What the THJ v Sheridan copyright ruling might mean for cultural organisations

The recent Court of Appeal decision in THJ v Sheridan has generated a number of articles claiming that the ruling should signify the end of UK museums and galleries seeking to assert copyright in 2D reproductions of out-of-copyright works in their collections. In this article, we consider the merit of these assertions, and what the ruling might mean for cultural organisations and their picture libraries.

THJ v Sheridan

The facts of the case are so far removed from the world of galleries and old masters that one might be surprised that any connection between the two could be made. THJ v Sheridan concerned the breakdown of a relationship between a software developer and a trader, with the appeal focusing on whether certain risk and price charts produced by the software were capable of copyright protection. In reaching the decision, Lord Justice Arnold confirmed that the correct test for originality was whether the work was the “author’s own intellectual creation” rather than what is sometimes known as the UK test of “skill and labour”. 

For a more detailed analysis of the case and its ruling, see our other article here.

Originality for copyright purposes

THJ v Sheridan Arnold did not alter the law in the UK. Instead, Arnold LJ clarified that the High Court judge applied the wrong test. The “intellectual creation” test is derived from CJEU case law (for example Infopaq and BSA) and is considered a higher and more demanding one than the one applied by the judge at first instance. 

Nevertheless, the threshold for originality is still a low one, as is clear in this case, where these incredibly simple graphical charts were deemed capable of copyright protection, even under the more demanding test. Indeed Arnold LJ uses the analogy of building something new using Lego bricks. While this is just an illustration (rather than a positive statement to Lego fans to start asserting copyright in their creations!) it is useful to see just how low the required level of intellectual creativity is. 

A degree of conjecture is required to confidently assert that this ruling confirms that photographic reproductions of out-of-copyright works are not protected by copyright: the ruling is not definitive on this point. It does not involve photographic works, which are themselves a distinct category of protected work, irrespective of artistic quality. Indeed in the judgment, Arnold LJ repeats with approval the Painer ruling, saying that “even a simple portrait photograph may satisfy [the test] in appropriate cases”. What is deemed ‘appropriate’ may be understood by Arnold’s comment that the criterion is not satisfied “where the content of the work is dictated by technical considerations, rules or constraints which leave no room for creative freedom”. 

So instead, one must ask oneself whether the process of making a 2D reproduction of an earlier work involves creative decision-making, or whether the content is dictated purely by technical considerations. The answer to this question must surely depend on the reproduction in question and the extent to which creative choices were exercised along the way. At one end of the scale may be simple digitised images, where the original artworks are put through an automated scanning process and a similarly automated output is generated. But towards the other end of the scale, creating high-resolution reproductions of masterpieces, the act of creating such reproductions is a time-intensive and creatively rigorous process. Various permutations of colour tones are manually selected, and colour matching, balancing and correcting are typically done by hand by trained experts to determine the most realistic, visually pleasing and evocative reproductions. The jury is still out on where this dividing line lies, and to that extent not much has changed following the THJ v Sheridan ruling. 

Narrow scope of copyright protection where creativity is low

A perhaps more interesting and relevant observation in this ruling is that where the degree of visual creativity is low, it does not necessarily imply an absence of copyright. Instead it means that “the scope of the protection conferred by copyright is correspondingly narrow, so that only a close copy would infringe”. This acknowledgement that low creativity means a narrow scope of copyright protection fits neatly onto reproductions of out-of-copyright artworks. Cultural organisations are not seeking to prevent people from being inspired by and producing their own take on out-of-copyright work. However an investment in time, creativity and effort has been expanded into creating high-resolution reproductions and they are entitled to control the use of this layer of new copyright, such that it is.

Use of the © symbol on reproductions

Certain commentators have concluded that this ruling should represent the end of cultural organisations applying the © symbol to reproductions of out-of-copyright work. As above, these reproductions may have their own layer of copyright protection. If cultural organisations consider, in good faith, that the creation of these reproductions does involve a degree of intellectual creativity such that they are original works, then there is nothing in this ruling (or the Universal Copyright Convention) that prevents them from continuing the practice of using this symbol.

Controls on use of reproductions of out-of-copyright work

Copyright is only one element to consider when looking at reproductions of out-of-copyright work. Contractual controls are also key. In most instances these reproductions are valuable assets that are the result of an investment in their creation by a particular cultural organisation. These typically belong to the cultural organisation that commissioned them (where such reproductions are produced by a third party, it is standard practice that any copyright generated is assigned to the organisation). As such that cultural organisation is entitled to control the access and use of these assets, and charge a fee for their use.  

Of course, whether they wish to do so is another matter. While some picture libraries are commercial operators generating an amount of money from the licensing of these reproductions (profits which are in turn reinvested back into the cultural organisation), others shift more towards the creating and sharing of these reproductions as primarily part of the organisation’s "public task", that is for example, for the purposes of widening access to collections, undertaking good collections management practice and record keeping. These latter organisations may be more inclined to make these images available free of charge. In practice most organisations will adopt a mixed approach and there are a number of competing factors to consider when determining how to licence these images, for what purposes, and whether to charge or not. Whether the reproduction has copyright protection need not be a driving factor.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, January 2024