Museums throughout the United Kingdom do not possess copyrights to license new photos of historic works of art in their holdings, a number of law experts say. Their comments are being used to support a campaign, led by art historian Bendor Grosvenor, to prevent British museums from collecting fees for use of images of art that have gone out of their original copyright, according to Ivan Macquisten of the Art Newspaper. The campaigners say that the fees are detrimental to arts scholarship, and that UK museums should look to institutions like the Barnes Foundation in Philadelphia or the Mauritshuis in The Hague for the way they’ve handled photographs of works in their collections (the former has made available thousands of images from its holdings online for free). The UK government is being asked to look into the problem, and Tate is reviewing its policies for 2018.
“The [European] Court of Justice has made it quite clear: for a photograph to be protected by copyright, it must be original in the sense that the photographer has exercised creative choices and thereby stamped the photograph with their personal imprint,” said Lionel Bently, a professor of intellectual property law at the University of Cambridge. “A photographer who merely seeks to control light and angles to create an image of a work of art is highly unlikely to have created a copyright work.” However, Simon Stokes––a lawyer who wrote the 2001 book Art and Copyright––says that the UK’s understanding of the European ruling hasn’t proved itself airtight in the courts: “On the balance of probabilities, I would say that copyright does not apply [to museums]––but it’s not beyond doubt.” Museums can legally validate reasons for preventing people from taking high-quality images of pieces in their collections and “restricting access under special contract terms”: “In effect, they can utilize land law to set conditions of behavior on their premises and contract law to limit re-use of digital files they supply,” says Bently.
Andrea Wallace, a professor at the University of Exeter’s law school, is a specialist on the effect digital technology has had on various cultural institutions. Her research on the frequently reproduced Mona Lisa––of which she could only find three free versions, via black-and-white negatives, through the Library of Congress in Washington, DC––underlines how hard it is to get access to such material without having to pay for it. Nonetheless, as many public institutions are struggling with severe budget cuts, Wallace understands why museums need the income: “Public funds are decreasing and institutions have to maintain digital and material collections and extend access to them to the international public. That costs money. We should shift our perception of these fees away from being copyright charges, which are not transparent and can be anywhere from dozens to thousands of pounds, towards that of service-based fees, which are much smaller and reflect the actual cost of digitization.”