Image library licensing and copyright discussions

[CJGibson]

Am I correct in thinking that these 'image libraries' are charging for images they've potentially just lifted from archives? Or is this operation licenced by the RAeS?

Chris

 

[newsdeskdan]

Am I correct in thinking that these 'image libraries' are charging for images they've potentially just lifted from archives? Or is this operation licenced by the RAeS?

Chris

Mary Evans appears to have a deal with the RAeS to offer its images for licence. Mary Evans also has deals with various other image libraries which act as its agents. If you licence the image via Diomedia, they get a percentage, Mary Evans gets a percentage and the RAeS gets the rest.

 

[overscan (PaulMM)]

And more importantly, the RAeS probably doesn't own the rights to the picture anyway, as the Mary Evans terms and conditions make perfectly clear, so you are paying them for a scan of a physical copy of photo that you'd probably need to license from BAE separately if you publish it.

 

[newsdeskdan]

And more importantly, the RAeS probably doesn't own the rights to the picture anyway, as the Mary Evans terms and conditions make perfectly clear, so you are paying them for a scan of a physical copy of photo that you'd probably need to license from BAE separately if you publish it.

Hmm... debatable. Whoever creates an image owns the copyright to that image. So if someone at the RAeS scanned the original, they have copyright on the digital image file thus created and can licence that image accordingly because it isn't, technically, the original image. In fact the images themselves, the originals, may in some cases now be so old that the copyright which covered them has elapsed and they are out of copyright. In which case, the system hangs together and you can licence the RAeS's scans without having to obtain extra permissions (if they are out of copyright and assuming nobody stopped you, you could drag a scanner down to the RAeS and make your own digital copies of the images, to which you would own the copyright). In fact, a grey area of law exists here concerning 'derivative images'. If you create a new copy of an out-of-copyright image that is exactly identical to the original in every way, how strong is your hold on the copyright to that copy? The courts would need to decide (and there currently appears to be no definitive ruling in English law). Good luck to whoever decides to fight that case on either side!
However, the original images may still be covered by copyright. It then depends on who owns the copyright. In some instances, the contract signed by BAE's predecessors with the Government for a particular project stipulated that the company concerned (e.g. BAC) retained copyright on all materials and designs generated during the course of a project (as with MUSTARD, for example). But in other cases, the contract stipulated that the Government owned the copyright to those materials and designs. Copyright ownership is explicitly stated in the contract.
If the images are recent enough to still be in copyright, the RAeS would have needed to obtain the copyright holder's permission to scan them and offer the resulting images for licence. If they got that permission, then again the whole system hangs together.
If they didn't, everyone who licensed the images from Mary Evans (not to mention the RAeS and Mary Evans themselves) could have problems if the copyright holder ever realised it owned the rights and chose to enforce those rights. In the real world, it would undoubtedly cost BAE and the Government more money to attempt to enforce those rights through staff and admin costs than they could ever hope to recover from authors/publishers etc. It seems unlikely, therefore, that they would ever bother.

 

[CNH]

"So if someone at the RAeS scanned the original, they have copyright on the digital image file thus created and can licence that image accordingly because it isn't, technically, the original image. "

I'm rather dubious about that assertion.

 

[overscan (PaulMM)]

If they didn't, everyone who licensed the images from Mary Evans (not to mention the RAeS and Mary Evans themselves) could have problems if the copyright holder ever realised it owned the rights and chose to enforce those rights. In the real world, it would undoubtedly cost BAE and the Government more money to attempt to enforce those rights through staff and admin costs than they could ever hope to recover from authors/publishers etc. It seems unlikely, therefore, that they would ever bother.

This is my problem with it. They are selling it as if it is a properly licensed stock image, but when you read the small print they explicitly disclaim knowing anything about the original copyright of the image and say you may need permission from the original rights holder.

Therefore, it is legally no more correctly licensed than if I find the original brochure and scan it myself without attempting to obtain permission from the rights holder. This would be OK if they charged a reasonable and flat-rate fee for the scanning and hosting of the image, but they actually charge you based on what you want to use it for. This doesn't make any sense. If they are charging me for obtaining, scanning and hosting an image they don't have legal rights to, then what I do with the image really shouldn't make a difference.

 

[newsdeskdan]

If they didn't, everyone who licensed the images from Mary Evans (not to mention the RAeS and Mary Evans themselves) could have problems if the copyright holder ever realised it owned the rights and chose to enforce those rights. In the real world, it would undoubtedly cost BAE and the Government more money to attempt to enforce those rights through staff and admin costs than they could ever hope to recover from authors/publishers etc. It seems unlikely, therefore, that they would ever bother.

This is my problem with it. They are selling it as if it is a properly licensed stock image, but when you read the small print they explicitly disclaim knowing anything about the original copyright of the image and say you may need permission from the original rights holder.

Therefore, it is legally no more correctly licensed than if I find the original brochure and scan it myself without attempting to obtain permission from the rights holder. This would be OK if they charged a reasonable and flat-rate fee for the scanning and hosting of the image, but they actually charge you based on what you want to use it for. This doesn't make any sense. If they are charging me for obtaining, scanning and hosting an image they don't have legal rights to, then what I do with the image really shouldn't make a difference.

