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4 AUG, 2010

Copyright and Art

Posted By Hope Walker

The multiplicity of issues surrounding the question of copyright and its relationship to art are challenging for art historians.[1] There are different laws by country, for example, that make it particularly onerous for scholars who attempt to work in one country while writing and publishing about works of art held in another. In most western countries, however, a work of art goes out of copyright 70 (or sometimes 120) years after the artist dies. In this way, the artist and his/her family can profit from the work, protect the distribution of the work of art during their lifetime and then, a bit later, the work of art falls within public domain where the public can enjoy and use it. In the United States (and several other countries) there are also exceptions to copyright, and one of the central exceptions is that of Fair Use.

Under the Fair Use doctrine (here I am speaking of US law--UK Fair Use law is slightly different and more information on UK Fair Use law can be found here) academics routinely use images for educational and research purposes. The US Copyright Office has published a circular on copyright for educators that states:

Notwithstanding the provisions of sections 106 and 106a, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

Hans Eworth died c. 1575 and, in any event, his works fell out of copyright more than 300 years ago. Even so--and with similar Fair Use laws in the UK--I have now twice been told that I could use an image for this website (under very specific rules) as long as I was willing to pay the collection for the privelage. Although I would never dream of doing so, many art websites simply don't ask for permission. From what I have read, the thinking seems to be that if a image of a work of art outside of copyright is available online (i.e. in the public domain), permission isn't required because the owner of the work of art has no legal right to deny use in the first place.[2] However, I have always taken the approach that, even if it were true that an owner no longer has copyright to their work and an image of their work is in the public domain, I still ask permission to use it. Not, I should add, because I believe that I have a legal obligation to do so. Until recently the question of legality never crossed by mind because my use is covered under Fair Use law. I ask permission out of respect for the owner or collection. The vast majority of private owners and collections care deeply about their works, protect them to the very best of their abilities, and work hard to help scholars produce scholarship that furthers what can be known about their pictures. I also have great respect, not only for the works themselves, but also the people who own and manage collections and it has always been my policy to approach, request permission, hope for the best, and be satisfied with whatever response I receive. And, in fact, most collectors and collections I have asked have readily agreed to allow me to use their images and none of them has ever charged a fee. As I noted, however, twice now collections have told me that I am welcome to use an image for the site if I am willing to pay for it. In each case, the image was already in the public domain and, as a Eworth painting, was well out of copyright.

When I started to think about developing this website I made the decision that I would never pay for images for the website. Firstly, I was a student. I did not have funds to pay for permissions for images. Secondly, my work is educational and entirely nonprofit. I have never charged to look at or offer an opinion on a work of art, I have no ads on the site (nor will I ever), and my entire goal is to further what can be known about these pictures while sharing Eworth's amazing work with the public. These points, among a few others, allow my use under Fair Use law in most countries.

You may be asking yourself how collections can get away with charging for art images that are already in the public domain and out of copyright. I certainly asked myself the same question the first time I was asked to pay for an image for the website. In essence the answer is that they claim copyright, not of the works themselves, but rather of the photographs of the works. Indeed, this is exactly the claim I was presented with recently when I approached a collection, asking permission to use a portion of an image on this website. I was told that "..although the work is well out of copyright we, like most picture libraries and agencies, manage our images as the photograph of the work is in copyright." The collection who wrote this (based in the UK) is making the same claim that Bridgeman Art Library made against Corel Corp. in 1999 when they sued Corel, claiming that by using photographs of works of art under license with the Bridgeman Library, Corel was violating Bridgeman's copyright. In that case, Bridgeman lost - twice.[3] As Robin Allan noted, "The court found that not only had there been no infringement, there was no copyright to infringe. Because Bridgeman's library consisted of art reproduction photographs, the court decided that the work did not meet copyright law's minimum standards of originality."[4]

Although the Bridgeman case was in the United States, it is worth noting that UK law also appears to support the notion of originality and copyright. Francis Dravey's blog on technology and the law offers a wonderful overview of a recent case (between the National Portrait Gallery, London and a Wikipedia administrator) over, among other things, violation of copyright.[5] Dravey notes:

"The first strand of thought in English law culminates in the case of Interlego v Tyco Industries(1988) in which Lord Oliver said: It takes great skill, judgment and labour to produce a good copy by painting or to produce an enlarged photograph from a positive print, but no one would reasonably contend that the copy painting or enlargement was an "original" artistic work in which the copier is entitled to claim copyright. Skill, labour or judgment merely in the process of copying cannot confer originality."

