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Let's say I've found an image of artwork online and I know who the creator of the original artwork was, and I know that the creator died more than 70 years ago.

Can I be 100% cetrain that the image of the artwork is public domain, i.e I can sell the image or do whatever I want with it?

Is there a possibility that someone else has bought the right to the artwork and therefore owns the right to it even after 70 years have passed from the original authors death?

EDIT: I should mention this regards a country in the EU but I don't think it matters that much because of the berne-convention?

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In the EU, that's the general rule going forward, but there are two big exceptions I'm aware of. The general rule from Article 1(1) of the Copyright Term Directive:

The rights of an author of a literary or artistic work within the meaning of Article 2 of the Berne Convention shall run for the life of the author and for 70 years after his death, irrespective of the date when the work is lawfully made available to the public.

Note that this is in fact an extension on the Berne Convention, which requires minimum 50 years after death.

Big exception #1: Moral rights. Article 9 specifically states the directive does not apply to moral rights. These vary by country, but in the EU, moral rights have the tendency of lasting forever, and most often includes the right to attribution and a right against action which to the author is "prejudicial to his honor or reputation" (see Berne Convention Article 6bis). Therefore, as a rule, you cannot do "whatever you want" with an image (though sale is generally OK – that's an economic right, not a moral right).

Big exception #2: Pre-existing longer term. Article 10(1) leaves intact pre-existing longer term limits which Member States had:

Where a term of protection which is longer than the corresponding term provided for by this Directive was already running in a Member State on 1 July 1995, this Directive shall not have the effect of shortening that term of protection in that Member State.

This of course means, you can't actually 100% rely on this "70 years after death" rule in the EU until 1 July 20661. However, most EU countries did have 70 years anyways. That said there are some interesting exceptions. For example, France has mort pour la France which extends copyright an additional 30 years for those who died on active military service. This means for French citizens who died before 1 July 1995 on active military service, this directive does not apply, and they still have up to 100 years of post-mortem copyright protection.


As an aside, Wikipedia has a fairly detailed list on country copyright lengths.


  1. Not 2065, because per Article 8, the rule is actually the January 1st after 70 years after death. Then you have to wait till July 1 to be sure the rule 100% applies, because for some reason, they made the Article 10(1) exception start in the middle of the year.
  • ... which means that works produced by Frenchmen who died on active service in the second world war are still in copyright. – Martin Bonner supports Monica May 2 at 16:16
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    @MartinBonner Correct, most famously Le Petit Prince is still copyright in France. We've actually had a question about that one: law.stackexchange.com/q/31007/3209 – DPenner1 May 2 at 16:19
  • Could the "image" / photograph still be under copyright? – mkennedy May 2 at 19:56
  • @mkennedy Are you asking if the image has copyright independent of the original artwork? If yes, as long as it's a faithful reproduction, generally no new copyright, as it lacks originality: law.stackexchange.com/q/27816/3209 – DPenner1 May 2 at 20:05
  • @DPenner1 Thank you, that's what I was asking. – mkennedy May 2 at 20:05
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US Published Works

Basic Rule

In the US, as opposed to the EU (since the question does not state a jurisdiction), if the artwork was published prior to the effective date of the US 1976 Copyright act (which became effective 1 Jan 1978 I believe), then it got copyright protection for 95 years from the date of publication, even if it was a work from a country which then had or now has a shorter term. This means that works published after 1924 and before 1978 may well still be in copyright.

Loss of Protection

Before the 1976 act, a work could lose its US protection if it was published without a copyright notice. A work could also lose its US protection if the copyright was not renewed. The 1976 act made renewal automatic for all works that had not yet reached their dates of renewal, so only works published before 1964 could lose protection in this way.

URRA

However, under the Uruguay Round Agreements Act (URAA), if a work was a non-US-Work, meaning that the author was not from the uS, or the work was first published outside the US and not published in the US until more than 30 days later, then any protection lost due to lack of notice or lack of renewal was restored if, on 1 jan 1996, it was still under copyright in its "source country". If copyright was restored, it got the full term that it would have had had it never been lost, which in most case would be 95 years from publication. The US Copyright Office publication Copyright Restoration Under the URAA describes this in detail.

Publication

Now all of the above applies only to published works. It is fairly easy to tell when a book, say, is published. But when is a work of art, say a painting, published? Some courts have said that simply being included in a public exhibit, even in a famous gallery or museum, is not publication. If prints or other copies are offered to the public for sale, or if a copy is included in a published book, that is clearly publication.

Sales

The question asks:

Is there a possibility that someone else has bought the right to the artwork and therefore owns the right to it even after 70 years have passed from the original authors death?

When a person buys the copyright in a work, they only buy the rights that the previous copyright owner (often the creator or the creator's heir) had. Such a sale does not length the period of protection.

However, if the work was prepared by an employee as part of his or her employment, it is a "work-made for hire". In that case, under US law (but not I think in the UK) the employer is considered the "author" and the employee's detah dater is irrelevant. If the employer is a business, US copyright now lasts for 120 years after creation, or 95 years after publication, whichever is shorter. That could be longer than the life+70 years term, but would rarely apply to artwork.

Conclusion

If one is interested in copyright protection under US law it is not sufficient to determine the date of the author's (artist's) death. One must find out whether the work was published, and if so when.

While all copyright law in Berne Convention countries has many basic similarities, the convention leaves it to individual countries to set the length of copyright, provided at least a minimum term is granted

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