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 would like to contribute to this discussion from the point of view of an author, historian and art lover. The publishing industry has changed so much in recent decades and, in many ways, is struggling to survive. People are not reading as much and books, especially hardbacks, are becoming increasingly expensive to produce and therefore to buy. One way publishers are reducing costs is to make authors responsible for licensing images. This means that authors, who may only be getting a £500 advance on their book, with only perhaps a 6-8% royalty rate on future sales, are expected to provide up to 30 images for a history book and to pay all the reproduction fees themselves.
For me, as a humble author, the reproduction fees asked by galleries in the UK are prohibitively expensive. For example, to license just one image from a leading gallery would cost me £400 if I was to meet the obligations of my publishing contract (supply images with no print run or size restrictions). For the cover would be £800. Most writers simply cannot afford such fees. 10 images would cost £4000, 20 images £8000. Authors are lucky if they earn this much a year. The fees are extorionate and do not foster good will. In fact, UK galleries have acquired a reputation for greed and most authors are encouraged to look elsewhere for images. However, there are few other places to go. The American galleries are great, as so many offer their images for free as they consider the artworks in the public domain, but there are often only one or two portraits of historical figures and most of these are in UK galleries. Therefore an author either has to pay the fee or forgo the image. Sadly, in my case, I have to forgo the image.
Which brings us onto another issue - we could say a moral one. Yes, the galleries are custodians of the images, and they do an incredible job, but someone at some time paid for their portrait to be painted, and probably paid a lot, so their image could be preserved for posterity. Is it right then, that galleries stand in the way of that portrait being used in a history book, perhaps even in a biography of that person, because the fee is so high? That person would surely want their portrait in the book.
I fully agree that galleries and historic houses have the right to recover costs of digitalising images, and as an author I am willing to pay, but a reasonable fee to me would be £15 for a black and white copy of the image or £25 for a colour, with no restrictions on print run and size. If this was the fee, then I would buy perhaps ten or more images, spending up to £300 on images for my book. But with one single image costing £400 I don't buy any, so every one loses.
The situation in the UK has now got so extortionate that institutions are even charging for using photos of handwritten documents that have not been taken by the institution. I've had to pay, for example, close on £100 for using photos of a manuscript in their collection taken by a friend who was happy for me to reproduce the photos for nothing. I appreciate this is a slightly different subject, but it is another hurdle that authors have to jump.
Authors get very little support in their quest for images and, by contract, have to take all the risk of using images upon themselves. Some contracts are better, and some publishers do bear the burden of fees, but increasingly authors are expected to.
There is also the issue of whether a history book is truly a commercial endeavour. Yes, a writer makes money from it, if they are lucky, but when you consider they get paid nothing to write it, and usually have to fund the research themselves, they are only cutting even. For example, it can take 3 years or more of full time writing to produce a history book. So, if that book earns the author £30,000, that is only £10,000 a year. If they pay the galleries £8000 for 20 images then that is more than 25% of their earnings and almost a years salary.
I would love to see the galleries (and historic houses as some charge hefty fees too) move in the American direction and acknowledge that these images are in the public domain, which they are. They would still have the right to charge for supplying images of the paintings, and more people would license them if the fees were reasonable, but for them to claim exclusivbity of the images, even reproduction rights over old photos of the images or those taken by someone else is wrong. The paintings belong to all of us and it is a tragedy that the custodians of them are so often the biggest obstacle to them being shared with the world.
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.