I would imagine that the small print is there to offer them some scant form of legal protection in the event that they've been lied to the person claiming to hold the image rights. Very few if any of the images on Mary Evans are actually owned by Mary Evans. They each come from organisations or individuals who use Mary Evans as an agent. I would guess that Mary Evans makes people who put forward their images for licensing sign some form of contract which states that they are the rights holder and that Mary Evans cannot be held legally accountable in the event that this proves to be untrue. Copyright is such a labyrinthine area of law and very few people really understand its full intricacies (I feel as though I know enough to function but the deeper you dig the more holes and grey areas you discover in it - problems which only a court case would resolve) so I guess Mary Evans does what it can to mitigate any legal claims - even if the resulting dire warnings about permissions are baseless.
It's a business model which seems to work, though, since so many are now doing it. A photo came into my possession a while back of the Aereon 26 which I posted on my Flickr page. A year or two later, I got a message from a photo researcher for a big media organisation who wanted to pay me £££ to licence 'my' photo. Naturally, I didn't take the photo and I don't own the copyright, and I told the researcher this. They didn't care. All I had to do was sign a form and they would send me the money (I stopped answering their emails at that point). And that's how these image organisations make their money. Researchers will just pay them £££ for images they make no secret of the fact that they don't own - and they trust that their disclaimers will protect them if anyone ever comes forward to challenge it.
The law's where the problem is, really, and it won't change because it's not in anyone's best interests to rock the boat. If the boat were to be rocked, things could get a whole lot worse for all concerned.

 

[newsdeskdan]

"So if someone at the RAeS scanned the original, they have copyright on the digital image file thus created and can licence that image accordingly because it isn't, technically, the original image. "

I'm rather dubious about that assertion.

Bear in mind the caveats mentioned - they had to have permission from the copyright holder of the original to scan it in the first place in order to create the new image on which they themselves now own the copyright. Or the original had to be out of copyright. In the latter case there is also the issue of 'derivative works'. They may have generated a new copyright in their digital image, since they created it using their own 'knowledge, judgement and labour', but that's pretty weak, legally.
Here's an extract on derivative works from a rather good document produced by the Tate (https://www.tate.org.uk/file/guide-copyright):

3. Originality Originality is needed for something to be protected by copyright In most cases, a work has to be considered ‘original’ and fixed in material form to qualify for copyright protection. It is important to remember that copyright does not protect an idea, only the expression of the idea. In copyright terms, ‘original’ doesn’t have to mean new, novel or unique – just that the work ‘originated’ with the creator and they used their knowledge, judgement and labour to produce it (12). It does, of course, also protect new work that arises from the creator’s ‘intellectual spirit’. What is meant by ‘originality’? ‘Originality’ is not legally defined, but one thing it is not is simply slavish copying – it must be sufficiently different to make it a new work (13).

The footnotes mentioned, (12) and (13) are:
12 Padfield T Copyright for Archivists and Record Managers (4 ed, Facet Publishing, London 2010)
13 It does not follow “that that which is an exact and literal reproduction in two-dimensional form of an existing two-dimensional work becomes an original work simply because the process of copying it involves the application of skill and labour…Whether it does so or not is a question of degree having regard to the quality rather than the quantity of the addition“ Interlego v Tyco [1988] RPC 343 PC per Lord Oliver @ 371-2

I interpret the latter to mean that if, for example, you colourise a black and white photo, you've altered the 'quality' of the image using your skill and labour - thereby generating a new copyright for yourself on the resulting colour image, even though you didn't take the photo and don't own the rights to it in its original form. Of course, I wouldn't necessarily want to find myself defending that standpoint in court.

 

[newsdeskdan]

And don't even get me started on what happens if the image you want to use is clearly still in copyright but the copyright holder is unknown or is known but is uncontactable (which makes the image, legally, an 'orphan work').
Someone recently said to me 'but doesn't that just mean you can use the work without any problems?' Ahah, no it doesn't.
It's a path that leads to the horror that is the Orphan Works Licensing Scheme or 'OWLS' to give it its deceptively cheery acronym. That's where you compile a dossier of research at your own expense to prove that you cannot find or contact the copyright holder, then you pay an application fee to the government, then you present your dossier and, if it's approved, you pay a substantial licence fee to the Government. The Government then takes that money and holds it on behalf of the copyright holder for seven years (ridiculously, you can only licence 'orphan works' for that long). If the copyright holder hasn't shown up by then, yes, you guessed it, the Government just keeps your money.

 

[galgot]

"So if someone at the RAeS scanned the original, they have copyright on the digital image file thus created and can licence that image accordingly because it isn't, technically, the original image. "

I'm rather dubious about that assertion.

very interesting.
I'm dubious about that too. there is not "originality" added to an scanned image, it's a copy of an image already created in physical form.
It's not like a picture.
How I see it, examples :
- I scan a scaleplan under copyright, the original author owns the copyright of my scan. I should in fact have authorization before scanning.
If I scan a long out of copyright scaleplan, then my scan is just a copy of a thing out of copyright, and I don't own any on it either.
there is no originality added by the scan per se. its a copy.
If I modify that out of copyright scaleplan (to what extent is the question), then yes, a new copyright apply.
- If i take a picture of a Mercedes car in the street, I own the copyright of that picture, because it's my interpretation of the image of a Mercedes in the street, and it's original. Mercedes doesn't own copyright on my picture, but on the design of the Mercedes car.
If I try to do and manufacture copies of Mercedes, then yes, problems.

