Museum copyright: History for sale

It has become common practice for museums across the world to recreate online what visitors may expect to see in their exhibitions, through digital collections.

This may have generated income for the museums, which have adopted licensing business models and learned to monetise their artifacts, but it has also thrown up a host of copyright issues.

As many museums start introducing digital collections, they face the question of whether a photograph of a painting can qualify for copyright protection.

“There are different schools of thought on that,” says Anthony Misquitta, general counsel at the Victoria & Albert (V&A) Museum of Design in London.

“Museums take the strong view that you can have copyright in a photograph of a painting, but there are people who argue quite strongly against that—it’s an ongoing debate,” he adds.

The question is further complicated by whether the painting in question is itself covered by copyright.

“Let’s imagine it’s a painting from the 18th Century and we take a photograph of it. Whether that photograph is a copyright work is a really tricky question,” Misquitta says.

Pieter Van Den Broecke, a partner at Linklaters in Brussels, says “it’s a bit of a stretch to say there is copyright protection on reproductions that are essentially duplicates or slavish copies”.

This scenario was central to a 1999 case in the US, Bridgeman Art Library v Corel. In this case, the Bridgeman Art Library, which owns a large collection of photographs of paintings by European artists, claimed it owned a copyright on the photographs even though the copyright in the actual paintings had expired.

“As always in our field of law, it is not a black and white situation. The law is fairly clear, but the application of the law in the context of museums and works of art that have fallen into the public domain is not always the most straightforward,” Van Den Broecke says.

In the case of the Bridgeman Art Library, the US District Court for the Southern District of New York applied UK law and found that the photographs could not be validly copyrighted.

It said that while the reproductions might require a great deal of skill, experience and effort, the key element to determine whether a work is copyrightable is originality, which the copies lacked.

New media

Van Den Broecke says the issue of copyright also depends on whether the artifact being reproduced is a three- or two-dimensional work.

Take the example of a statue. If you allowed three photographers to take a picture of the statue, it is unlikely the three would take exactly the same picture, he says.

But if you asked them all to take a picture of a 2D painting, the results would, presumably, be very similar or even identical.

"We get only some of our money from the public. We have to generate income and one of the ways we do this is by licensing images." - Anthony Misquitta, Victoria & Albert Museum of Design

“There is, arguably, a much greater level of creativity, skill and labour required to produce a picture of a 3D structure—you have to consider and adjust the lighting, the angle of the work and the background,” Van Den Broecke explains.

But even when making an image of a statue, the element of originality must be present. Misquitta says the V&A, which is home to a plaster cast of Michelangelo’s David, “can’t claim copyright of the plaster cast, which is itself 150 years old, because creating another statue of a statue is not original”.

“But if we were to photograph the copy of the statue, we could copyright the photograph. Similarly, if we created a 3D scan of the statue, we could argue that the scan is a new work,” he explains.

The historical significance of museum objects makes them very popular with movie and TV producers. Penelope Thornton, a senior lawyer at Hogan Lovells, recalls a time when replicas of an artifact had been created for a film the firm was advising on.

“In this scenario, we were looking at potential causes of action the museum could bring against the film-makers for including the replicas. But we decided there was no risk of an infringement claim because the underlying work was out of copyright, so the replica wouldn’t have infringed copyright in the original artifact,” Thornton says.

She adds that the firm also explored whether the film-makers could claim copyright protection on the replicas they had created.

“Widely speaking, the answer to this is yes, because if sufficient skill and labour had gone into producing a replica then it could be entitled to its own copyright.

“In this particular case the replicas were very much an exact copy—the makers had used a physical mould of the original artitfact—so we decided there wasn’t sufficient skill and labour,” she says.

“However, had the replica been created by looking at 2D images of the object, rather than having direct access to it, then yes, a new copyright could potentially arise in that.”

New revenue

One effect of obtaining copyright for digital collections that has benefited museums is the revenue it generates.

The intention to protect this IP is seen on the National Portrait Gallery website, where each reproduction is accompanied by a copyright symbol.

“One might question whether these claims are correct,” says Eleonora Rosati, of counsel at Bird & Bird. “Some museums have adopted the idea that they want to have control over these images, and they license their use for a fee. It’s an important revenue stream for them.

“But others opt for completely open access, so anyone can download these images and use them for free.”

One recent development which may turn this business model on its head is the EU Copyright Directive, specifically article 14.

Under the new legislation, individuals and businesses will no longer be able to claim copyright for a reproduction of an out-of-copyright work, unless the reproduction has itself been granted copyright protection.

“It’s aimed at digital use, trying to ensure that if people share exact copies of visual art which isn’t in copyright, it’s not going to be unlawful,” Thornton says.

One of the obvious implications of article 14 is that it undermines the licensing business model, which could impact museums.

At the moment they seek to rely on their copyright to stop people copying images from their website, but article 14 will make it harder for museums to do this in relation to photographs of out of copyright works, Thornton says.

“It means that somebody might be able to copy the images from a museum’s digital collection and distribute those on the internet, free of charge,” she adds.

One way that museums may get around this, she says, is by restricting the quality of the images they publish online or by using a watermark.

“The V&A has taken the view that article 14 doesn’t change anything, because if the photograph has copyright, it will be protected,” Misquitta says.

However, such photographs won’t have automatic protection—“there are still hurdles to jump over”, he adds.

“We will have to show that taking the photograph required skill and effort,” he says.

At the V&A, the museum takes photographs of its exhibits and makes them free for people to use for non-commercial research and private study.

“We have a separate business where we license the use of these images for commercial activity. We make money out of that, and that is quite controversial,” says Misquitta.

He explains that some view this practice as morally wrong.

“They say museums are funded by the public and the taxpayer has already paid for this, but we get only some of our money from the public. We have to generate income and one of the ways we do this is by licensing images,” he explains.

Rosati adds: “Some museums argue that their digital photographs of artifacts no longer in their copyright term are protected by copyright because by creating a digital copy, they are creating a new type of work which is sufficiently original.”

This claim falls away when the creator of the painting is living.

“In this scenario, the museum needs the permission of the artist because the copyright of the artist extends to the making of copies or derivate works,” she explains.

Moral rights

This leads to issues of moral rights, which relate to the connection between artists and their work.

An example of this is a 1996 case in the UK, Tidy v Trustees of the Natural History Museum.

In 1995, cartoonist Bill Tidy produced drawings of dinosaurs for an exhibition at the museum.

Later, the museum published books with reproductions of the cartoons, but they were smaller and had different colours.

The artist sued for infringement of his right of integrity, but the court determined that the museum’s alterations did not amount to a derogatory treatment of his work.

As disputes concerning digital collections rarely make it to court (museums prefer to settle these matters quickly), the law on copyright issues of this nature is not black and white. While the EU Copyright Directive does put previous case law into statute, it remains to be seen whether it will help clarify the grey areas.

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