What is the public domain?

10 August 2018

Region: Headquarters

Often it is useful to know whether a photograph is old enough that its copyright has expired, or it is in what is known as the public domain. (This applies to other forms of intellectual property as well.)

First, let's assume that the image was copyright (or copyrighted ... as they once had to be) in the first place. For example, before 1912 you had to register your copyright with the Stationers Company in London. (Records of such registrations are held by the National Archives at Kew, although not all include the photograph; most have just a description.)

The length of copyright in a photograph has changed over time and is now 70 years after the year of death of the photographer. This is independent of who owns that copyright, which could be the photographer themselves, their heirs, their employer, or someone or some company who was assigned the copyright. So to be clear about whether an old photograph is indeed out of copyright you need to know when the photograph was taken, when it might have been published, and when the photographer died. If you do not know who the photographer was, and you have reason to believe the photograph is still in copyright, then the image is an 'orphan work'. (The UK Intellectual Property Office can issue you a licence to use an orphan work as long as you have diligently searched for the real owner and not found them.)

In many cases you can date the photograph roughly by means of things shown in it, such as clothing or motor cars. Or if it appeared in a publication, then the date of the publication will help by providing at least an end date. If you are interested in dating old photographs, the Society of Genealogists have a useful publication on the subject covering up to the mid 20th century. There are others on Amazon but they seem mostly out of print.

DACS have a very useful summary of the road to public domain for a photograph on their web site.

You may ask why copyright expires. Originally the expiry was after a few years from creation/publication, and the author was likely to still be alive. I have seen it reasoned as part of a pact with the state: it will protect your work for a limited time in return for it eventually becoming freely available. I also think entropy has a role in this. Entropy is the tendency for things to go from order to chaos. A physical object will degrade over time and, eventually, will cease to exist. Copyright expiry can also be seen as way of applying entropy to intellectual property.

There is another aspect to PD. If you own a copyright, you can announce publicly that you wish to renounce all claim on it and, effectively, place it into the public domain. There is a Creative Commons licence that does just this. However, if you do so you need to be aware that someone else could then take your image and sell it, for example as part of an image library. They could even make a creative change to it, at which point a new copyright would appear and it would belong to them, not you. The former is probably not what you intended (while the latter may be just what you hoped for). In this case you need to actually licence the work in such a way that it can't be sold 'as-is' but can be incorporated in another work (such as a web page), or creatively modified. I don't think there is a CC licence that covers this ... perhaps there should be.

Finally, if you take a public domain image and creatively produce a new work derived from it ... such as adding colour to an old black and white photograph or using it in a montage ... then a new copyright is created and it's yours. This then lasts until 70 years after your death. This needs to be creative and skilled in some way so simply copying something, or even digitising it, is unlikely to count.

[Andy Finney is the Society's representative on the British Copyright Council. He is not a lawyer.]