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.
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
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/