Many family historians regularly post online, or circulate on social media, images of themselves and their families and, on the whole, these will probably not fall foul of copyright or intellectual property laws, since they are likely to have been taken by family members who are the legal copyright holders, and who would, even if they should be unaware of the posting, not object to them being used. Copyright is, however, a very tricky subject and there are grey areas, where some guidance might be helpful: there is a lot of confusion about what copyright is, and how it should be interpreted.
One caveat, I am not a copyright lawyer and all this is only my own understanding of how copyright works so please do click on the links and check for yourself!
The legal position in the UK is well explained on this government website but basically copyright in a photograph or written piece of work lasts for the lifetime of the holder plus (since 1995) 70 years after their death. The copyright holder is usually the person who created the work, (eg: the photographer) or it could be the person who commissioned the work (for example, a bride’s father who paid for the wedding photographs, or a company for which the photographer worked).
One common misunderstanding is to assume that ownership of an image grants you the copyright. It does not. For example, a photograph of you as a baby taken by your father in 1960 is his copyright and, in theory, you would need his permission to use it, and so will your children and grandchildren, etc., until 70 years have elapsed since he died. So if your father died in 2000, the image remains ‘in copyright’ until 2070, and you should, theoretically, ask for the permission of his heir(s) to use it.
Updated 11.8.2017. Many people assume that ‘old’ photographs must be ‘out of copyright’, but this is a complex issue and whether or not an ‘old’ photograph is still in copyright depends on several factors. There is a good guide here.
You should always make every effort to trace the copyright owner of a photograph but this may not be possible and it would be as well then to add something to say that you have tried to find out who owns the copyright but without success, promising to credit the image correctly if the copyright owner is made known to you.
There is also no such thing as a ‘perpetual copyright’. When the copyright in a photograph or written work is owned by a company or other institution, copyright protection still ceases 70 years after the creator’s death, even if the institution is still ‘alive’. There is, in the UK, one exception: the writer J M Barrie bequeathed the copyright of Peter Pan to Great Ormond Street Hospital and over the years copyright fees benefited the hospital. Barrie died in 1937 so (since copyright then lasted 50 years after death, not the present 70) when this expired in 1987, legislation (part of the Copyright, Designs and Patent Act 1988) granted the hospital a perpetual exemption.
There is a common misconception that if an image is already available online it can be copied and reproduced with impunity but this is not true, so if you are copying an image to use on your own website, circulate via social media, or include in a presentation or publication, you should always check the conditions on the source website. Sometimes people will be happy for you to reproduce their images provided you credit them correctly but many photographers and commercial organisations will only allow you to use their images on payment of fees. If an image is labelled ‘creative commons’ or ‘in the public domain’ then you should be free to use it, but do check on any acknowledgements that are required.
Another area where family historians need to be careful is in the use of images downloaded from sites such as Ancestry and FindMyPast. Their ‘fair usage’ guidelines allow you to use the images for research purposes but their ‘terms and conditions’ preclude wider, or commercial, use, without getting permission from the copyright holders. With many of the datasets that they offer to subscribers, these companies do not themselves own the copyright which belongs to whoever originally transcribed the data – often a local Family History Society – and it is the permission of the copyright holder which needs to be sought for anything other than personal use. If in doubt check out the ‘terms and conditions’ of the site concerned:
All of this may seem very daunting and lead you to believe you can never reproduce any images, anywhere. Fortunately for family historians, there is the matter of ‘fair usage’ which allows images to be used for non-profit research purposes, and there is an excellent chart which will guide you through the intricacies of this.
Basically if you always check the source of an image to find out if it is in copyright, apply your common sense when you can’t find this out, and don’t use images freely for commercial purposes, then you should not need to worry, but it is important to be aware that ‘copyright’ does exist and you should not assume that because an image is, apparently, freely available online, it can be copied and used without, at the very least, proper acknowledgement, and, sometimes, paying a fee.
Patricia Spencer – 9 August 2017