Museum image fees - a call to arms
September 26 2017
Picture: Musee du Louvre, via Radford University
AHN has always urged museums to accept the future. Five years ago, most museums in the UK were still attempting to ban photography. Now, happily, very few do. But the next frontier in the battle for museum modernity involves image reproduction fees. These fees are killing art history, and it’s time we did something about it.
First, I want to be clear that in the article below I’ll be discussing fees for out of copyright paintings and drawings in public collections. That is, anything in 2D which was made by artist who died over 70 years ago. The legal and financial situation for artworks in copyright, and for sculptures and other 3D works, is far more complicated, and frankly there’s not much we can do about that. If you want to reproduce an artwork which is still in copyright, you’re going to have to pay - usually through the nose.
But for ‘old’ art the situation is very different. Many museums will have you believe that because they are licensing newly taken photographs of, say, a Hogarth, then they have copyright over that photograph, and can therefore charge what they want for it. But this is not the case. There are variances, but essentially in both US and UK law a straightforward photographic reproduction of an old painting does not generate any new copyright implications. For a new photograph of a Hogarth to have any copyright vested in it, it must in some way be original (ie, amended, added to, written over, distorted). So don’t let museums tell you that what you’re paying for is the right to legally reproduce their photograph of their painting. They’re not. In fact, all they’re doing is hustling you.
But before I rail further about the iniquities of charging, let’s look at some actual charges. Are the fees worth getting upset about? To reproduce Hogarth’s self-portrait with his Pug from Tate Britain would cost you:
- £15 for an unpublished doctoral thesis (maximum ten printed copies);
- £61 for an ‘academic’ publication (print run up to 3,000);
- £142 for an academic publication which is also online;
- £172 for an exhibition catalogue of no more than 25,000 copies;
- and £430 for use in a TV programme.
As one-off fees, you might say, ‘that’s not so bad’. But consider that your average art history PhD will have dozens, if not perhaps hundreds, of images, then soon even an unpublished PhD can become prohibitively expensive. You want to discuss mid-18th Century portraiture, and show perhaps 50 images? That’ll be £750. You want to turn that PhD into a book? £3050 please, before you’ve even thought of printing costs. Want to put on a Hogarth exhibition, with a decent catalogue? £8600. Ouch. And Tate are on the cheaper end of the scale.
The really outrageous thing about image fees is the extent to which scholars and students are made to pay. These fees are a tax on scholarship. No other academic discipline does this. There is a general assumption that ‘academic’ image use is free. But as we have seen, Tate charges even for unpublished theses. The National Gallery say they allow free images for academic use, but stipulate that they deem 'academic use' to be only when:
[…] the scholar is personally responsible for paying reproduction fees and is not available to commercial organisations or for exhibition catalogues.
Therefore, publishers, even of academic books (like university presses), are considered ‘commercial organisations’. The same goes for institutions like Tate, the National Portrait Gallery and the British Museum.
It’s no wonder that, according to a 2014 report by the College Art Association;
- one-third of visual artists and visual arts professionals have avoided or abandoned work in their field because of copyright concerns [as have]
- one-fifth of artists
- more than one-half of editors and publishers
- more than one-third of art historians
In other words, image licensing fees are strangling the scholarship, study and enjoyment of our cultural heritage. Ahead of writing this article, I asked for people’s experiences of dealing with image fees on Twitter. All of the stories were saddening: scholars unable to publish articles with even the smallest circulation; exhibition curators who could afford to borrow a painting for an exhibition, but not to reproduce it in the catalogue; and so on. When it comes to television, image fees play a huge role in determining what sort of art programmes get commissioned, and how they’re made (fees vary for the number of seconds you show something, and in what context). Ever wondered why, when you watch art programmes, we presenters spend so much time talking at you while waving our arms about in meaningless locations? It’s because we can’t afford to actually show you the art we’re talking about.
