In December 2023, the New York Times became the first major American media organisation to sue OpenAI, the creator of ChatGPT, over copyright issues associated with the use of published written works to train artificial intelligence technologies. At a time when AI is generating not just writing but art too, perhaps never before have opinions on copyright protection been so diametrically opposed. At one end of the spectrum are those who think that, in this age of rapidly developing AI technologies, all obstacles to creativity should be removed. At the other end are those who believe that digitalisation and an increasingly image-driven culture only serve to make copyright ever-more important.
Although less high-profile than the Times lawsuit, two recent Court of Appeal judgments, relating to bitcoin file formats and graphic images, have created a stir in certain corners of the art world. Assertions have been made that museums will now be prevented from charging fees for the reproduction of the museum’s photographic images of artworks where the underlying original artwork is no longer within copyright (where the artworks are in the so-called ‘public domain’). However, is it really that simple?
Over the decades there has been debate among copyright scholars, lawyers and art historians about whether museums are (or should be) entitled to assert copyright protection and charge members of the public fees to use their images when the underlying artwork has long lost copyright protection and the photograph is simply a faithful reproduction. Critics argue that, on public policy grounds, these images should be freely available to the public to enhance education and knowledge (particularly where the museums are public institutions). The economic arguments for copyright protection (that copyright creates an incentive for artistic creation by ensuring a continuing profit to the creator) and the moral arguments (based on ideas of ‘just reward’ for labours) are, those critics would say, irrelevant where there has been no original artistic creation in the production of a faithful reproduction.
There lies the million-dollar question. Is the production of a photograph, where the very objective of the photograph is to take a perfectly accurate copy of the underlying painting, an original work that can attract copyright protection in its own right?
Under UK law, photography as a medium is afforded copyright protection provided that certain criteria are satisfied, including that the work needs to be ‘original’. Traditionally, the test the English courts applied to determine originality centred upon whether the work is the result of the author’s own skill, labour and judgement. This was a comparatively low hurdle, and even faithful reproductions of antecedent artworks could arguably be protected by copyright.
However, the recent Court of Appeal judgments have now confirmed the use of a different test to assess originality, which states that original works must be its author’s ‘own intellectual creation’. This means that the author needs 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’. The Court of Appeal confirmed that this ‘intellectual creation’ test (which is an objective test) is not satisfied where the content is ‘dictated by technical considerations, rules or other constraints which leave no room for creative freedom’.
Children at the National Gallery. Photo © Malcolm Park
This ‘intellectual creation’ test is more demanding than the traditional skill, labour and judgement test, and it is going to be much harder for museums and institutions to successfully argue that their faithful images of antecedent works are protected by copyright. To this extent, the recent excitement from those vehemently opposed to museum reproduction fees is perhaps well founded. It is now established that there is a more demanding originality test to apply.
From a legal perspective, however, each situation must be taken on its individual facts. Case law has previously confirmed that a simple portrait photograph may meet the ‘intellectual creation’ test in certain circumstances, such as where the photographer has made free and creative choices at various stages of the production in respect of the atmosphere created, the subject’s pose, the lighting, and the developing techniques used.
By its very nature, photography creates a reproduction of what is in front of the lens of the camera at the moment the shot is taken. This inherent feature makes the application of the originality test more challenging for photography than for any other media. One also needs to differentiate the various forms of photographic production. Some methods are plainly akin to photocopying (such as scanning prints). However, other forms may allow for room for the author to leave a stamp of their personality. A high-quality digital image made of a painting may require more creative input from the author to produce the desired result. Sometimes during the production process, images may need to be digitally modified or retouched to remove blemishes, or otherwise enhanced, allowing for creative choices. The question is whether this level of input would be sufficient for a court to find the ‘intellectual creation’ test met. Intellectual Property Office guidance from 2021 – consistent with the position the IPO has held since 2015 – states that ‘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.’ We must wait to see if there will be a test case.
Technological developments are also part of the matrix of considerations here. When I worked in an Old Masters’ gallery nearly 20 years ago, I was always struck by the considerable time, the significant skill and the expensive equipment required for the itinerant jobbing photographers to produce such perfect transparencies of the paintings in the gallery. It may be arguable that recent developments in digital photography have removed an element of skilled labour from photography since then. Nonetheless, the photographic reproduction of artworks still comes at some expense to galleries.
That brings me to my final thoughts. Museums have costs, and those costs include the production and upkeep of their image archives. Many museums are public institutions funded by the taxpayer, and few people would not agree that museums fulfil a public good. So it makes sense that museums may wish to (and perhaps should) charge a reasonable fee for the provision and administration of their photographic images from their archives (even if the underlying works are in the public domain). In any event, the practical reality remains that whether or not those photographic images attract copyright following the application of the ‘intellectual creation’ originality test, the museums will still have the commercial power to charge fees on a contractual basis if they restrict access to the high-quality images sought by potential users.
The late Mr Justice Laddie, a great authority on IP law, wrote in 1996 that ‘The whole of human development is derivative. We stand on the shoulders of the scientists, artists and craftsmen who preceded us. We borrow and develop what they have done; not necessarily as parasites, but simply as the next generation. It is at the heart of what we know as progress.’ As law and practice continue to develop in the light of the ‘intellectual creation’ test, as with AI and copyright, society will judge what is justifiable in the march of progress.
With research and contributions from Anastassia Dimmek, associate solicitor at Withers LLP.
The contents of this article are not legal advice and cannot be relied upon as such. Specific legal advice should be sought on a case-by-case basis.