Is photography inherently creative?

17 May 2018

Region: Headquarters

When you take a photograph of a very old picture, such as an oil painting in an art gallery, is your photograph copyrighted? Does your photograph of another work of art generate a new copyright? Here I assume that the work you are photographing is out of copyright, because the person who made it died over 70 years ago. I must add that this is a complicated subject and I apologise in advance for any over-simplification. I am not a lawyer and the intention of this post is to contribute to a discussion, not provide any advice.

In the United States, the answer follows a ruling in 1991 about copying of a telephone directory and then, more pertinently, one from 1999 where a picture library unsuccessfully took action against a company who sold copies of the library’s photographs of out-of-copyright art works. A copyright work has to be original (the UK copyright act says so at the very beginning) and the US court ruled that a photograph of painting, no matter how skilfully and carefully done, was not original and so did not generate a new copyright. One result of this is that the National Portrait Gallery in London unsuccessfully took action when an American user of their web site copied high resolution images from it and posted them to Wikipedia. [Wikipedia has a page covering this. NB: This is from the Wikipedia and American POV.]

In the UK the situation is different, in that for a long time courts over here have followed what is known as the ‘sweat of the brow’ principle, in that skill and effort were sufficient to produce a copyright. Recently the European Court of Justice have stated that a copyright work must be the author’s ‘intellectual creation’: is this different? The UK Intellectual Property Office approaches this question in its copyright notice ‘Digital images, photographs and the internet’ published in 2015. This says ...

“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.”

The notice does not, however, give a definitive answer, as they point out that “there is a degree of uncertainty regarding whether copyright can exist in digitised copies of older images for which copyright has expired”. I assume that some case law is needed to resolve this, although there are several authoritative legal opinions to support the UK’s ‘sweat of the brow’ position.

What about photographers in all this? In one sense it may not impact on professionals very much. They will be contracted by a gallery, library or art owner to take the photograph and any copyright there may be in the resulting images will usually be assigned over to their client. That will not change. For galleries and museums, any change would be significant. It seems only right and proper to me that organisations who preserve and care for historic works of art have the ability to make money from them in order to continue their work. Licensing of image rights is an important part of this and copyright underpins this in ways that contracts can not achieve on their own. How the gallery’s programme of preserving, photographing and digitising is funded is also important since in some countries the government, out of taxation, funds this process. In others, including the UK, the galleries usually have to find such funding themselves. (I will also emphasise just how difficult it is to prepare and photograph art works properly. Even looking at them is often difficult enough thanks to reflections.)

Since almost everyone now has a camera in their phone in their pocket, grabbing an image of something for your own enjoyment is deceptively easy. Some galleries allow personal photography as long as flash is not used, nor a tripod (both sensible restrictions in any event), although they will still prohibit photography of works that are in copyright. Some are now changing the licence for images on their web sites to explicitly allow further use for non-commercial purposes.

A final thought on any ‘new’ intellectual creation test. Is it really the case that recreating or restoring something requires no creative thought? Any test will need to be very carefully defined and cover circumstances such as colourising old photographs to make them as if they were originally shot in colour, or (as it possibly applies more broadly than photography) painting an accurate reproduction of a flower. Not an easy task.

[May 25th] This blog piece from the IP Kat sheds more light on this subject: Originality in copyright: a meaningless requirement?

Andy Finney is the Society's representative on the British Copyright Council