Finding copyrights to early 1900's postcard images

My answer pertains only to U.S. copyright law. Where to begin: Please see the first link below. It is possible, however, that some of the works that interest you will prove to be copyright "orphans" - please see the second and third links below. Disclaimer: This post does not constitute legal advice and does not establish an attorney-client relationship.

I do not think you can so easily dismiss concerns about copyright issues. You state that "all of the images in question are between 1900 and 1923." I am not sure how you know this to be true. But even if you are corrrect, how do you know that the postcards carrying the images were created before 1923. The post cards coul dhave been purchased in the UK last year, and contained among other features, reproductions of these images. While the original images may be in the public domain, the post cards containing such images which might have been produced years later would constitute derrivative works. Even though copyright protection would not extend to the public domain images, the derivative works containing such images may well enjoy copyright protection. Before selling products derived from these post cards, you should conduct reasonable diligence to ascertain when the post cards were created, whether the post cards contain copyright protection as a derivative work separate and apart from the public domain images contained therein, and who owns such copyrights. If you cannot ascertain that information, then indeed you are dealing with an Orphan work. Certainly, before using images derived from the postcards for commercial purposes, you need to consult with an experienced lawyer. My colleague raises a good point about the right of publicity. The scope of the right of publicity varies from State to State and has been the subject of significant controversy in recent years, most recently with regard to photographs taken of the late Marylin Monroe. Even if you are free to use the photographs in New York, you may not be free to use them in California. I always give clients this general advice---whenever you attempt to build a product or product line based solely on "public domain" works of art (or music), there is still a reasonable likelihood that if you are successful commercially, claims will be made against you for violationss of various intellectual property rights. It takes time and money---including legal fees--to deal with those claims, whether if you negotiate licenses and/or fight them during the course of litigation. In budgeting for your business, you need to account for this risk so that you have sufficient legal resources to deal with these inevitable intellectual property disputes as they arise.

Hmm. If I'm holding in my hot little hand a postcard or "image" [by which I take you to mean a photograph] that was published before 1923 then there's simply no question that all copyright protection has expired. It doesn't matter when or where I bought the postcard or photograph. And it doesn't matter what image is on the pre-1923 postcard. Even if the postcard is a "derivative" of whatever photograph is on the postcard,the laws of physics dictate that the photograph is even older than the pre-1923 postcard upon which it's published -- and so is even more firmly ensconced in the public domain than is the "derivative" postcard. In short, copyright law is irrelevant. Assuming, of course, as my colleague notes, that the postcards and images were really first published before 1923. Which, at least for the postcards, you can tell quite easily from the postmark date.

I apologize in advance for the length (and slightly arcane nature) of this answer, but I wish to address the issue of whether it is conceivable that copyright protection is relevant given the dates of the images. The following is quoted from page 6 of U.S. Copyright Office Circular 1 ("Copyright Basics"), which is available at the link below: "Under the law in effect before 1978, copyright was secured either on the date a work was published with a copyright notice or on the date of registration if the work was registered in unpublished form. In either case, the copyright endured for a first term of 28 years from the date it was secured. During the last (28th) year of the first term, the copyright was eligible for renewal. The Copyright Act of 1976 extended the renewal term from 28 to 47 years for copyrights that were subsisting on January 1, 1978, or for pre-1978 copyrights restored under the Uruguay Round Agreements Act (URAA), making these works eligible for a total term of protection of 75 years. Public Law 105-298, enacted on October 27, 1998, further extended the renewal term of copyrights still subsisting on that date by an additional 20 years, providing for a renewal term of 67 years and a total term of protection of 95 years." To start, we do not know whether or when copyright was secured on an image dated 1923 - it could have been secured many years later, making it certain that the copyright has not yet expired. For the sake of discussion, however, let's assume that copyright on a 1923 image was secured in 1923. The first 28-year term would have expired in 1951. If the copyright were renewed, the 28-year renewal term would have expired in 1979. However, in 1978 the renewal term would have been extended from 28 to 47 years - the additional 19 years taking us to 1998. And for renewal periods existing in late 1998, another 20 years were tacked on, taking us to 2018, for a total term of protection of 95 years. So, to summarize: - If a copyright was secured in 1923, the various renewal-term extensions make it possible that the copyright could remain for another eight years from now. - If a copyright was secured some time after 1923, the copyright would remain in effect that much longer. Disclaimer: This post does not constitute legal advice and does not establish an attorney-client relationship.

