How copyright disserves almost everyone

Over the last year, I have become increasingly convinced that, much of the time, current copyright law works against the best interests of most artists. In apparently protecting their intellectual property, in practice the law serves mainly to generate revenue for commercial organisations and their lawyers.

The most absurd case is, of course, the now refuted claim that Warner/Chappell Music owned the copyright to the universally popular song Happy Birthday to You. Lacking any good material evidence to support its claim, on the weakness of which it demanded royalties from anyone who dared sing it in a commercial situation, it has now agreed to provide $14 million to return to those victims of corporate lawyers.

In many other settings, demanding money without just cause would be considered extortion; in copyright (and patent) cases this is accepted as the norm.

However, the main cause of my concern relates to current practice on the images of paintings. Over the last year I have wasted a lot of time and effort, and done considerable disservice to many fine artists, because of the absurdities here.

Typical examples are the works of JMW Turner, and Pablo Picasso: major artists who are both long dead.

Turner died in 1851, and no matter whose legislative implementation you care to consider, his paintings have long since come out of copyright protection. However the largest collection of his works is that held by London’s Tate Gallery, under Turner’s bequest that they should be ‘for the nation’. As he neglected to include colour photographs or digital images with his bequest, the Tate continues to claim copyright over its digital images of his paintings, and the only way that I could (definitely) use any of them here would be to pay for a commercial licence, despite the fact that this is not a commercial site.

As a result, whenever I want to use an image of Turner’s work, I have to locate one which has been made without the involvement of the Tate Gallery. Now that it permits photography, those relatively few works which are on public display are becoming more accessible for this type of use. But images taken on digital cameras by visitors are seldom of as good quality as those made in optimal conditions by professionals.

The end result is that I am often forced to use images of Turner’s paintings in other collections. Look across at the captions to this blog’s images, and you will find that many British painters are best represented by their works in US collections, because British galleries block use of the images which they have.

Recently the National Gallery in London has been releasing many of its images for free use on non-commercial sites, which is a good step forward. But it limits the dimensions of those to no more than 800 pixels on either axis. For a large or detailed painting, as you may have noticed, this does not do the work any justice.

I wonder whether Turner, Constable, Gainsborough, and others would feel that this was working in their interests?

The situation with Picasso is even worse, as it is only 43 years since his death, and all his works are therefore still protected by copyright under most legal systems. Having checked with the syndicate formed by his heirs to manage his copyright, they make no allowance for free non-commercial purposes, and every use of an image of his work requires a fee.

In the UK this task is administered by DACS, who charge websites according to the number of “downloads”, which I suspect means image views, over the ten year licensing period. For a single image of one of Picasso’s paintings, their standard ‘digital only’ charge for up to 10,000 views ranges from £73 to £153. For a non-commercial site those are preposterous and unaffordable, and just the same as for a commercial site. Even worse, those fees are merely to use an image of a painting, and do not include further costs for the image itself, and its copyright.

So yesterday, when I needed to show you an image of Picasso’s Guernica (1937), one of the most important paintings of twentieth century art, I was unable to, and had to provide a surrogate.

Surely, you are thinking, use of such images here is covered by ‘fair use’ exemptions from copyright?

No, at least not in the UK, and probably not in the USA either. But the law on copyright is so complex that no one is prepared to state exactly what ‘fair use’ is. So you can either publish and wait for the ‘cease and desist’ letter, or not publish at all.

Neither is there any clarity on which law is applicable to this site. In theory, US, EU and UK law should be essentially the same, but – particularly when it comes to fair use provisions – there are important differences. The Tate Gallery seems able to enforce its copyright on images of Turner’s paintings in the UK, and maybe other EU countries, but is unlikely to be able to do so in the US. Probably.

I write these pages here in the UK, but publish them to a US server, from which you obtain them. Does this make the use of images on this site subject to UK, EU, or US copyright law? I suspect that, in the event of any dispute, the copyright holder would get their lawyers to choose the jurisdiction of greatest advantage to them.

So, as you will have noticed, paintings which might remain in copyright, and images of paintings over which copyright is claimed, are absent from this site, and from many other non-commercial sites. This is not, surely, what the artist wanted, is not good for you as the reader/viewer, is not good for me in effectively constraining what I can and cannot write about, neither is it good for the galleries whose valuable works pass unmentioned and unshown.

This is true not only for small sites such as this, but for the giants such as Wikipedia. Try browsing Picasso’s works on its pages, and you will see what I mean.

However the companies which exist to extract – quite rightly – royalties and fees for commercial use cruise on happily maximising returns on their property, and rich pickings for their lawyers who defend that property.

And no one sees any need to change the law and clarify the position for non-commercial website use. After all, they’re not making any money out of this site, the tens of thousands of others like it, or even Wikipedia.