Museum image fees - a call to arms (ctd.)

October 24 2017

Image of Museum image fees - a call to arms (ctd.)

Picture: Delacroix!

I want to look into what I think is potentially the most significant chink in the armour of UK museums’ image reproduction policies. A key element of their policy on charging for images has been that they somehow ‘own’ the copyright of works in their collection. But do they? And if they don't, what are the consequences of them claiming they do? [NB, as ever I'm only referring to images of 2D works - drawings, paintings, prints - which are themselves out of copyright, that is, made by an artist who died more than 70 years ago.]

First, let’s have a look at (for example) Tate Images' terms and conditions. This appears to make it clear that when they charge you to use an image of an historic artwork in their collection, they are doing so because they claim the copyright to the image.

For example, here’s clause 5.5 under the heading ‘Copyright’:

Each reproduction of an Image must credit the relevant artist(s) in full, the title of the work and carry the copyright notice (C) Tate, London 201[][]. 

This would appear to mean that Tate are claiming the copyright of any image they sell, wherever and however it is published.

And here’s more from clause 6, under the heading ‘Licence’:

6.1 Subject to Clause 5 above, Tate hereby grants to the Client a non-exclusive, worldwide, royalty free, copyright licence to reproduce and store copies of the Images by any means or in any media (to “Reproduce”) for the purposes specified on the Form in accordance with applicable copyright law. 

In other words, it would appear that what Tate is selling under their terms and conditions is ‘a copyright licence’ to the image you may want to reproduce in your book.

But as I have mentioned in my previous posts on this matter, UK, US and European law on this area appears quite clear; making a new photograph of an out of copyright painting does not create a new copyright. 

Why is this important? Because it may be that the contracts entered into each time someone buys and image from Tate and other similar UK museums are in fact void.

And why is that? AHNers, let me make you aware of the term ‘copyright overreach’. This is when someone wrongly claims copyright where none exists. And it turns out that that’s a pretty serious thing.  

A reader has kindly sent me this 2014 article by Dr. Grischka Petri of the University of Glasgow, in the Journal of Conservation and Museum Studies. It is titled, “The Public Domain vs. the Museum: The Limits of Copyright and Reproductions of Two-dimensional Works of Art”, and makes for fascinating reading. 

Here’s the abstract:

The problem of museums and public institutions handling reproductions of works in their collections is not only a legal question but also one of museum ethics. Public museums are committed to spreading knowledge and to making their collections accessible. When it comes to images of their holdings, however, they often follow a restrictive policy. Even for works in the public domain they claim copyright for their reproductive photographs. This paper offers an analysis of the different interests at stake, a short survey of important cases, and practical recommendations.

It’s a long and detailed piece, and thoroughly examines all the various test cases and statue law around copyright. I cannot pretend to do justice to it here - I would urge you to read it yourselves. But I’ll attempt to explain what I think are the important bits. And Petri's most significant conclusion is very simple:

There is no copyright in photographic reproductions of two-dimensional works of art in the public domain. 

This prompts Petri to suggest that:

[…] current museum practice in view of copyright is to some extent unethical.

But can we go further than unethical? Is it just flat out wrong? For Petri also looks at the way in which UK museums have operated with regard to selling or licensing their reproductions. He explores whether museums are guilty of ‘copyright overreach’ - that is, wrongly claiming to have copyright in a work, and selling an image on that basis. He asks:

In view of these findings, what is the significance of museums’ and agencies’ disregard for the law?

[…]

Museums re-appropriate works in the public domain through their practice of claiming copyright protection for their reproductions, thereby arbitrarily extending the copyright term. […]

Does this practice therefore mean that UK museums are acting in breach of copyright law, when they sell an image under their current terms and conditions? Petri continues:

At present, however, the suggestion is that many museums’ practice in rights and reproductions does not comply with UK copyright law. Instead, it is a widespread practice to contract around copyright law with terms and conditions regulating access to works in the public domain and their reproductions […] notwithstanding that such contracts cannot legitimately be used to bypass copyright law but must respect it.

And here’s the really important bit:

Within the European Union, this means that contracts bypassing essential principles of copyright law can be problematic in view of the Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (cf. s.6 (1) in the UK’s Unfair Terms in Consumer Contracts Regulations 1999). The museums’ ‘abusive practices’ with regard to reproductions of two-dimensional works of art in the public domain are in breach of copyright law, irrespective of these institutions’ dire economic situation, and irrespective of whether this practise is called ‘copyfraud’ or ‘copyright overreaching’. 

So here’s my question - if UK museums have wrongly been claiming copyright on historic artworks in their collections for all these years, and charging money for that, what are the consequences? Are those of us (whether scholars or publishers) who have paid for an invalid contract entitled to recompense of some kind? If UK museums had simply said; “here’s a high res image, we’re charging you for the provision of that image, nothing more”, it would be different matter. But by making their contracts about copyright, they have claimed to be selling something they actually had no right to sell. In America, the answer to this would be simple; a class action lawsuit. 

I would be glad to hear AHNers views on this, especially lawyers!

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