About artworks, pictures of artworks… and the possibility of copying them

 

For this month’s blog post, we decided to take a break from Horizon Europe and to instead take a closer look at an interesting copyright issue.

In the past couple of years, our IP Helpline received a notable number of questions on the topic of copyright protection applied to artworks, old and new. Enquirers asked for example:

• Whether it is possible to commercialise t-shirts with Rembrandt’s works printed on them
• Whether it is possible to commercialise a children’s card game representing antique works of art
• Whether it is possible to use a picture licensed under Creative Commons, and turn it into a digital work / NFT, knowing that this picture represents a work of art that is still copyrighted.

 

The answers to these questions turned out a little bit more complex than what our enquirers imagined. Why? Because the questions above are not just about artworks: they are all about pictures of artworks, meaning that the situations described actually involve different layers of copyright. For this reason, it seemed interesting to us to write about this topic, hoping that this can help clear some misconceptions.

 

So, when planning to use pictures of famous artworks in your artistic or commercial activities, where you should start? Are you allowed to print pictures of old paintings on t-shirts? To turn a picture of contemporary artwork into an NFT if you have a licence to use that picture?

Here, a distinction has to be made between two layers of copyright: the copyright that may apply to the original artwork (e.g. painting), and the copyright that may apply to a photograph of this work.

 

About the protection of artworks

Generally speaking, copyright in Europe lasts for 70 years following the author's death. This term of protection has not always been harmonised and has fluctuated over time: for example, older laws sometimes protected works for longer or shorter time periods; some national laws extended copyright protection for works created in given years, due to exceptional circumstances such as wars; etc. Still, it is safe to say that in principle, the copyright on works whose authors died more than one hundred years ago has lapsed.

This means that ancient works (sculptures, paintings) such as Da Vinci’s, Géricault’s or Rembrandt's works are no longer protected by copyright – they are said to be part of the public domain. Accordingly, you are free to reproduce them.

 

On the basis of this principle, and to answer our enquirers’ concerns:

• You can make a reproduction of a Rembrandt painting and have it printed on t-shirts that you will commercialise – because the painting is not copyrighted anymore.
• You can make reproductions of antique works of art and have them printed on a children’s card game that you will commercialise – because these works are in the public domain (an enquirer pointed out that antique works were created long before copyright was a thing – this may not be entirely accurate)
• You cannot reproduce a contemporary work of art (one whose author died less than 70 years ago, such as Marcel Duchamp, Picasso or Andy Warhol) to turn it into a digital artwork without consent of the rightholder (copyright licence), because this work is still copyrighted. Keep in mind that unauthorised copying will in this case constitute copyright infringement, unless covered by a copyright exception (e.g. private copying, teaching, news reporting…).

 

So far, things are rather simple. Most people actually know the rules above and are careful enough to check whether a work has entered the public domain before having it printed on mugs, agendas, t-shirts or card games.

 

The issue is that many times, it is tempting to jump…

• from this principle: “the works are part of the public domain and therefore I can use them in my commercial activities”
• …to this understanding: “the works are part of the public domain and therefore I can use pictures of these works found on the internet in my commercial activities”.

This is a shortcut that is not always accurate and may expose you to copyright infringement claims. This brings us to our second point.

 

About using pictures of old artworks

It is very important to consider that there may be an additional layer of copyright to take into account if you are not reproducing the works of art directly – in particular if you are seeking to re-use existing images of the works. In other words, we are talking here about cases where you would find photos or other artistic reproductions of such works, and would be planning to use such images in your artistic or commercial activities.

Remember that those images themselves may be protected by copyright; as they are not ancient, it is very likely that the copyright would then still be in force. The issue of whether photographs of two- and three-dimensional works of art are protected by copyright as original works is a complex one and is not yet fully harmonised (article 14 of the recent DSM Directive takes a step in that direction, but it remains to be seen how Member States implement it and how it is enforced in practice). In certain countries, case law considers that making a photograph of a two-dimensional piece of art (a painting) does not involve the creativity and originality necessary to obtain copyright protection. The same courts will usually consider that photographs of three-dimensional art pieces (sculptures) may meet the creativity and originality thresholds and may therefore be copyrighted. In other jurisdictions, things are blurrier.

 

All of this to say that it is not fully certain (from a legal point of view) that reproducing photos of ancient art pieces taken by third parties will be risk-free. Depending on the jurisdiction, these photos may be copyrighted, meaning that their unauthorised use may trigger copyright infringement claims. Therefore:

• If you plan to use photos of old paintings in your commercial activities and that you had these pictures taken (e.g. you had a photographer go to the Rijksmuseum and take photos of Rembrandt paintings... if the museum allows photos), you are in principle on the safe side. You are not using any (potential) third-party IP, and the subject matter of the picture is no longer copyrighted.
• If you plan to use images made by third parties (e.g. photos of paintings or sculptures found online), then you should exercise proper due diligence. See for instance the legal policy of the Louvre Museum according to which pictures of the works displayed on the museum’s website are copyrighted, and can be (for some) re-used for free for non-commercial purposes only. The Louvre makes it clear that authorisation has to be sought for any commercial or editorial use of the pictures. Proper due diligence should also be exercised if resorting to stock photos or to images found on Google – just because a picture is available in online photo banks does not mean that it is free of rights.

