Image fees - are museums guilty of mis-selling?

November 29 2017

Image of Image fees - are museums guilty of mis-selling?

Picture: The Times

There’s an important article in The Art Newspaper on copyright, which may have a bearing on how UK museums charge fees for images. A leading professor of law (amongst others) believes that museums do not have the right to claim copyright in photographs of artworks which are themselves out of copyright (that is, made by an artist who died more than 70 years ago).

This is significant because copyright is the glue that holds the current image fee system together. By claiming copyright in the photographs they have taken, museums are able to issue (for a fee) licences which permit a single use. The key part of the licence is the demand that publishers include a (C) symbol next to the image - and this prevents other people from simply taking the image (easily done online of course) and reusing it elsewhere, without paying. 

The legal issue boils down to this: under English law, copyright is defined usually as a ‘sweat of the brow’ concept. If someone expended effort in taking a photo of a painting, they can claim copyright of it; but under EU law, a degree of ‘originality’ is involved, and this is seen as ruling out slavish reproductions of existing artworks. 

Now, it is true that the law in this area is not clear cut. There are questions of EU interpretation, and of course in the longer term, Brexit - will English law ignore EU law in this area?* Also, there has been limited case law in relation to photographs of 2D artworks, and then of course much depends on the view of the judge in question should a case ever arise. Supporters of the current image fee system say that because the law is potentially a grey area, then museums can carry on charging. But it seems to me that public institutions should seek to operate entirely within the law, and not exploit a grey area. What legal opinion does not say is; 'museums have a clear right to claim copyright on these images'. If I were a museum trustee I would be urging my institution to check its legal advice on copyright. 

I should also add that I don’t think the issue of copyright is the prime reason museums should change their museum fee regimes; it’s just a useful supporting argument at this stage, which demonstrates the shakiness of current museum practice. 

*It won’t be an immediate change back to English law - for currently the House of Commons is debating a bill to adopt all existing EU legislation into English (or where appropriate UK) law. And I can’t see any political party rushing through changes to copyright law as a priority in the years ahead.

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