But I may be wrong...
On the other hand, see how some flight sim creators had much problems incorporating aircrafts still having brands names in their sims...
One could argue that the 3d models incorporated in their sims are their original interpretations of the physical object.
After that, it's like many things, one maybe be "wrong" in claiming copyright of something, but pays a lawyer enough to be "right" in the end...

 

[newsdeskdan]

"So if someone at the RAeS scanned the original, they have copyright on the digital image file thus created and can licence that image accordingly because it isn't, technically, the original image. "

I'm rather dubious about that assertion.

very interesting.
I'm dubious about that too. there is not "originality" added to an scanned image, it's a copy of an image already created in physical form.
It's not like a picture.
How I see it, examples :
- I scan a scaleplan under copyright, the original author owns the copyright of my scan. I should in fact have authorization before scanning.
If the I scan a long out of copyright scaleplan, then my scan is just a copy of a thing out of copyright, and I don't own any on it either.
there is no originality added by the scan per se. its a copy.
If I modify that out of copyright scaleplan (to what extent is the question), then yes, a new copyright apply.
- If i take a picture of a Mercedes car in the street, I own the copyright of that picture, because it's my interpretation of the image of a Mercedes in the street, and it's original. Mercedes doesn't own copyright on my picture, but on the design of the Mercedes car.
If I try to do and manufacture copies of Mercedes, then yes, problems.

But I may be wrong...
On the other hand, see how some flight sim creators had much problems incorporating aircrafts still having brands names in their sims...
One could argue that the 3d models incorporated in their sims are their original interpretations of the physical object.
After that, it's like many things, one maybe be "wrong" in claiming copyright of something, but pays a lawyer enough to be "right" in the end...

The absolute bedrock of copyright is - you create an image, you own the copyright to that image. It's really what you do with it that counts. Just creating an image which infringes someone's copyright and doing nothing with it, while in breach of their rights, causes them no real damage or loss. It would therefore make no sense to sue someone who scanned a scaleplan and then kept it to themselves for their own personal use.
To take your examples:
- You scan a scaleplan under copyright. You own the copyright to the image you just created. But if you publish your image anywhere and the scaleplan author can demonstrate that what you published is a direct copy of something they hold the rights to, they can sue you for breach of their copyright.
- You scan a long out of copyright scaleplan. You own the copyright to the image you just created. But if you publish your image anywhere someone else could copy it from your publication and when you tried to sue them for breach of your copyright you might have a tough time defending your case because they can claim that your image is a 'derivative' of something that is out of copyright.
- You scan a scaleplan under copyright. You own the copyright to the image you just created. You then modify the image so that it no longer closely resembles the original scaleplan and you publish it. The copyright owner cannot sue you because your image no longer infringes their rights.
- You photograph a Mercedes car in the street. You own the copyright to the image you just created. You publish your image and there is nothing Mercedes can do to stop you because it is not a direct and accurate copy of any design that they have made. Your skill and judgement in positioning the camera, the lighting, the background etc. make it a unique image.

- You create an accurate 3D model of a Mercedes car. You own the copyright to the model you just created. But if you use your model to 3D print a precise copy of the Mercedes car, Mercedes will easily be able to demonstrate that what you have made is a direct copy of a form they hold the rights to, so they can sue you for breach of their copyright.

 

[galgot]

Agree. Only, in the first example below in bold :

The absolute bedrock of copyright is - you create an image, you own the copyright to that image. It's really what you do with it that counts. Just creating an image which infringes someone's copyright and doing nothing with it, while in breach of their rights, causes them no real damage or loss. It would therefore make no sense to sue someone who scanned a scaleplan and then kept it to themselves for their own personal use.
To take your examples:
- You scan a scaleplan under copyright. You own the copyright to the image you just created. But if you publish your image anywhere and the scaleplan author can demonstrate that what you published is a direct copy of something they hold the rights to, they can sue you for breach of their copyright.
- You scan a long out of copyright scaleplan. You own the copyright to the image you just created. But if you publish your image anywhere someone else could copy it from your publication and when you tried to sue them for breach of your copyright you might have a tough time defending your case because they can claim that your image is a 'derivative' of something that is out of copyright.
- You scan a scaleplan under copyright. You own the copyright to the image you just created. You then modify the image so that it no longer closely resembles the original scaleplan and you publish it. The copyright owner cannot sue you because your image no longer infringes their rights.
- You photograph a Mercedes car in the street. You own the copyright to the image you just created. You publish your image and there is nothing Mercedes can do to stop you because it is not a direct and accurate copy of any design that they have made. Your skill and judgement in positioning the camera, the lighting, the background etc. make it a unique image.

- You create an accurate 3D model of a Mercedes car. You own the copyright to the model you just created. But if you use your model to 3D print a precise copy of the Mercedes car, Mercedes will easily be able to demonstrate that what you have made is a direct copy of a form they hold the rights to, so they can sue you for breach of their copyright.