 

The above is about the issue of (recent) pictures of (old) public domain artworks. As explained, it is a bit of a grey area – as the subject matter of the photo is in the public domain, but the picture might be protected by its own layer of copyright. In cases of unauthorised uses, the validity of the copyright infringement claims made by the picture owners will depend on the jurisdiction; we imagine that such claims may often be weak as the photos may not meet the originality and creativity thresholds necessary to copyright protection. Nonetheless, it is always better to stay on the safe side of copyright, as responding to infringement claims can be costly and time-consuming.

Note that there is absolutely no grey area in the opposite situation – contrary to a common misconception. This brings us to the next issue.

 

About using pictures of contemporary artworks

Back to the case mentioned in introduction: an enquirer recently asked us if he could use a picture of a Marcel Duchamp work as basis for a digital work / NFT. This enquirer was aware of the fact that Duchamp’s works were still copyrighted (Duchamp died in 1968), but asked us to confirm that there was a grey area which he could benefit from, as he would be using a Creative Commons photo of this copyrighted work. In his understanding, the Creative Commons licence applicable to the photo would allow him to re-use it as basis for his digital work and thus to stay safe from infringement claims originating from Duchamp’s rightholders.

This is unfortunately a mistake: first, it is very possible that the picture found online actually infringes Duchamp’s intellectual property rights (being an unauthorised reproduction of one of his artworks). A lot of content found online is infringing content if used outside of copyright exceptions. Second, the licence applicable to the picture (Creative Commons) does not extend to Duchamp’s work. It only applies to the photo of the work, and does not clear any rights regarding the subject matter of the photo (Duchamp’s work which, once again, is still copyrighted). In this case, the way to proceed is to contact the rightholders and negotiate a copyright licence… or to find another creative idea as basis for the NFT.

 

This example is interesting as it illustrates the fact that different copyright regimes can coexist in the picture of a work of art, and do not cancel each other out: the photo is copyrighted but made available broadly under a CC licence, yet no rights are granted in the subject matter of the picture (… so it will be hard to use the photo without infringing the artist’s rights). More generally, note that the issue of whether copyright exists in pictures of contemporary artworks is the same as the one described above for old works: while this is a blurry topic, there is a possibility that the photos themselves are protected. The difference is that the subject matter of the photo is in any case copyrighted – so seeking authorisation (copyright licence) will never be optional.

 

The easiest way to do so is to seek the licence from the rightholders directly. In some cases, the artists or their heirs make it easy for you to ask – a good example is the online form made available by the “Succession Picasso” (the painter’s children and grandchildren), to ask for authorisation to reproduce the artist’s works.

 

Extra care has to be exercised if you plan to use third party pictures of contemporary artworks, especially once again from museums. Museums will usually explicitly state that their photographs are not free of rights. See for example MoMA’s copyright notices and licensing information for one of Andy Warhol’s most iconic works. Warhol died in 1987 so his works are still protected; the copyright in his work vests in the Andy Warhol foundation, and MoMA makes it clear that images of the works of the MoMA collection cannot be used without consent. In this case, using MoMA’s picture of Warhol’s iconic Marylin work means clearing the rights with the Warhol foundation (for the art) and with the organisations designated by MoMA (for the photo).

 

Are you still following? Let’s recap.

If you plan to use/reproduce modern or contemporary works that are still copyrighted, then it is essential to seek permission from the artist or (if he / she has passed away) from the rightholders (heirs, foundation…). If you are interested in using existing photos of such works, it is essential to clear the rights in the photos too (e.g. obtain a licence from the relevant museum).

If you plan to use/reproduce old works which are part of the public domain, no authorisation is needed. However, if you are interested in using existing photos of such old works, it is essential to clear the rights in the photos too: seek a copyright licence, or go for pictures which are explicitly identified as free of rights.

 

NB: keep in mind that the above is based on copyright law and principles only. It is always important to double check whether other considerations or laws may apply in the relevant country. For example, irrespective of copyright considerations or of the work's public domain status, the Italian Cultural Heritage Code allows cultural institutions to take action against certain commercial uses of famous works. It is therefore recommended to always check cultural heritage legislation and, if necessary, to seek legal advice before proceeding.

 

On this note, we wish you a lovely end of the year and will be back in 2022 with more IP content.

Happy Holidays!

 

 

Picture by Eric Terrade on Unsplash