Good News in the Copyright Front

An appeals court in the UK has ruled that if a work is out of copyright, then museum photographs of those works is out of copyright as well.

This will have the effect of preventing museums from erecting toll booths in front of authors who want to comment and research on art.

A recent judgement on copyright in the Court of Appeal (20 November) heralds the end of UK museums charging fees to reproduce historic artworks. In fact, it suggests museums have been mis-selling “image licences” for over a decade. For those of us who have been campaigning on the issue for years, it is the news we’ve been waiting for.

The judgement is important because it confirms that museums do not have valid copyright in photographs of (two-dimensional) works which are themselves out of copyright. It means these photographs are in the public domain, and free to use.

Museums use copyright to restrict the circulation of images, obliging people to buy expensive licences. Any thought of scholars sharing images, or using those available on museum websites, was claimed to be a breach of copyright. Not surprisingly, most people paid up. Copyright is the glue that holds the image fee ecosystem in place.

What has now changed? Museums used to rely on the 1988 Copyright, Designs and Patents Act, which placed a low threshold on how copyright was acquired; essentially, if some degree of “skill and labour” was involved in taking a photograph of a painting, then that photograph enjoyed copyright. But subsequent case law has raised the bar, as the new Appeal Court judgement makes clear.

In his ruling (THJ v Sheridan, 2023), Lord Justice Arnold wrote that, for copyright to arise: “What is required is that the author was able to express their creative abilities in the production of the work by making free and creative choices so as to stamp the work created with their personal touch”. Importantly, he went on: “This criterion is not satisfied where the content of the work is dictated by technical considerations, rules or other constraints which leave no room for creative freedom”. In other words, if the aim of a museum photograph is to accurately reproduce a painting (which it must be), then it cannot acquire copyright.

(emphasis mine)

It turns out that changes to copyright have made this the case since 2009.

There has been a sea change in how many governments and institutions, with the unfortunate exception of patent offices and WIPO, have viewed IP protections.

This is a good thing.