Not sure about that. Making a copy of something under copyright doesn't give me copyright on my copy The scan is not an "original" creation.
I just have the ownership of a copy (be it numeric or physical) of something under copyright, not the copyright which would give me the rights to sell/publish/whatever the copied image.
It's like at the times of audio CDs or cassettes. Burning an audio CD of MP3 songs/album, i wouldn't have copyright on the burned audio CD. there is nothing originally creative in burning an audio CD. I would just have ownership on an physical copy , a audio CD , of something (songs/album) that I shouln't have copied (unless having the proper authorization), cause I don't have the copyright on it...
We are getting far from GOR.339, OR.343, TSR.2...

 

[newsdeskdan]

Agree. Only, in the first example bellow in bold :

The absolute bedrock of copyright is - you create an image, you own the copyright to that image. It's really what you do with it that counts. Just creating an image which infringes someone's copyright and doing nothing with it, while in breach of their rights, causes them no real damage or loss. It would therefore make no sense to sue someone who scanned a scaleplan and then kept it to themselves for their own personal use.
To take your examples:
- You scan a scaleplan under copyright. You own the copyright to the image you just created. But if you publish your image anywhere and the scaleplan author can demonstrate that what you published is a direct copy of something they hold the rights to, they can sue you for breach of their copyright.
- You scan a long out of copyright scaleplan. You own the copyright to the image you just created. But if you publish your image anywhere someone else could copy it from your publication and when you tried to sue them for breach of your copyright you might have a tough time defending your case because they can claim that your image is a 'derivative' of something that is out of copyright.
- You scan a scaleplan under copyright. You own the copyright to the image you just created. You then modify the image so that it no longer closely resembles the original scaleplan and you publish it. The copyright owner cannot sue you because your image no longer infringes their rights.
- You photograph a Mercedes car in the street. You own the copyright to the image you just created. You publish your image and there is nothing Mercedes can do to stop you because it is not a direct and accurate copy of any design that they have made. Your skill and judgement in positioning the camera, the lighting, the background etc. make it a unique image.

- You create an accurate 3D model of a Mercedes car. You own the copyright to the model you just created. But if you use your model to 3D print a precise copy of the Mercedes car, Mercedes will easily be able to demonstrate that what you have made is a direct copy of a form they hold the rights to, so they can sue you for breach of their copyright.

Not sure about that. Making a copy of something under copyright doesn't give me copyright on my copy The scan it's not an "original" creation.
I just have the ownership of a copy (be it numeric or physical) of something under copyright, not the copyright which would give me the rights to sell/publish/whatever the copied image.
It's like at the times of audio CDs or cassettes. Burning an audio CD of MP3 songs/album, i wouldn't have copyright on the audio CD burned. there is nothing originally creative in burning an audio CD. I would just have ownership on an physical copy , a audio CD , of something (songs/album) that I shouln't have copied (unless having the proper authorization), cause I don't have the copyright on it...
We are getting far from GOR.339, OR.343, TSR.2...

If you're not sure what I'm saying is correct, I recommend reading Copyright for Archivists and Record Managers by Tim Padfield. It's essentially the archive and image licensing copyright bible and new editions are periodically released to encompass legislative changes - the most recent one came out in October of last year. It's pricey but its worth it if you really want to undestand copyright on images. Padfield was the copyright specialist at the National Archives at Kew in London and knows the subject inside and out. Bringing in audio doesn't really help matters because that's covered by a different area of copyright law. Different rules exist for recordings, text, images etc.

 

[dan_inbox]

This whole discussion on copyrights is very interesting, and deserves its own thread with a proper title.
And to be moved to a proper location (maybe the bar?).
What think?

 

[Grey Havoc]

This whole discussion on copyrights is very interesting, and deserves its own thread with a proper title.
And to be moved to a proper location (maybe the bar?).
What think?

Or alternatively Bookshelf & Marketplace.

 

[CJGibson]

Older readers might remember when the MoD* tried to licence - and charge for - any photo that had a RAF roundel or fin flash. Didn't that end up with the Open Government Licence scheme?

Chris

*Or was it the Mods?

 

[CNH]

I have (slightly) a dog in this fight.

Many years ago, I got a photocopy at the PRO of a certain document which is no longer available. I made a scan of this document. Copyright here is a distinctly murky area. However, the scan ended up on WikiLeaks (against my better judgement), and someone found it, and used it in a book he published with the credit "Author's collection".

I'm not sure what I admired the more: the sheer cheek of not acknowledging the source, or the chutzpah of describing it as "Author's collection".

Once an image is out there on the Internet, it is there for anyone to take.

There are some commercial firms which scan the Internet for images which they claim the copyright to. I belong to an organisation which published such an image in an internal document. This commercial firm (cough, Getty images) asked for a considerable sum of money because this image had been used without permission. Well, I'm afraid to say that the organisation caved into them and paid them a three figure sum of money in recompense.

