Fair Image Use Fees  

Just as the industrial revolution radically transformed the world during the 18th and 19th centuries, the digital revolution is affecting most areas of life in the 21st century. Keeping pace with the exponential growth and global reach of digital technology is demanding: new and different platforms and applications continually emerge to stimulate new business and organisational models and ways of working, and vice versa.

Practitioners in the fields of culture and arts have played key roles not only by developing digital technology, but also by embracing the digital innovations of others. Methods of production and dissemination of the arts and culture since the millennium are increasingly driven by digital technology. Perhaps only the visual art sector continues to create and value the unique or limited-edition artwork as a physical object.

Public museums and galleries are increasingly embracing digital technology: not to generate profits for shareholders, but in furtherance of their missions to benefit the public. Although such not-for-profit-share institutions are not commercial art businesses, they nonetheless operate in a business-like fashion to generate sufficient income to meet operational expenditure, and hopefully surpluses to fund growth and development for further public benefit.

Occasionally such income-generating activities are challenged on the grounds that they disadvantage particular public constituencies. A recent example in the UK saw public criticism by art historians of museum and gallery policies and practices for licensing the use of images. In November 2016 the Times published a letter signed by 28 art historians complaining that ‘museum fees are killing art history’. The complainants said they are abandoning academic projects and publications because of a ‘tax on scholarship’ imposed by museums such as Tate and the British Museum which charge fees to publish images of artworks in their collections.

The heart of the academics’ complaint is that there is no copyright in historic artworks. Put another way: if the maker of an artwork in a museum collection died more than 70 years ago, that object is not protected by copyright, is now ‘in the public domain’, and can be copied and merchandised without needing copyright licence.

The signatories complain that they are often required to pay ‘thousands of pounds to illustrate academic books with little commercial potential’, and they urge the UK’s national museums ‘to follow the example of a growing number of international museums and provide open access to images of publicly owned, out-of-copyright paintings, prints and drawings so that they are free for the public to reproduce’.

This public wrangle has revived a hoary old chestnut of copyright law. Put simply: does a photograph of (say) Salvator Mundi (c1500 recently attributed to Leonardo da Vinci) create a new copyright in the photograph? There is no simple answer. Credible and respected expert legal opinion is divided into two key schools of thought and argument that centres on copyright law’s requirement that an artwork will be given copyright protection only if it is legally original. Legal debate arises when experts differ on the legal meaning of originality.

In common parlance, an artwork is original if its main visual features are not copied from another artist’s work. In some legal jurisdictions an artwork is original if its content is the visual expression of the mind and personality of its artist; in others, if its content is produced by the sweat of the brow of its author; in yet others, if its content is produced by the independent skill and labour of its artist. Applying such various originality criteria to photographs of 2D artworks is tricky.

At one extreme it is argued that there can never be legal originality in a photograph that merely re-creates an image authored by someone else; and that the higher the definition and quality of the photographic process of reproduction, the closer the photograph is to the original and therefore is less original itself. The opposite argument is that the higher the definition and quality of the photograph, the greater is the skill and labour and sweat of the brow of the independent photographer whose image passes the legal originality test. There are many shades of expert legal opinion in between those two poles.

Few definitive court decisions have been pronounced on the legal originality question. A leading case on the issue is now nearly 20 years old, and was decided by a US Federal Court in 1999. In Bridgeman Picture Library v Corel Corporation the court ruled that a photograph of an out-of-copyright painting did not pass the legal originality test, and therefore failed to create a new photographic copyright. The court’s thinking was that a photographic copy of, say, Leonardo’s out-of-copyright Mona Lisa, c1503/17, produces only that image, and must therefore be viewed as Leonardo’s ‘original’ image – not the photographer’s ‘original’ image. Although this US court decision strictly operates only in that country, the decisions of courts of foreign countries can, and often do, persuade courts in other countries to follow the approach of foreign courts, especially when the key legal issues and facts are very similar or the same. And in the Bridgeman/Corel case the US court decided the matter using UK law. (Bridgeman is a UK company and therefore had to satisfy the US court that UK copyright law gave it ownership of copyright in its digital images of out-of-copyright paintings.)

In common with most other jurisdictions, UK courts have not yet dealt with a case raising the same originality issue. This leads many UK-based museums and galleries to take the position that their investment in creating high-definition digital images of 2D artworks in their collections (that are out of copyright) does create a new copyright in those digital images which pass the legal originality test. So, for example, if the new owner of Salvator Mundi adopted this same approach, a new copyright would arguably be generated by making high-quality and high-definition photographic reproductions of the work – although it is unlikely that any such copyright claim would be enforceable in the US.

In business terms it makes sense for museums and galleries to charge fees for would-be users of images of works in their collections: income is generated to support their work for the public benefit. In practice it is largely academic whether such institutions own new copyrights in digital images of their collections because they are just as entitled to control access to their online images (and to protect them via digital encryption/encoding accordingly) as they are entitled to control physical entry to their premises.

In relation to access (but arguably not copyright licence) fees for image uses, there are good grounds for public institutions striking a fair balance between, on the one hand, facilitating non-commercial image-user constituencies such as students, educators, researchers, and scholars, and, on the other, making business-like charges to the commercial sector. For example, Tate currently allows free non-commercial use of low-resolution images, and offers subsidised rates for high-resolution images for non-commercial use. And the British Museum states that its fees reflect ‘the significant cost of making more than a million images from its collection available online’ and notes: ‘We do understand the financial constraints faced by authors and some publishers. Charges for any commercial publications are kept as fair as possible and vary according to circulation.’

© Henry Lydiate 2018

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This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.