Can I legally copy an old photo from an eBay ad?

A postcard has appeared on eBay for sale. On one side of the postcard is a photograph of a public park dated in 1929. The photo is shown in the advert on eBay. Can I legally copy the photo from the eBay ad or would I have to buy the card? There is no owner stated on the card, it is just a general postcard with an address and a short message on the other side of the photo.

Phil Ingham on March 9, 2012

There are two copyrights here: the copyright of the photo on the postcard (by the postcard photographer), and the copyright of the photo of the postcard (by the eBay seller). Since the eBay photo is probably a direct copy of the postcard and likely has little additional creativity, then it is probably just a derivative work of the postcard. Thus you need not get permission to copy the eBay photo. The postcard image itself, dating from 1929, only has copyright if it was published with a copyright notice AND the copyright was renewed. That is unlikely, particularly if no owner is stated on the card. Plus, if you are using your copy for personal and generally non-profit use, that would likely be considered “fair use” which is not infringing. Buying the card makes no difference, although it would give you a better image to copy from.

old photos, originality

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