If it had been me, I would have asked a few questions. Firstly, who was the original photographer? Had he passed the copyright onto Getty Images? Can you prove that? Secondly, you can claim compensation for loss of revenue. Exactly how much did Getty Images lose as a consequence of this publication. Well, they lost peanuts, but they extorted a considerable sum of money on zero evidence.

I fully uphold the concept of copyright, since I know as an author that pirated copies of my works are available out there on the Internet.

The Internet is both a curse and blessing.

Perhaps a new thread on this topic might be a good idea.

 

[galgot]

Moreover some copyright laws details differ from one country to another.

I have (slightly) a dog in this fight.

Many years ago, I got a photocopy at the PRO of a certain document which is no longer available. I made a scan of this document. Copyright here is a distinctly murky area. However, the scan ended up on WikiLeaks (against my better judgement), and someone found it, and used it in a book he published with the credit "Author's collection".

I'm not sure what I admired the more: the sheer cheek of not acknowledging the source, or the chutzpah of describing it as "Author's collection".

Once an image is out there on the Internet, it is there for anyone to take.

There are some commercial firms which scan the Internet for images which they claim the copyright to. I belong to an organisation which published such an image in an internal document. This commercial firm (cough, Getty images) asked for a considerable sum of money because this image had been used without permission. Well, I'm afraid to say that the organisation caved into them and paid them a three figure sum of money in recompense.

If it had been me, I would have asked a few questions. Firstly, who was the original photographer? Had he passed the copyright onto Getty Images? Can you prove that? Secondly, you can claim compensation for loss of revenue. Exactly how much did Getty Images lose as a consequence of this publication. Well, they lost peanuts, but they extorted a considerable sum of money on zero evidence.

I fully uphold the concept of copyright, since I know as an author that pirated copies of my works are available out there on the Internet.

The Internet is both a curse and blessing.

Perhaps a new thread on this topic might be a good idea.

What is the PRO , please ?

 

[CJGibson]

My original point exactly, CNH. These image licencing companies are taking the Mickey. Certainly there are image libraries for photographers that do an excellent job and provide an income for photographers, but this grabbing an image and declaring you have the rights is just nonsense (I prefer the British version of this term, but it might nor translate).

The question is: Quis custodiet ipsos custodes? Could be the title of the thread?

Chris

 

[newsdeskdan]

My original point exactly, CNH. These image licencing companies are taking the Mickey. Certainly there are image libraries for photographers that do an excellent job and provide an income for photographers, but this grabbing an image and declaring you have the rights is just nonsense (I prefer the British version of this term, but it might nor translate).

The question is: Quis custodiet ipsos custodes? Could be the title of the thread?

Chris

About 10 years ago, I wanted to write a bookazine using some images from the IWM, which I knew were out of copyright. I rang up to enquire about obtaining copies of these out of copyright images and was put through to someone who dealt with image licensing there (can't remember his name). I explained what I wanted and he said, well, you can order copies for a fee then we can talk about licensing. I said, 'well, they can't be licensed, surely, because they are out of copyright'. He said words to the effect that, au contraire, the IWM had a team of salaried image scanners who were busily creating copies of the original out of copyright images and thereby generating new copyrights for the IWM. It was these new versions of the images which I would be licensing. I said (naively), 'but you can't create a new copyright like that'. He said, 'oh yes we can. That's how this works'.
This went back and forth for some time, and by now I was exasperated and he was actually laughing at me. Eventually he just put the phone down on me. I naturally checked out his assertions, thinking there was no way he could be right, but unfortunately and much to my annoyance, he was.
Getty makes a lot of money from its images business and has plenty to spare in seeking to defend what it sees as its copyright on images it has obtained, one way or another. As I said somewhere further up, the law is the way it is and no one wants to be the one to challenge Getty et al. in court to try and get it changed. Having said that, my understanding is that when Getty has actually been challenged - when its notices and demands have failed to achieve the desired result and it clearly doesn't have a leg to stand on when it comes to who might actually own the rights to the original image - it's simply backed down rather than going to court. But again, I wouldn't want to be in that position.

 

[CJGibson]

Following yer man at the IWM's logic Dan, soon as we scan a pic, it's ours?

Chris

 

[Hood]

This just feels like a smash and grab by these companies.
As far as I understand it all Crown Copyright images before 1957 are out of copyright (I forget off the top of my head which copyright act that decreed that). So presumably as a national museum the IWM has been given carte blanche to scan and perpetuate the state's copyright regardless. I presume the RAF Museum etc. could do exactly the same thing.

That's the subtle difference to answer Chris' question, its fine if they do it because they are effectively doing the Crown's bidding but if Joe Bloggs turns up with a scanner the rules don't apply and he needs to stump up readies. Don't even get me started on the IWM's camera fee.

Interesting question, what happens if two image houses have the same image? Who has the rights to it then? A lot of Alamy and Getty images appear to be Crown images, so by rights the IWM et al should be getting more heated up at the loss of their images.

 

[newsdeskdan]

Following yer man at the IWM's logic Dan, soon as we scan a pic, it's ours?

