In a groundbreaking verdict, the Court of Appeal has ushered in a significant transformation in the practices of UK museums concerning charging fees for reproducing historic artworks. This highly anticipated judgment, hailed by campaigners, asserts that museums have been erroneously vending “image licences” for works over 70 years old for over a decade.
The ruling holds profound significance as it affirms that museums lack a valid copyright claim in photographs of two-dimensional works already out of copyright. These photographs are deemed part of the public domain and are now free for unrestricted use.
Museums have traditionally exploited copyright as a means to curtail the dissemination of images, coercing individuals into purchasing expensive licences. The notion of scholars sharing photos or using images from museum websites was often met with claims of copyright infringement, prompting compliance from most individuals. Copyright, thus, has been the linchpin holding the image fee ecosystem intact.
The recent judicial pronouncement signals a paradigm shift. Museums had previously leaned on the 1988 Copyright, Designs and Patents Act, which set a low threshold for acquiring copyright. If a photograph of a painting involved some “skill and labour,” it was protected by copyright. However, subsequent case law, including the recent Court of Appeal judgment, has elevated this standard.
In the ruling (THJ v Sheridan, 2023), Lord Justice Arnold emphasized that valid copyright requires the author to have expressed their creative abilities through free and creative choices, imprinting the work with their personal touch. Crucially, he asserted that this criterion remains unsatisfied when the content of the work is dictated by technical considerations, rules, or constraints that leave no room for creative freedom. If a museum photograph aims to reproduce a painting (as it must) faithfully, it cannot acquire copyright.
Lord Justice Arnold further highlighted that the new copyright standard has been in effect since 2009, casting doubt on the foundation upon which most museums have levied image licence fees since then. Eleonora Rosati, Professor of Intellectual Property Law at Stockholm University, says, “Technically, this has been wrong for ten-plus years.”
While some museums, including the Tate, have privately acknowledged the revised definition for years, they assert copyright over their historical collections publicly. The Tate charges fees for supplying high-resolution digital images, claiming these are distinct from copyright fees, which, it contends, do not apply to images not covered by copyright law.
Importantly, this legal development renders the © symbols on UK museum websites and catalogues redundant when the original artwork is out of copyright. There is now no impediment to utilizing these images free of charge. While major UK museums have not pursued legal action over copyright claims on such photos, this ruling solidifies the legal foundation supporting their unrestricted use.
In response to the ruling, the National Gallery conveyed awareness and an intent to review its guidance. Given that the National Gallery has been incurring losses on its image licensing operations, the prospect of abolishing image fees altogether is welcome. This landmark judgment promises practical, legal, cultural, and financial benefits for the gallery, art historians, and the public. This ruling is a rare win for art history for all parties involved.
Following the Court of Appeal ruling, Dr Bendor Grosvenor, an art historian and a campaigner on academic image use, provided additional insights on Twitter, offering detailed feedback from the National Gallery and the Tate. The ruling clarifies that copyright cannot be claimed for direct copies of out-of-copyright two-dimensional works of art. While institutions may continue to charge for the supply of high-resolution files, low-resolution files of out-of-copyright works are now freely accessible. The basis for this is rooted in Lord Justice Arnold’s (THJ Systems v Sheridan, 2023) ruling, emphasizing the requirement for authors to express their creative abilities, and copyright cannot be acquired if technical considerations, rules, or constraints dictate the content. Grosvenor concludes that this judgment is a victory for art history, benefiting everyone involved.
The legal implications and analysis of the ruling can be found in a comprehensive summary provided by Vennershipley: “Originality in Copyright: A Review of THJ v Sheridan.” See Link Below