The end of museum image fees?
March 28 2019
Picture: via Tate Imates
The European Parliament has voted in favour of a new Copyright Directive. It seeks to create common law on copyright matters across the EU. Many aspects of it are controversial. But one element is extremely important for art historians; Article 14. It prevents new copyright being claimed in reproductions of artworks which are themselves out of copyright (also referred to as being in the public domain.) This new ruling effectively heralds the end of image reproduction fees, because copyright is the glue which holds the whole image fees system in place. The new directive therefore represents an important victory for art historians.
First, a bit of background. As AHN has reported before, there have been competing views as to whether taking a photograph of a public domain painting creates a new copyright. Under UK law (specifically the Copyright, Designs, Patents Act of 1988) copyright was created under a ‘sweat of the brow’ distinction; if your photo of a painting took some effort, it qualified as a copyright. But European law has tended to want a degree of creativity, or ‘intellectual input’ in the image. Thus, most lawyers and legal scholars have taken the view that a photograph which aspires to faithfully reproduce the Mona Lisa does not qualify for new copyright. (Take a photo of the Mona Lisa at a funny angle, with a cat in the shot, and it’s a different question).
Copyright is important, because museums use it to control the circulation of images of works in their collection, even of historic works which long ago fell out of copyright (or were made before it was even a thing). Thus, if you want to publish a photo of a painting by Constable from Tate on your website, you need to sign a licence accepting that Tate owns the copyright of that photo, and that you will only reproduce it once. Furthermore, Tate’s claim of copyright - that little (C) which always appears alongside it (as below) - allows them to prevent others from copying the image from your website. Thus, Tate can keep charging a new fee for the image each time someone wants to use it.
Take that copyright away, however, and anyone can use the image as they like, whether they take it from Tate’s own site, or yours. Article 14 of the new Copyright Directive states:
Member States shall provide that, when the term of protection of a work of visual art has expired, any material resulting from an act of reproduction of that work is not subject to copyright or related rights, unless the material resulting from that act of reproduction is original in the sense that it is the author's own intellectual creation.
More context to what Article 14 means comes in paragraph 53 of the explanatory text:
The expiry of the term of protection of a work entails the entry of that work into the public domain and the expiry of the rights that Union copyright law provides in relation to that work. In the field of visual arts, the circulation of faithful reproductions of works in the public domain contributes to the access to and promotion of culture, and the access to cultural heritage. In the digital environment, the protection of such reproductions through copyright or related rights is inconsistent with the expiry of the copyright protection of works. In addition, differences between the national copyright laws governing the protection of such reproductions give rise to legal uncertainty and affect the cross-border dissemination of works of visual arts in the public domain. Certain reproductions of works of visual arts in the public domain should, therefore, not be protected by copyright or related rights. All of that should not prevent cultural heritage institutions from selling reproductions, such as postcards.
This makes it clear that photographs of historic artworks taken with the intention of faithfully reproducing them will not be covered by copyright across the EU. Member states have two years to implement the directive into domestic law.
There then follow a number of questions. First, is there any chance that the line in Article 14 “unless the material resulting from that act of reproduction is original in the sense that it is the author's own intellectual creation” could ever apply to photographs that seek to faithfully reproduce works of art?Some supporters of image fees say that photographing paintings is a real skill and requires great effort. I agree that it is certainly a skill, but I disagree that it’s ever enough to qualify as a work of intellectual creation, that is, a creative work. I would have more sympathy with their argument if museums didn’t always insist on taking the copyright away from photographers, so that they could exploit it themselves. Also, if we're honest photographing a painting can be pretty routine - if you set your lights up correctly, you can do a large number of paintings in one session without much trouble (I used to be a photographer). And we're now even at the stage where such reproductions are largely automated; The Watercolour World has a scanner which makes fantastic high-res photos at literally the touch of a button. It takes seconds.
For a legal opinion on this aspect, it’s worth reading the view of Simon Stokes of the law firm Blake Morgan. Simon specialises in IP law, and writes:
The effect of this provision is to ensure that across the EU fine art images of works of art in the public domain will only be protected if they are the photographer’s “own intellectual creation.” Whilst in one sense this is merely a restatement of the existing EU copyright law in this area in another it goes beyond it by requiring all member state laws comply. Also most importantly in light of the recital and the intent of the Directive any future argument in the EU that fine art images which seek to be faithful reproductions of the original work underlying them should be protected by copyright seems doomed to failure.
In light of the Directive and the clear line of European cases those operating in the EU fine art picture libraries (including in museums/art galleries) of “faithful reproductions” of fine art works are going to have to revisit how they licence and control reproductions of their images given that copyright protection will now clearly be removed from them under the Directive, even assuming in light of current law there was any copyright in them in the first place. Those using such images are in the happy position of having copyright law effectively removed – the European Commission in its February 2019 Press Release on the new provisions noted that users "will be completely free to share copies of paintings, sculptures and other works of art in the public domain with full legal certainty.”
I think that's pretty emphatic.
Second, will this new EU directive apply to the UK, after Brexit? In short, it’s too early to say. If our ultimate deal with the EU adopts close alignment with the Single Market, then the new directive will have an impact on UK law. If we leave with no deal, all bets are off. But if the Directive doesn’t end up applying to UK law, then the UK will be alone in allowing a copyright regime which severely limits the circulation, study and enjoyment of public domain artworks. In a future where European visual art is all Open Access, but UK art is not, you can imagine how the study of British collections and art history will fare.
Third, will museums stop trying to charge image fees once this Directive comes into effect? Alas not. The Directive marks an important battle won in the fight against image fees, but it’s not the end of the war. Museums who want to charge will still doubtless try and sell images on the basis of a contract, rather than a copyright licence (of course, any attempt to continue claiming copyright in such images will be an act of copyfraud). But it is extremely hard to see how, without the protection of copyright, the practice can ever really be profitable. And as more and more museums adopt, or are forced to adopt, Open Access, then those museums who charge will be subject to the law of diminishing returns. Certainly, they may still find people willing to pay for an image from their collection, but it’s worth asking who that person will be? Will it be a commercial tea towel manufacturer? No. It’ll be a scholar who absolutely has to reproduce a little known Giotto. So we’ll end up with museums commercialising their public collections purely to penalise non-commercial users (which, let’s face it is broadly the situation now anyway).
Finally, is there a risk that museums will now stop putting high resolution photographs on their website, in order to try and protect their ability to sell images? Perhaps, but of course they do this already; the resolution of images on Tate's collection site is a joke, and among the worst in the world (see for example here). It's got to the point now where Tate's collection site is effectively unusable; the public cannot properly see the paintings they own. Ultimately, there must come a point where a publicly funded museum has to decide, which is more important; attempting to raise money in a legally questionable way from image fees, or fulfilling their public mission?