Chris

Yes, albeit with all the caveats mentioned above. If you scanned an out of copyright pic - congrats, you just generated your own (weak) new copyright. If you scanned someone else's copyrighted pic - congrats again, you just generated your own new copyright on an image you can only publish if you're willing to risk being sued for breach of the original someone's copyright. Sounds ludicrous doesn't it but, to coin a phrase, here we are.
To answer your point Hood, it's fine if they (the IWM, the RAF Museum) do it because there are rules allowing certain NGOs to administer Crown Copyright - including the TNA, IWM and RAF Museum. They can just give themselves permission to do it. If Joe Bloggs turns up with a scanner, and persuades the TNA, IWM, RAF Museum etc. to let him do it, he can also scan out of copyright material and create his own weak copyright on his newly created images. But of course they are far more likely to simply deny Mr Bloggs the opportunity to scan the originals himself and will make him licence scans they have had pre-made instead.

Two image houses with the same image: as mentioned above during discussions about Mary Evans, in addition to their 'own' images, even Getty and Alamy are perfectly willing to act as agents for rights holders in some instances. Hence the same image appearing on multiple sites. Of course, we don't know what goes on behind the scenes when two agencies begin offering the same image at the same time on behalf of two different clients. I would guess that they would simply ignore the situation and carry on regardless.

 

[CJGibson]

Ok, how's this scenario?

I have a photo, a print, that was issued by the company press office in nineteen oatcake and has 'Free to use' or similar stamped on the back. The same photo is up on an image library website.

I scan it and send it to Malky McAvhist who uses it in a book, credited via me.

Where does Malky stand?

Discuss

Chris

 

[The Artist]

My understanding is that if you make a scan (or photocopy in the old days) of an image from a copyrighted book or magazine, what you make could be put to your own use under the Fair Use provision. That fair use does not mean you can claim copyright to that copy. When Scott works from a scan, or photocopy to produce a new drawing, he has made the step from fair use to copyright holder because he used the copy only as personal reference in creating the new drawing - which he can then claim copyright to.. However. Even this approach can be full of snags if you are working with a design that someone can claim trademark protection over as well as copyright protection. How could this apply to the work of members here? Well, just imagine if Boeing found a reason to go back to work on Dyna Soar. In doing so, they filed for trade mark protections on all their Dyna Soar artwork already in existence. Not likely, I know, but with the way companies are reaching these days, something like that could happen someday.

Another thing that is going on these days is that there are some who are buying things out of public domain and filing for new copyright protection. (I don't fully understand how that works, but it can be done.)

 

[Rickshaw]

Copyright has always been explained to me as being a case of, "if you have a copyrighted image and you reimage it/scan it/alter it in anyway", you now have copyright of the changed image, while the original copyrighter still has copyright of the original image. This makes things murky but understandable.

PRO is BTW, the Public Records Office.

 

[The Artist]

Copyright has always been explained to me as being a case of, "if you have a copyrighted image and you reimage it/scan it/alter it in anyway", you now have copyright of the changed image, while the original copyrighter still has copyright of the original image. This makes things murky but understandable.

PRO is BTW, the Public Records Office.

If that were true, than I could scan, say, John Harris' cover art for the book "War Of Gifts" then do whatever I wanted with my 'copyrighted' image. No. I'd be slapped with C&D orders from John Harris, Orson Scott Card, and TOR, the publisher of the book, if I tried to market copies of MY so-called copyrighted image. As I said you get fair use when you make a copy of copyrighted material. And, fair use does not include infringing on the rights of the copyright holder(s). As an artist, I can print out that scan and post it in my studio for inspiration, and I could even attempt a painted copy of that image as a learning experience, but I would have to acknowledge that it is a copy by signing it as "M.Burke after John Harris." Still, even after doing that, I would not be able to mass-market copies of MY new painting.

I agree that this discussion should be moved to its own thread. The question of who really owns the images in the Getty Images collection is one thing, but copyright and trademark questions can get quite murky and we need to get voices with adequate background into this conversation.

 

[newsdeskdan]

Ok, how's this scenario?

I have a photo, a print, that was issued by the company press office in nineteen oatcake and has 'Free to use' or similar stamped on the back. The same photo is up on an image library website.

I scan it and send it to Malky McAvhist who uses it in a book, credited via me.

Where does Malky stand?

Discuss

Chris

Ran into this constantly when working on newspapers. The recipient of a press release, press handout, press photo, whatever, has implied permission for one-time use. The recipient does not receive any other rights over the image. Copyright remains with the copyright holder and subsequent uses of the image are not covered by the original implied consent when the handout was made.
So in this case, Malky McAvhist and Malky's publisher are in breach and the copyright holder can sue for damages (the publisher probably made Malky sign something promising that he had copyright permission to use all the images he submitted for the book, and that the publisher would not be held legally responsible should this prove not to be the case). Technically you're in breach too but you didn't publish the photo - you just made a single scan of it - so I doubt anyone would bother coming after you. Publish and be damned.
The get-out-of-jail-free card, if you can call it that, is the fact that in many cases the original rights holder has forgotten that they still hold rights to that image or doesn't care. As mentioned waaaay up above somewhere, it's often simply not a financially appealing option to go after someone for breach of copyright on a single image. They might even regard the unauthorised use as fine because it provides free publicity for the company - but Malky should really have checked it out with them first.
The image library website version of the photo you have may be offering it on behalf of the true copyright holder or on behalf of someone who simply assumes that because the photo was a handout many years ago it's now fair game.
The image library website might feel totally confident in coming after Malky if its client is a big corporate, or it might just ignore Malky because it's not 100% that the person claiming to hold the copyright is actually the real deal.