Attorney Schultz is incorrect. The issue is whether a work of authorship published before January 1, 1923 can still be protected by copyright. The answer is most certainly no. Attorney Schultz has misread the law. Which is understandable because the law is really, really complicated. Here goes: A work published with a copyright notice before January 1, 1923 was protected by copyright for an initial term of 28 years. [The same work published w/o a copyright notice immediately entered the public domain.] The initial term, therefore, for a work published in 1922 ended twenty eight years later on December 31, 1950 [always the last day of the term’s last year]. If timely renewed, the work’s second copyright term began on January 1, 1951 and ended 28 years later on December 31, 1977. When Congress passed the 1976 Copyright Act it made the Act applicable only to works created AFTER January 1, 1978. The 1976 Act did NOT extend the term of any copyrights that were then subsisting and certainly did not take out from the public domain any works that were then in the public domain. The Act, in fact, retained the existing 1909 Act renewal registration requirement for all copyrights that were then subsisting. HUGE HIGHLIGHT NOTE: remember, the second term for our postcards published in 1922 ended the day BEFORE the 1976 Copyright Act took effect [no coincidence, that]. In short, the 1976 Act does NOT affect our analysis – which, so far, concludes that the copyright in the postcards expired on December 31, 1977 and, since then, have been in the public domain. It was not until the Copyright Renewal Act of 1992 that some copyright terms were extended. The 1992 Renewal Act directed that “[a]ny copyright, the FIRST term of which is subsisting on January 1, 1978, shall endure for 28 years from the date it was originally secured” [emphasis added] and it then directed that authors and specific others “shall be entitled to a renewal and extension of the copyright in such work for a further term of 47 years.” The key point here, of course, is that the extension to 47 years for the second term of a copyright [up from 28 years as stated in the 1909 Act] only applied to works that were in their FIRST term of copyright when the Copyright Renewal Act of 1992 became effective. Counting 28 years backwards from January 1, 1992 brings us to January 1, 1964 – which is the EARLIEST date that a copyright could have attached to a work and yet still be effective on January 1, 1992 [the date the Copyright Renewal Act took effect]. So, while the Copyright Renewal Act extended to 47 years the second term of a copyright it did so ONLY for those works then still in their first term, i.e., those that were first published AFTER January 1, 1964. The works published BEFORE January 1, 1964 were either in their SECOND term or had already entered in the public domain. Which brings us back to our postcards. Because they were published long before January 1, 1964 the Copyright Renewal Act of 1992 does not apply and, so, at the end of their SECOND copyright term [assuming the first was renewed] their copyrights expired and they entered the public domain. Specifically, on December 31, 1977. All of Congress’ subsequent copyright term extensions [most notably the Sonny Bono Copyright Term Extension Act of 2005] only extended the term of copyright for works whose copyrights were then subsisting. None did [or could] take from the public domain the works already in there. [There’s much more to that story but it’s not relevant for our purposes]. Whew. There is no doubt that postcards published with notice before 1923 are in the public domain. Postcards published IN calendar year 1923 may still be protected by copyright. But that’s not the fact pattern we were presented.

Ok, slight correction [which does NOT change my conclusion]. I wrote "The 1976 Act did NOT extend the term of any copyrights that were then subsisting ... " The 1976 Act did, in fact, extend the term of those copyrights subsisting on January 1, 1978. But, as noted, the copyright in our postcards published in 1922 ended the day before on December 31, 1977. So the 1976 Act did NOT extend the postcard's second copyright term.