The Burlington Magazine

This magazine is not usually thought of as a source for legal advice, but in the past month we have been contacted by several contributors asking us to explain how the law governing the reproduction of images of works of art has changed as a result of a recent judgment in the Court of Appeal in London. As one correspondent hopefully asked, ‘does it mean I don’t have to pay reproduction fees anymore?’ The case itself, THJ Systems v Sheridan, concerned the copying of a ‘graphic user interface’ – the graphic displays produced on a screen by software, which in that case concerned options trading. Remote as this may sound from art history, it was quickly recognised that Lord Justice Arnold’s judgment, published in November last year, clarified in an important way United Kingdom law governing the reproduction of works of art. In particular, it was picked up by Bendor Grosvenor in his column Diary of an Art Historian in the January issue of the Art Newspaper, where he wrote that for those like him who have been campaigning for the end of museums charging reproduction fees for works of art that are out of copyright, ‘it is the news we’ve been waiting for’. When the article appeared on the Art Newspaper’s website, it was headlined ‘Court of Appeal ruling will prevent UK museums from charging reproduction fees – at last’, which is almost certainly what prompted the excited requests for advice received by us. Mr Grosvenor’s own words sum up the implications of the case more accurately: the judgment, he writes, ‘suggests museums have been mis-selling “image licences” for over a decade’, a conclusion that ‘heralds the end of UK museums charging fees to reproduce historic artworks’.

Like so many legal concepts, ‘copyright’ is easy to define but requires expertise to understand. Essentially, it is the exclusive right automatically vested in the maker of a work – usually a creative work – to permit, restrict or prohibit the copying of that work. That right is usually derived from statute – in the United Kingdom, for example, the most important relevant legislation is the 1988 Copyright, Designs and Patents Act. Under the Act, copyright does not expire until seventy years after the death of the work’s creator. The implications of the statute have been thrashed out in a number of cases, both in British courts of law and, more significantly for this issue, in judgments of the Court of Justice of the European Union (CJEU). The important point is the way that copyright is obtained in the first place. In England, courts applied a low threshold: copyright could be claimed for a work if some degree of ‘skill, labour and effort’ was involved in its creation. The CJEU has over time raised that bar considerably and the recent judgment has unequivocally stated that the CJEU’s understanding of copyright must be applied to British cases. That understanding was succinctly stated by Lord Justice Arnold: there is copyright in a work, he wrote, only if its ‘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’. It is evident, therefore, that photographs of flat works of art, such as paintings, watercolours or drawings, do not qualify for copyright protection, since, as the judge explained, the criterion for such protection ‘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’.

This removes a major plank of the justification for museums and galleries charging fees for photographs of works of art in their collections, as they can no longer argue that although they own no copyright in works created more than seventy years ago, they possess copyright in a photograph of it. The dawning awareness of this change – the judgment states that it is reiterating an interpretation of the law that has been in place since 2009 – has led to many collections using Creative Commons licences to release reproductions of works of art that are in the public domain. However, Creative Commons has in its response to THJ Systems v Sheridan issued a statement confirming that their licences ‘can only be used in connection with in-copyright content’.

Important although the clarification provided by the recent case undoubtedly is, it certainly does not mean an end to reproduction fees. It is arguable, for example, that photographs of three-dimensional objects such as sculptures require a level of creative expertise that qualifies them for copyright; the judgement almost certainly cannot be applied to architectural photography. Also, the large files that are required for reproduction of an image in print (often called ‘high-resolution files’, although the size as well as the resolution is important) are usually controlled by the museum or gallery that owns the original work of art and in many instances, particularly in the United Kingdom, they will not provide access to them without a fee. In those cases, the user is required to sign up to the museum’s terms and conditions – in effect, a copyright restriction has been replaced by one based on contract. This is acceptable if the source of those images is, for example, one of the major picture libraries that provide an important service to publications such as ours by collating images from many hundreds of collections and making them available efficiently on demand; it is not clear that individual museums can similarly justify their fees, particularly as they often fail to match the speed and efficiency of such libraries.

It is good to know that the free flow online of digital images of historic works of art will not in future be restricted by copyright claims, but the judgment will have limited immediate impact for those who believe that printed books and magazines will continue to play a major role in art-historical scholarship for many years to come. It is possible to have sympathy for museums in the United Kingdom, since they are charged by Government to be as self-sustaining as possible and it is understandable that they will wish at the very least to pass on the cost of photography and digitisation of works in their collections. As the British Association of Picture Libraries and Agencies has stated in its response to THJ Systems v Sheridan, ‘the debate over copyright and whether a content owner charges for images are separate issues. The effort and cost expended in creating an image that’s been expertly lit, colour-managed, captioned and catalogued can be recouped through licensing or service fees regardless of its copyright status’. Recouping costs is one thing – and is surely achieved within a relatively short time – but making a profit out of a work of art that is not in copyright is another. A number of institutions – the Metropolitan Museum of Art, New York, and the Rijksmuseum, Amsterdam, are shining examples – have acknowledged this by making large high-resolution files available as free downloads from their websites. Others will in time surely follow. The judgment in THJ Systems v Sheridan may not have swept away all restrictions on the reproduction of historic works of art, but it shows the way the tide is inexorably flowing.

The end of reproduction fees?

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