Out of Copyright: Clarification of the Law

The recent Court of Appeal case of THJ v Sheridan, which centred on the copyright in a GUI (graphical user interface), has caused concern in the museum and gallery sector around picture sales. This article is intended to settle some of the principles and dispel some myths.

Did this new case change the law of copyright?

No. What the judgment did was restate some of the copyright principles that have applied since 2009 and which have been refined since.

What are the principles at issue?

The question at issue is “What is an original work for the purposes of copyright?”. The 2009 case of Infopaq v Danske Dagblades Forening clarified that copyright can only arise in relation to a work which is original in the sense that it is its author’s “own intellectual creation”. This was a departure from the earlier law which focussed on the skill and labour deployed by the author when creating the work.

So what is the originality test now?

Subsequent case law (before the THJ v Sheridan case) has clarified further that that for there to be ‘intellectual creation’ an author must express their creative abilities in the production of the work by making free and creative choices and stamping the work with their personal touch. Thus:

• If there are no creative choices >
• there is no personal touch >
• the work is not the author’s intellectual creation >
• the work is not original >
• the work does not qualify for copyright.

How does this apply to photographs of out of copyright works?

If you are seeking to determine if a photograph of an out of copyright work qualifies for copyright, you must ask if the photographer made any creative choices when creating the image. If a photographer is told to create an image of a painting and then simply puts the painting in front of a camera and presses a button, it will be difficult to argue that any creative choices have been made. However, to suggest that is how professional museum/gallery/picture library photographers work does a huge disservice to those involved with this skilled and technical work. Creating a good, commercially viable image of an out of copyright painting or statue requires the photographer to make decisions concerning the position of the original work, the lighting, the background, the position of the camera, the camera settings and numerous other factors. To what extent these are “creative choices” and which, if any, should be taken into account when applying the originality test have yet to be determined by the Courts.

What did the judgment in THJ v Sheridan case say about photographs of out of copyright works?

Nothing.

Why is the museum and gallery sector so worried about it then?

In the January 2024 edition of The Art Newspaper the art historian Bendor Grosvenor published an article entitled “Court of Appeal ruling will prevent UK museums from charging reproduction fees—at last.” You don’t need to read the article because the title tells you everything you need to know about it. Mr Grosvenor has, for some years, been campaigning for museums and galleries to make their photographic libraries available at no cost to people like him that like to include museum quality images in their books and TV shows but don’t want to pay for the privilege. Mr Grosvenor uses the judgment in THJ v Sheridan to suggest that “if the aim of a museum photograph is to accurately reproduce a painting (which it must be), then it cannot acquire copyright.” However, as explained above, the originality test has nothing to do with accurate reproductions. If an accurate reproduction of a painting requires the photographer to make creative choices, the test is satisfied. In fact, what Mr Grosvenor’s article neglects to mention is that in the case of THJ v Sheridan very minor creative decisions in relation to the font and colour choices used to visualise bar charts were sufficient to qualify those charts as original copyright works. If the judgment in THJ v. Sheridan tells us anything new, it is that the bar for “creative choices” is set very low.

Should museums be embarrassed about charging for commercial image use?

No. Many museums offer a range of different image licences, depending on the nature of the use requested. At the V&A, non-commercial image use is permitted at no charge and only commercial image use is charged.  The labour involved in making high quality images available for use can be considerable and, for that reason, some museums and picture libraries have ceased referring to copyright completely when making images available and simply charge a fee to cover the cost of making the image available to a user. These are all entirely justifiable positions to take that are consistent with charity law which actively discourages charities from making charitable assets available to people or organizations for personal or private benefit.

The British Association of Picture Libraries and Agencies (BAPLA) released a statement on THJ v Sheridan which can be read here. The Association has approached BAPLA for comment.