 

[newsdeskdan]

My understanding is that if you make a scan (or photocopy in the old days) of an image from a copyrighted book or magazine, what you make could be put to your own use under the Fair Use provision. That fair use does not mean you can claim copyright to that copy. When Scott works from a scan, or photocopy to produce a new drawing, he has made the step from fair use to copyright holder because he used the copy only as personal reference in creating the new drawing - which he can then claim copyright to.. However. Even this approach can be full of snags if you are working with a design that someone can claim trademark protection over as well as copyright protection. How could this apply to the work of members here? Well, just imagine if Boeing found a reason to go back to work on Dyna Soar. In doing so, they filed for trade mark protections on all their Dyna Soar artwork already in existence. Not likely, I know, but with the way companies are reaching these days, something like that could happen someday.

Another thing that is going on these days is that there are some who are buying things out of public domain and filing for new copyright protection. (I don't fully understand how that works, but it can be done.)

The fair use thing is true. If you make an image but don't publish it or seek to exploit it commercially in any way, the copyright holder would have a hard time sueing you. Drawing your own version of an original drawing is a murky area. If you make a very nearly exact copy of someone else's drawing you may be sailing dangerously close to the wind, copyright-wise. But if your new drawing isn't the same as the original - maybe you filled in some details that weren't there or whatever, you're probably going to be okay. It depends on how different your new drawing is. For example, imagine a book full of precise drawings of real-life Porsche cars, exact in every dimension. I cannot believe Porsche would stand idly by and not go after the artist for breach of copyright. A book full of 'super-deformed' style Porsche cars, on the other hand, would probably be okay (but I wouldn't put it past Porsche to try something anyway!).
I already covered the 'buying things out of public domain and filing for new copyright protection' further up. If you scan an out of copyright image (the concept of 'public domain' does not exist in UK law) - you create a new (weak) copyright for yourself.

EDIT: Making your own version is only a murky area if you then seek to exploit your drawing commercially. Just making a copy for yourself, keeping it to yourself and making no attempt to pass it off as an original is completely fine.

 

[The Artist]

Painting copies of paintings for learning is a time honored practice. In fact, you can register to go into many art museums to paint a copy of one of their works. When you do that, you have to do your copy larger or smaller then the original size and you have to have other markings on the frame so the museum security has no confusion. If you are painting a copy in your studio from a picture in an art book - then what you paint will likely be a different size from the original and from the picture in the book. And again, as long as you note it as a copy in your signing, (and don't try to mass market that copy) you should be fine.

 

[sienar]

Alternatively, you could just take a closely cropped photo, display it in a gallery, and become a famous artist.

 

[The Artist]

I hope you are joking about that one.

Your comment reminds me of a discussion at an American Society of Aviation Artists (ASAA) Art Forum once on the practice of 'stealing' part of a sky in someone else's work as inspiration for painting the sky in the piece you are working on for your client. Apparently, this was wide spread in the commercial art biz back then. A few of the artists spoke of getting caught at it. I learned from that to build up my own personal collection of sky photographs to use as reference.

 

[newsdeskdan]

Painting copies of paintings for learning is a time honored practice. In fact, you can register to go into many art museums to paint a copy of one of their works. When you do that, you have to do your copy larger or smaller then the original size and you have to have other markings on the frame so the museum security has no confusion. If you are painting a copy in your studio from a picture in an art book - then what you paint will likely be a different size from the original and from the picture in the book. And again, as long as you note it as a copy in your signing, (and don't try to mass market that copy) you should be fine.

It certainly comes down to what you do with your picture. As with scanning, if you copy a picture for yourself by hand I think the copyright holder of the original would have no hope of sueing you - because you've not caused them any financial or other loss/damage. It's only if you attempt to exploit your very similar drawing for commercial purposes and make money off it (even if you're in no way trying to pass it off as the original) that you might attract a claim from the copyright holder.

 

[CNH]

Getty from an American perspective:
http://www.hackerfactor.com/blog/index.php?/archives/625-Dear-Getty-Images-Legal-Department.html

 

[Tony Williams]

Thanks to all those who are contributing their specialised knowledge to this thread. As an author, I find it fascinating if somewhat depressing. My biggest problem in producing books is in finding images that I can use without running into copyright issues - for the sort of books I write, the profit margin is too small to justify paying lots of reproduction fees (yes IWM, I mean you!).

Suppose I possess a digital image of a photo of an object (in my case, probably a cannon!) which I want to use but for which I am unable to locate any copyright info (most of the images I use are old ones of historical equipment). If I went to the trouble of removing the background, leaving the image of the object standing alone, where would I stand in copyright terms?

 

[galgot]

As these copyright on scans stuff is well documented by @newsdeskdan , at least in British law, was curious how it works in France (where I live).
there is a Documentation center at the Musee de l'Air , I've asked them what are their conditions of use of images scans they can provide.
Will forward their response.

