8 January 2024
Copyright: The demise of ‘skill, labour and effort’?
Author: Sean Waterman, Head of Intellectual Property, Naomi Korn Associates
Is a photograph or digital image of a 2D artwork that is itself out of copyright, protected by copyright? This is a topic of heated debate often linked to the fees charged by museums and other publicly funded institutions for use of their images.
Since copyright relies on a work being ‘original,’ it has long been argued that no new copyright can arise in a photographic copy of a 2D artwork. In the UK, museums and other bodies have relied on digital images of public domain artworks qualifying as ‘original’ in so far as they resulted from the considerable skill, labour and effort of their photographers. Harmonisation with EU copyright law however shifted the UK away from its relatively low bar of a ‘skill and labour’ test for originality.
A recent ruling by the Court of Appeal of England and Wales in the case of THJ vs Sheridan further confirmed this shift in how a work is defined as ‘original’ and therefore qualifies for copyright protection. Lord Justice Arnold cited CJEU case law in how the Copyright, Design and Patents Act 1988, should be interpreted for copyright to arise;
“What is required is that the author was able to express their creative abilities in the production of the work by making free and creative choices so as to stamp the work created with their personal touch”.
“This criterion is not satisfied where the content of the work is dictated by technical considerations, rules or other constraints which leave no room for creative freedom”.
Although this case was not directly related to photographs of out of copyright 2D artworks, it does have implications regarding how any such cases in the UK would be judged and that the past rulings of the CJEU still have influence in UK courts post-Brexit. Museum photographers strive to faithfully produce accurate copies of the 2D works in their collections, so it is hard to argue that their work would qualify as resulting from creative freedom and is instead the result of technical considerations and other restraints.
The UK’s Intellectual Property Office (IPO) issued a copyright notice in 2015 (updated in 2021) that addressed the question, are digitised copies of older images protected by copyright?
The IPO stated that;
“Simply creating a copy of an image won’t result in a new copyright in the new item. However, there is a degree of uncertainty regarding whether copyright can exist in digitised copies of older images for which copyright has expired. Some people argue that a new copyright may arise in such copies if specialist skills have been used to optimise detail, and/or the original image has been touched up to remove blemishes, stains or creases.
However, according to established case law, the courts have said that copyright can only subsist in subject matter that is original in the sense that it is the author’s own ‘intellectual creation’. Given this criterion, it seems unlikely that what is merely a retouched, digitised image of an older work can be considered as ‘original’. This is because there will generally be minimal scope for a creator to exercise free and creative choices if their aim is simply to make a faithful reproduction of an existing work.”
Given the shift from copyright protection being dependent on the degree of ‘skill and labour’ involved in the production of a work to the exercising of ‘free and creative choices’ it is unlikely that a court of law in the UK would support assertions of copyright subsisting in images that are direct copies of public domain 2D artworks. This presents a dilemma for most of the UK’s museums and galleries. Should they continue to make assertions of copyright ownership in their images? Should they follow the example of Birmingham Museum and Art Gallery and make high-resolution images available online under a CC0 licence? Or, should they continue to charge for access to and the use of high-resolution images whilst relying on contract law instead of copyright law? To find resolution, the UK’s museums and galleries need to align in their strategic and financial objectives with their decisions regarding how, and under what terms they provide access to images of 2D artworks their collection.
Naomi Korn Associates offer a range of Copyright services to help organisations understand how to remain legally compliant when using third party material as well as how best to protect and optimise their assets. We also provide downloadable resources, operational tools and templates, jargon-free advice, practical training and mentoring to ensure organisations comply with copyright legislation on a day-to-day basis. For more information contact info@naomikorn.com.
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