs

The Copyright Designs and Patents Act 1988 recognised for the first time in UK law that photographers are creators of the pictures they take, whether these were commissioned or on spec.

So, in UK law: you, the photographer, have copyright in photos taken on or after that Act came into effect on 1 August 1989 - unless you took them in the course of a contract of employment, or you signed an agreement "assigning" rights. You can re-license them as you please - unless you granted an "exclusive licence".

The following notes originated as a response to a 90-year-old NUJ member who is compiling a book of her work. It may not be complete.

Photos taken before 1 August 1989 are covered by the Copyright Act 1956 (linked below). This provided that:

Section 3(4)b: ...the copyright in a photograph shall continue to subsist until the end of the period of fifty years from the end of the calendar year in which the photograph is first published, and shall then expire.

So, as of August 2021, photographs published after 1956 and before the end of 1970 are already in the public domain under UK law and no-one can stop the photographer (or anyone else) re-publishing them.

The bad news concerning UK law, from the point of view of a photographer wanting to publish a collection, concerns photos published less than 50 years ago and taken before 1 August 1989. The 1956 Act provided:

Section 4(3): ... where a person commissions the taking of a photograph, or the painting or drawing of a portrait, or the making of an engraving, and pays or agrees to pay for it in money or money's worth, and the work is made in pursuance of that commission, the person who so commissioned the work shall be entitled to any copyright subsisting therein by virtue of this Part of this Act.

That suggests that you should as a matter of principle seek the permission of relevant newspapers or magazines in the UK before re-publishing photographs that they commissioned, and published less than 50 years ago.

And what of photos that you took before 1 August 1989 that were commissioned but have not been published? It looks as though the commissioner still owns them, until they pass into the public domain at the end of the fiftieth year after the photographer's death.

And what of photographs taken before the Copyright Act 1956 came into force? The Copyright Act 1911 provided that:

21. The term for which copyright shall subsist in photographs shall be fifty years from the making of the original negative from which the photograph was directly or indirectly derived, and the person who was owner of such negative at the time when such negative was made shall be deemed to be the author of the work, and, where such owner is a body corporate, the body corporate shall be deemed for the purposes of this Act to reside within the parts of His Majesty's dominions to which this Act extends if it has established a place of business within such parts.

More research is, however, required to be absolutely sure whether any photographs are still in copyright under the 1911 Act.

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Text © Mike Holderness & previous contributors; Moral rights asserted. The collection (database right) © National Union of Journalists. Comments to ffg@londonfreelance.org please. You may find the glossary helpful.

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