This article was published in the Autumn issue of Historic House: The Historic Houses Association Magazine and is reproduced by kind permission.
It is not uncommon for those running a historic house to receive requests for copies of digital images, whether photographs of artworks or of the house itself. Alternatively, some house owners may wish to proactively license such images. However, the decision whether to make such images available to third parties, and if so, on what terms, is not always straightforward. This article sets out some of the points to consider in making digital images available for third party use.
Two key issues need to be considered: (1) is there any copyright in the image? and (2) if so, who owns that copyright?
It is possible that a house owner possesses negatives that are so old that they are out of copyright. However, as copyright for artistic works (including photographs) lasts for the life of the creator plus 70 years, it can be assumed that only the most historic images are copyrightexpired. If copyright protection has expired, others can be permitted to use that image freely.
However, where copyright still subsists, the copyright owner’s permission is required to copy an image, and to make such copies available to third parties (subject to certain exceptions). In addition, if the image is of a work of art that is, itself, still copyright-protected, then the permission of that copyright owner is also needed. Tracking who owns copyright in an image (or in a work of modern art) can be very time-consuming.
The owner of copyright may be the creator of the work or, where the work was created in the course of employment, their employer (these are the first owners under current UK law). However, copyright
ownership can also be transferred by subsequent written agreement. Take the example of a request for an image of a modern painting that is in the collection of a house. Before making such an image available for third party use, the person responsible for image licensing at the house would need to consider who created both the photograph and the painting, and whether either of these is still in copyright. If this is the case, permission would be needed from the owner of the relevant copyright work, to copy and make available copies of the work.
Any house owner seeking to manage requests for images for reproduction may therefore wish to consider whether a bank of images can be created in which the house owner at least controls the copyright in the images (if not in any contemporary paintings and other works of art reproduced in the images), as these can be licensed without fear of infringing a third party’s rights.
Image licensing terms
If copyright in an image has been cleared, or if the house owner controls the copyright, then the house owner will broadly be free to decide on what terms to grant permission to third parties to use that image.
The terms of permission should in each case make it clear how the image may or may not be used, how long the permission lasts for and whether payment is required. For example, it may be decided to make images available for use for private research purposes, but to restrict or charge for use for commercial purposes. In addition, where a request is made for a high resolution image, a house may wish to reserve the right to charge for this.
There are no hard and fast rules in this area, but it is essential that images are not made available to third parties on terms that are more generous than any permission granted by the copyright owner.
If you require further information on anything covered in this briefing please contact Emily Arnold or your usual contact at the firm on 020 3375 7000. Further information can be found on the Landed Estates page of our website.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, August 2017