A couple of visitors to this site have asked me for advice about how to use images of paintings, etc., without infringing anyone’s copyright. Although I am not a copyright lawyer, this article explains how I tackle this quite complex issue. I hope that it will help others.
Small fish in a big pond
Even when your blog or website becomes well-known and often-visited, we are small fry compared to the many much larger and often prosperous sites, run by media companies, galleries, and others. Although some of them may have some clout, and can afford to employ specialist lawyers and obtain expert advice, we are doing this on a shoestring, and cannot afford to get involved in disputes over copyright. So my aim in using images here is not to do anything which a larger and far richer party might consider infringes on their rights.
Non-commercial, thank you
One very important distinction here is between the commercial and non-commercial. The moment that you start receiving even small donations, income from advertising, or any type of sponsorship in return for what you publish, most will consider your site is commercial. And any commercial undertaking is liable to be asked to pay for the use of images, even though your income may be pitifully small. Some galleries and other organisations make it very clear that, whilst they tolerate or even license images for free use on non-commercial sites, use on commercial sites of any size requires a licence contract and payment – and payments are often surprisingly expensive.
So to keep the use of images simplest, you must remain completely non-commercial. I have been asked to allow ‘contributed editorial’ promotions in return for a financial ‘gift’: I am not particularly keen on the idea anyway, but any such gift would make this blog commercial.
As a non-commercial user, copyright on images of works of art should be very simple: during the lifetime of the artist, and for a period (usually of 70 years) after their death, their work remains in copyright, and any use must be licensed from the copyright holder, or their agent. If only it were that simple.
First, copyright law varies in many details between different countries. As a blog author in the UK publishing through a US-based service, any claimed infringement of copyright could be tackled under the national law of the UK (where the author and publisher is resident), the USA (from where the blog is actually served), or that of the country in which the copyright holder is located. Invariably lawyers pick the one which is most advantageous to them.
Even in Europe, there are details which can make life very complex. In most (possibly all) European states, the term of copyright is life + 70 years, except France. In France extensions may be granted to take into account the world wars, so could extend the term to life + 75 years or so.
There are also considerable differences on what might be considered to be ‘fair use’, and not requiring permission from the copyright holder: these tend to be most generous in the US, but are pretty mean and stingy in the UK. The simple answer is to assume that, if you did try to claim ‘fair use’, the other party will deny it.
Copyright on images
So at this stage, you might be thinking that, provided that your site is non-commercial, once an artist has been dead for at least 70 years, you are free to use images of their work on your site. And you might be right, or you could be horribly wrong.
Copyright law arose to protect the interest of creatives, artists and designers, and the like, and concerns itself with works which involve some intellectual effort in their making. It is not there to protect those who make mechanical reproductions of any kind. So, whilst a painting can be covered by copyright, a simple photographic reproduction should not.
Morally that is correct, but many galleries, museums, and collections make a sizeable income from licensing the photographs which they make of paintings and other items in their collections. Consequently they claim copyright – the standard lifetime + 70 years – on all those images.
There has been a longstanding legal argument among copyright lawyers, and protracted disputes over the issue. It has not yet been properly resolved, and no jurisdiction – not even the EU – has been brave enough to make their legislation explicit enough to make the matter clear.
The best galleries have a page which explains how they treat copyright in their images, and the very best provide good resolution images which are explicitly free to use. This is true for most of the major public galleries in the USA, the Netherlands, and many other countries.
France and the UK are notable exceptions. Few major French collections make any of their images available, and most collections in the UK require you to license them under their terms – which is why you will see credits here to the Tate and the National Galleries, for example, which reproduce their claimed copyright. However much I may disagree with their claims, I am keen not to offend them or cause any problems over the use of those images here.
For paintings, Wikimedia Commons offers one of the best collections in terms of size and scope, and the great majority of the images available there are almost certainly free to use, particularly if you are non-commercial. The major exceptions to that are UK galleries like The Tate and the National Gallery, and Wikimedia Commons usually draws attention to the issue where appropriate.
So if I can find a suitable image in Wikimedia Commons (or direct from galleries which license separately, like the Tate, etc.), I prefer to use that.
I still check the metadata of each image to see whether it bears any claim to copyright. Many Wikimedia Commons images are taken from UK aggregating services which – in the UK at least – may require separate licensing. That all starts getting very messy and time-consuming. If an image has metadata which makes it clear that there is an ‘owner’ claiming copyright, I do my utmost to avoid using that.
There are other sites, such as The Athenaeum, which rival Wikimedia Commons in size and scope, but whose images often have embedded copyright notices, so I tend to use them only when I cannot get suitable images from Wikimedia Commons. I have used WikiPaintings and others in the past, but they each have their disadvantages. I very, very seldom use Google’s image search, at least for images which I would like to publish here, as most images of paintings are too low resolution and do not resolve copyright issues.
Still in copyright
I have used some images of paintings which are still in copyright, but only after obtaining full and explicit permission to do so. So far, my experience in obtaining permission is not good: I wanted to show paintings by Paula Rego and Peter Doig, whose work I greatly enjoy, but despite several emails and a few tweets, have not been able to get anyone to respond to my requests. Some artists and galleries not only respond very helpfully, but go out of their way to help you get just the right images. So it is always worth trying, but don’t be surprised if you get a stern ignoring.
I wish that copyright law was more uniform, and more explicit in allowing fair use of images of art still in copyright, provided that the use is non-commercial. The effect is to make coverage of living and fairly recent artists very poor.
This is exemplified by my problem with obtaining images of Picasso’s painting Guernica, which is still in copyright. Picasso himself ceased obtaining any benefit from that painting when he died in 1973, but since then his heirs have done very well from licensing images of his work. If I wanted to use an image of Guernica here, I would have to pay a commercial licence to Picasso’s heirs, and a fee to the ‘owner’ of the image itself. Those would amount to more than the total annual cost of maintaining this blog!
So, as I cannot invoke ‘fair use’, Picasso’s painting cannot be shown here, even when I discuss it. I am not sure that is what was really intended by the law, and I am fairly confident that, wherever he is now, Picasso would rather an image were used at no cost. But using a ‘stolen’ image would not solve anything, and would risk a demand to take down the image, that article, or even the whole blog. That is not a risk that I would wish to take.
Credits and intent
There are two final matters for the sake of completeness. One is that I try to ensure that every image is properly credited to the artist, to its current ownership if in a public collection, and for the source of the image. The other is that I welcome correction if I have got any of those wrong, and want to respect all intellectual property rights, even if I don’t necessarily agree with them.
I hope that this gives a clearer idea as to how I try to ensure that I do not infringe anyone’s copyright. I believe that copyright law is very important as a means of ensuring that creatives of all kinds are properly rewarded for their work. I am less convinced about what might appear to be a copyright payola which rewards those who have nothing to do with creativity or art.