And then we have to get our heads around the fact that the paintings these museums are charging us to reproduce are already publicly owned. We have bought them with our taxes, we pay for their upkeep. They are part of our national heritage. We can see them at Tate for free - but we can’t reproduce them for free. Even if you’re a scholar who is adding to the world’s (and Tate’s) knowledge of one of these paintings. When you consider how much museums spend on ‘outreach’, and how much they agonise over increasing attendance and accessibility, to then charge to reproduce images is not only counter-productive, it is outrageous. Such a policy discriminates against those who, for whatever reason, cannot physically get to Tate itself; the poor, the distant, the aged, the disabled. As Robin Simon, the editor of the British Art Journal, wrote in an excellent editorial on image fees;
For whose benefit do these museums exist? Do they exist for the benefit of the staff who run them or for that of the public and the world of knowledge they were created to serve? Do they aim to enhance knowledge of their collections? If so, why do they go out of their way to penalize any publication or form of dissemination of images that does that work for them? The use of images of works of art in ‘news media… front covers’ or even on biscuit tins, bathmats or shower curtains, all serve the same purpose, which, to repeat, the Tate defines as ‘to promote enjoyment of, and engagement with, art and artists’.
Some might say; ‘but museums have to raise as much money as they can, especially in the face of funding cuts’. That’s true. But why is it acceptable to monetise publicly owned art? And in any case, does charging fees actually raise money? Answer; not really. The Wellcome Trust recently concluded that the cost of administering their licensing scheme was too high, relative to the income it generated. They now provide images free of charge. I recently asked the licensing manager of a major national institution how much his department made from image fees, after all internal costs were deducted. ‘About £70,000' - which is chicken feed compared to the overall annual income for that museum of £22m (there’s a clue). An extra 10p on every scone sold in the cafe might raise a similar amount.
The most rodiculous thing about image fees, therefore, is that in the majority of cases they serve literally no purpose. They simply lead to money being needlessly transferred around the system, to nobody's gain.
So if these fees are not being levied to raise money, what are they there for? Inertia, mainly, sprinkled with a certain meanness, lack of imagination, and a desire to control. Just as these same museums fought for so long to resist allowing photography, simply because it was something they could ban and were reluctant to allow because it meant embracing change, so they cling to their systems for licensing images. The image licensing staff are in place, there’s a modest contribution to the bottom line, and doing something new would just be too much work. What they don’t appreciate is what businesses call an ‘opportunity cost’; the unknowable value that comes from many more people seeing a museum’s painting, whether it's a scholar alerted to a previously unknown fact, or whether it's someone encouraged to visit Tate because they saw a Hogarth on a poster. You can’t put an immediate 'cost benefit' on any of these things, but they all contribute to the museum’s core mission. As Robin Simon says:
[Fees] are obtained at the greatest possible cultural and educational cost. For a museum that is not a profit; it is a loss.
But, AHNers, there is cause for optimism. I believe we can predict that image fees (again, for museum artworks made by someone who has died more than 70 years ago) will eventually be a thing of the past. It’s only a matter of time, for progress is on the march. In the US, many museums (Yale, The Met, the National Gallery of Art) now allow images to be used for free, in any context. They have done away with the need for anyone to fill in any forms, and for a museum employee to then read and process those forms, and have instead simply released the images, online and in high resolution. And happily, many European museums are following suit; the Rijksmuseum has done the same, as have all of Antwerp’s museums.
And the result? Institutions providing free images are undercutting those which charge. Broadcasters and publishers now heavily source images from free providers. And in return, those museum’s artworks are becoming more seen, discussed and studied than ever before. In some cases, I think we can even begin to point to whole categories of art history becoming more known than others, thanks to free image use. Dutch museums like the Rijksmuseum allow their Rembrandts to be reproduced everywhere and anywhere for free, while French museums charge as often as they can. Is it any surprise that the Dutch Golden Age is now infinitely more popular than French 18th Century rococo art? I don’t think it’s an exaggeration to say that image fees can have an effect on global cultural trends. If you don't see it, you can't like it.