 

[newsdeskdan]

Thanks to all those who are contributing their specialised knowledge to this thread. As an author, I find it fascinating if somewhat depressing. My biggest problem in producing books is in finding images that I can use without running into copyright issues - for the sort of books I write, the profit margin is too small to justify paying lots of reproduction fees (yes IWM, I mean you!).

Suppose I possess a digital image of a photo of an object (in my case, probably a cannon!) which I want to use but for which I am unable to locate any copyright info (most of the images I use are old ones of historical equipment). If I went to the trouble of removing the background, leaving the image of the object standing alone, where would I stand in copyright terms?

If you can't determine or locate the owner of the copyright, and you can demonstrate that you have tried to do so, you can apply to the previously mentioned Orphan Works LIcensing Scheme run by the Government (Google it - all the necessary forms and a fuller explanation are available online). This effectively allows you to licence the work from the Government and if the copyright holder does come forward the Government simply passes the fee on to them - so you're protected from any legal comeback. It's not cheap though.
Removing the background involves the application of your own skill and judgement, which goes some way towards giving you your own copyright on the end product image. Exactly how much legal strength your new copyright has versus the rights of whoever owns the rights to the original image is debatable. And by debatable I mean it would be for the courts to decide if it ever got that far. Exactly how much you have to do to an image to make it entirely 'yours' is simply not defined in law. You would be taking a risk but in my view it would be a very small risk. Even using the original image probably carries little risk.

 

[sienar]

I hope you are joking about that one.

Your comment reminds me of a discussion at an American Society of Aviation Artists (ASAA) Art Forum once on the practice of 'stealing' part of a sky in someone else's work as inspiration for painting the sky in the piece you are working on for your client. Apparently, this was wide spread in the commercial art biz back then. A few of the artists spoke of getting caught at it. I learned from that to build up my own personal collection of sky photographs to use as reference.

I'm not, Prince became famous for he "re-photography" of Malboro ads. I could've sworn Marlboro threatened suing him but I can't find anything about that now. He has been sued since then, and usually has won for the most part.

Court Rules in Artist’s Favor (Published 2013)

In a case with broad implications for the art world, a court decided largely in favor of the appropriation artist, who made use of work by the photographer Patrick Cariou without permission.

www.nytimes.com

 

[The Artist]

I hope you are joking about that one.

Your comment reminds me of a discussion at an American Society of Aviation Artists (ASAA) Art Forum once on the practice of 'stealing' part of a sky in someone else's work as inspiration for painting the sky in the piece you are working on for your client. Apparently, this was wide spread in the commercial art biz back then. A few of the artists spoke of getting caught at it. I learned from that to build up my own personal collection of sky photographs to use as reference.

I'm not, Prince became famous for he "re-photography" of Malboro ads. I could've sworn Marlboro threatened suing him but I can't find anything about that now. He has been sued since then, and usually has won for the most part.

Court Rules in Artist’s Favor (Published 2013)

In a case with broad implications for the art world, a court decided largely in favor of the appropriation artist, who made use of work by the photographer Patrick Cariou without permission.

www.nytimes.com

Well, apparently, someone can come up with an argument that works (and hours can be spent debating if it's right or wrong), but to tie this back to the focus of this site, it is very unlikely that anyone would get away with cropping the outer edges off of, say, a Keith Ferris painting then using the remaining 'new-because-it's-been-changed' image as the cover art on their new book. The aviation art community has become close-knit while also being international. They spread the word quickly when art theft (as in non-authorized use of art) is detected. Aviation Photographers are also forming these networks. The plus side of these networks and associations, is that this makes the artists and photographers more accessible. And, mot many of them are commanding the rates a top-notch artist like Keith Ferris can ask. They are looking for work. You can find many of them on social media sites like Facebook, and also on the various society and guild websites. The ASAA website would be a good place to start.

 

[Tony Williams]

I am currently hunting for photos to illustrate my next book (on the history of automatic cannon and their ammunition). A good source of images is Wikimedia Commons, but I find their guidance over how the images can be used to be confusing. For some of the images, the people who uploaded them specifically state that use by anyone is free of all restrictions. However, in most cases there is something like this:

This file is licensed under the Creative Commons Attribution 4.0 International license.
You are free: to share – to copy, distribute and transmit the work to remix – to adapt the work Under the following conditions: attribution – You must give appropriate credit, provide a link to the license, and indicate if changes were made. You may do so in any reasonable manner, but not in any way that suggests the licensor endorses you or your use.

The problem I have with the above is that it is geared towards use of the image in electronic form: how can I "provide a link to the license" in a book? I have studied the guidance that Wiki provides, but it doesn't really cover my circumstances (generally speaking, I will modify any images I use, by adjusting the exposure and/or cropping). This is particularly frustrating when it comes to images from official sources, such as the one below:

This image was provided to Wikimedia Commons by the German Federal Archive (Deutsches Bundesarchiv) as part of a cooperation project. The German Federal Archive guarantees an authentic representation only using the originals (negative and/or positive), resp. the digitalization of the originals as provided by the Digital Image Archive.

Again, what I have to do to satisfy legal requirements is unclear.

I would be most grateful for any advice!