Following a recent Court of Appeal ruling on UK Copyright law art historian Dr. Bendor Grosvenor, a long-standing campaigner on academic image use, has written an interesting article in The Art Newspaper on how the case affects image fees and UK museums where the original artwork is itself out of copyright: https://www.theartnewspaper.com/2023/12/29/court-of-appeal-ruling-will-prevent-uk-museums-from-charging-reproduction-feesat-last
He adds more detail in a thread on his Twitter (X) feed, including feedback that he has subsequently received from the National Gallery and the Tate: https://twitter.com/arthistorynews
It may well also interest map and photo historians.
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BPH editor's note: The ruling clarifies that copyright cannot for straight copies out out of copyright 2D works of art. In Grosvenor's words: "It means these photographs [of 2d artworks] are in the public domain, and free to use." However, with instititutions and galleries acting as gatekeepers for their collections the supply of high res files is likely to remain something that they continue to charge for. Any low (and rarely high res) files online or available for download of out of copyright work are now free to use.
The basis for this is in Lord Justice Arnold's (THJ Systems v Sheridan, 2023), ruling that, for copyright to arise: “What is required is that the author was able to express their creative abilities in the production of the work by making free and creative choices so as to stamp the work created with their personal touch... “his criterion is not satisfied where the content of the work is dictated by technical considerations, rules or other constraints which leave no room for creative freedom”. As Grosvenor summarises: "if the aim of a museum photograph is to accurately reproduce a painting (which it must be), then it cannot acquire copyright." He concludes: "For art history, this is a judgement where everyone wins."
As I noted earlier, with instititions still controlling supply - and the conditions of use - then there may be little change in the cost of using images in publications, online, and especially for commercial use. The argument from institutions is that reproduction fees support digitisation programmes, the staff and photography departments needed to deliver photography, and the servers and tech infrastructure that make them available. There is now perhaps a stronger argument for publicly funded digital imagery of out of copyright material to now be made freely available in high res versions. For some commercial picture libraries this ruling may undermine parts of their business model, although they have tended to be better at watermarking and limiting material to low res images, and with a commercial remit have been under less pressure to change. Publicly-funded institutions have less of a defence.
Institutions in the United States are ahead of the UK in this area with many making reproductions of their artworks (including photographs) freely available in low and high res versions for non-commercial use, and some even allowing commercial use. For photography where reproductions of the same artwork may appear in different collections US collections continue to be the first port of call for those seeking to reproduce material.
There are several legal summaries and this is one of the more useful: https://www.vennershipley.com/insights-events/originality-in-copyright-a-review-of-thj-v-sheridan/
Dr Michael Pritchard
UPDATE:
BAPLA has published its response to the case, reminding us that copyright and image fees are two separate things. See: https://bapla.org.uk/statement-from-bapla-on-thj-v-sheridan/
Comments
I have copied many thousands of images and to be perfectly honest, whilst there is a cost, it is not immense and will quickly be covered by a relaively small fee. From my point of view as someone who also tries to access images for various types of publication such a fee is fine, but a higher © fee was in my opinion counterproductive. It prevented usage, besides often being a slow and consequently unweildy mechanism from many institutions. A simpler 'access' fee would make much better sense.
Paul, there is also the issue of old photographs being 'improved' with the 'improver' claiming copyright on the improved version of the works, which is perhaps an even more complex area than a straight copy of an original art work, which is what this judgment seems to assume. I chair a photo museum (in Ireland) and we are acquiring a collection of contemporary photographs, where, in most cases, the photographers are still alive. We leave the copyright to the works with the original photographers/artists or their heirs and we only take on limited and agreed (with the photographer/artist) rights in respect of the works when they join the collection. I believe this judgment largely addresses the straight copying of works by long since deceased artists.There is also a fine line to be drwan between the status of a work as a 'work of art' and as an 'artefact'.
Indeed, 'non-global adjustments' could be argued as being 'artistic' (IMO they are still mostly 'technical') but I have made very straight copies in camera and as such they had no 'artistic' input. In all honesty, although there are good technical reasons for copying using a camera, photographic images can be scanned using a flat bed scanner on default settings so the resulting file has no 'artistic' input whatsoever by the scanner operator.
If I owned an out of copyright print (actually I do) then if I copy it and make it available to all, then that is my decision. If a museum owns a similar print then I see no problem in requiring an access fee to cover copying costs, but other than that the museum has no inherent rights over the image other than ownership of the physical print. As a photographer I have never claimed copyright on a copied image for the simple reason that I never considered that I had any artistic input. It was merely a technical exrercise. I am glad that this has now been accepted in law because it removes an anomaly for the usage of out of copyright material. For those who disagree I am sorry to say that the whole concept of coyright time limits was intended to prevent imagery being retained and charged for ad infinitum and this has now been verified.
I agree with you as regards the copyright aspect, but any institution, whether State funded or private, has the right to recover its costs in an individual transaction with a recipient who receives a private benefit, which could include a high res image created by the institution.Providing free exhibitions etc is an entirely different matter, as they are available to all. It is a complex scenario with many aspects.
At the photo archives I worked at in the Smithsonian, we abided by (c) and public domain laws and could not legally charge "reproduction right fees." We could, however, charge use fees to cover care and handling, storage, etc., etc. A work around to help support the collections, but because under our control, we could also waive for scholarly works etc.
I have a lot of experience of picture research for an educational publisher and I can't really see why museums should be expected to make hi-res photos of artworks available for free. Someone has to pay to have the work photographed, which is a skilled task. So why should commercial companies, including publishers, then have access to these images without paying a fee? I had constant battles with authors who believed that 'found in a Google search' was equivalent to 'in the public domain'. Images are property, and at a time when professional photographers' work is being eroded it seems odd for this blog to be championing that erosion further.
Thanks, Jane. That's also the point that I make in my postscript. There is a cost to digitisation and supplying files, for a reasonable fee, to cover those costs is fair. The issue was that many institutions were claiming copyright on out of copyright material which was founded to be against the law. However, if institutions make images available online wihtout watermarking then they lose control, although keeping these to low res versions will limit any value for publishers. It will be interesting to see how this works its way through over the next few months.