In his blog, Mr. Dravey goes on to explain the history of the law and the question of originality, a question that is likely not to be fully addressed in the UK until a case, such as Bridgeman v. Corel, comes before the courts there. In the mean time, in my experience some UK collections still see image permissions as a revenue stream and are willing to charge scholars for such use.[6]

In some quarters my use of images on this website adds another layer of complication because I willingly share my research and findings with others.[7] Even so, because my site is academic and its findings are posted to advance scholarship and for critical commentary and review, I will always maintain that I am well within Fair Use (under both UK and US law) and will continue to provide content for the foreseeable future. It is unfortunate, however, that some collections have made the decision not to share their works of art with the public because it is the public that is ultimately punished for such choices. I will still be able to view the works of art in question because I am a scholar and I can obtain access because of my credentials. However, members of the public don't always have that same access and look to us, as scholars, to inform and educate. When collections work against that model, by attempting to stifle the flow of knowledge because of the pressure of economics, it is my opinion that nothing good will ever come of it. And frankly, given the nature of the Internet, it isn't likely to be a model that will survive for that much longer anyway. Freedom of expression is one of the fundamental pillars of the Internet and is inherient in its nature. Those who chose to fight that nature, particularly for the sake of commerce, nearly always fail. One only has to take a closer look at the history of music on the Internet to see how the public responded when the music industry tried to stop file-sharing.[8]

Recently a friend sent me a link to Negativeland's 2005 essay on art, music, copyright, and the Internet. I highly recommend it, both for their very thoughtful history of the issue of art and copyright as well as the interesting observations they make about copyright and the Internet. I also recommend 'Illegal Art,' a website by the Stay Free! project, which offers many examples of artists whose use of corporate logos and other copyright images have landed them in court. As the site notes, "If the current copyright laws had been in effect back in the day, whole genres such as collage, hiphop, and Pop Art might have never have existed."

[1] Hilary Bannon does a good job of reviewing the problems for art historians in her brief paper on Copyright Ownership in Works of Art and Images.

[2] The Wikipedia page on art and copyright states that "Accurate photographs of two-dimensional visual artworks lack expressive content and are automatically in the public domain once the painting's copyright has expired (which it has in the US if it was published before 1923). All other copyright notices can safely be ignored." This is but one example. Marilee Mongello's website on Tudor portraits also discusses Bridgeman v. Corel and the use of images in the public domain.

[3] I should say that Bridgeman Art Library has been very generous with me in terms of images and in my experience is very supportive of scholars.

[4] 963. Robin Allan's important report, "After Bridgeman, Copyright, Museums, and Public Domain Works of Art," is available online, here. Although I do not agree her assessment of what will occur in a 'post-Bridgeman world', her summary of the case and the issue is well worth reading.

[5] I should also mention that the National Portrait Gallery, London, has been very supportive of my work and I have never found them to be anything less than generous and encouraging of anyone conducting legitimate academic work.

[6] In fact, that is exactly what the collection manager told me a few days ago, when they wrote, "If I were to say that your use is fair use I would be out of a job as I licence [sic] images for such use as yours on a daily basis." Implicit in that comment is not only the rejection of my claim to Fair Use, but also that the stream of income generated by the license of photographs of paintings out of copyright ensures the manager's job. It is deeply troubling to me when I consider that it is economics that may be the motive behind those who wish to stop the furtherance of scholarship. In an amicus brief, The College Art Association, of which I am a member, has noted that 'Uses for scholarship, art and teaching are, of course, excellent candidates for the fair use defense found in [Section] 107 of the Copyright Act.'

[7] This same collection manager claimed that my use of images on this website was outside of Fair Use because "By posting the image on a website it is beyond non-commercial research, criticism or review as you are making it accessible to others." Of course, the very nature of Fair Use as it applies to scholars and educators is that the material be made accessible so that students and colleagues can learn, research, criticize and/or review it.

[8] In 2004 nearly 70 million people were involved in online filesharing. See Ray Delgado, 'Law professors examine ethical controversies of peer-to-peer file sharing,' Standford University, 2004.

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