What makes me saddest of all is the fact that UK museums have some of the most restrictive licensing systems in the world. For our new series of Britain's Lost Masterpieces we have had to use images from free providers wherever possible. None of the freely available images were sourced in the UK. In some cases, the very museums we have been helping to uncover a lost masterpiece have charged us a fee to reproduce images.* The absurdity of this is doubled when you consider that the wonderful ArtUK has already photographed every oil painting in the country, and has put these images online. It would take nothing more than a degree of goodwill for ArtUK's partner museums to make these existing, already-paid-for high-res digital photos freely available to everyone at the click of a link. Imagine how that would transform British art history!
So the question is, how long will it take for the majority of museums to allow free image use? It might not be as long as you think, for the foundations of this iniquitous practice are built on sand. I noticed recently that the image agency Alamy, a for-profit company, was charging people to reproduce a painting which I happen to own. Neither Alamy nor the photographer who took the image had asked me, or the museum to which I had lent the painting, permission to do this. Alamy are content to pocket hundreds of pounds a go from my painting, and never tell me a thing about it. And I’m not the only one too; Alamy charges people to reproduce images of paintings which the National Museum in Stockholm has already put into the public domain via their own high resolution images - much to the Museum’s chagrin. Furthermore, on their website, Alamy have covered images of the National Museum’s paintings with watermarks, and suggest that they, Alamy, have copyright over the image. In fact under European law it is not at all certain that they do (see page 3, here).
Of course, I am annoyed by Alamy’s actions. But Alamy’s behaviour in fact shows us just how absurd this whole image licensing system is. Alamy claim, not unreasonably, that if an out of copyright painting is on public display it is ‘in the public domain’, and they can therefore take a photograph of it, and do what they like with that photograph. It’s not their problem if people think that somehow Alamy are licensed by the museum to sell ‘official’ images of the painting, and sign up to pay Alamy, rather than the museum. One of the reasons Alamy get away with this is that publishers and TV production companies think they have to pay someone something to get a 'licensing agreement' for any images they use. But actually, they don't.
So is there anything we can actually do to force the issue? Well, let’s consider this; if websites like Alamy can go into a museum, take photographs, and sell them to publishers, why can’t others do the same, but provide images for free? Imagine a new crowd-sourced website was created, which asked museum visitors to send in high quality photographs of paintings, free of any copyright restrictions. (These days, an iPhone can take a perfectly publishable photo of a painting.) And imagine that this website then made all its images available to scholars and publishers for nothing. Would that be illegal? I don’t think so (but would be glad to hear your views). Would it lead to a revolution in scholarship, publishing and broadcasting? Certainly.
Who’s in?
*Before you say, but broadcasters should be charged because they make profit, I can assure that nobody makes an art programme on BBC4 for the money. There just isn't any.
Update - thanks for your feedback on this. Amazing to read so many of your tales of articles, books and theses frustrated by reproduction fees. Two examples for now:
- Alexandra Loske wrote a PhD on colour in art history, but had to pull her 100 illustrations from the deposited copies, because (as is the way these days) it would be stored online by the university library. Crazy.
- R. F. Jones' first modern biography of William Dobson could only afford to include 9 images.
Many of you have pointed that sites like the one I have suggested already exist in the form of Wikimedia, and Flickr. Partly, however, the problem we need to address is a cultural one amongst publishers. They are so ingrained into thinking they have to pay someone for a licence, that the idea of going to Wiki-anything for an image is inconceivable.
In the meantime, I am collecting names. I think we need a letter to the Times. Which is a rather old-fashioned thing, but need to somehow formalise this issue, and put the ball into the museum's court. As an opening bid, I think we need to go for what we might call the unilateral approach - free reproductions for any use, and not just academic. As we have seen, the definition of 'academic' can be too meanly defined. And it is because institutions take so much care to control, define and monitor what purposes images are being used for that they have to employ expensive staff, and thus need to charge. It's all part of the silly image fee merry-go-round.
