copyright

Hi there, I used to work for an academic publisher on their art history list, and now work for that press on a freelance basis. My job involves the design and production of art books and sometimes I do picture research: collecting photographs (digital or otherwise) of the images to be reproduced and clearing permissions etc, so your question is something I feel I can answer fairly knowledgeably. (Though please note, I cannot offer you any specific legal advice.)

Firstly, copyright expires 70 years after the death of the artist, so you are right that a lot of works are now in the public domain, free of artistic copyright. However, I'm afraid it is not so simple that you are therefore free to reproduce them as you wish. For one thing, the actual photograph of the work will have copyright that belongs to the photographer, or museum/collection that commissioned it. (If someone took a snap of a statue, say, and posted it on flickr with permission for others to use it, then this would be an exception.) If you reproduce a photo without permission you are in breach of copyright.

Furthermore, if a wok is in a private collection, the owner may be unhappy for the work to be published. To give an example, in a book I have just worked on we wanted to reproduce a study for a work by Toulouse Lautrec. The painting is in a private collection, neither the author nor I knew who the owner is. The only photo we could find of the work was in a catalogue for the Royal Academy as it had appeared in a show there. I asked the RA if we could use that photo (fully expecting to be charged for doing so), but they said this would be on condition the owner agreed. They passed a request from me to the owner, to no reply. We had to omit the illustration of the work from the book.

For works which are in copyright, most owners/estates will demand you give a specific copyright line and will charge you to reproduce the work. If you publish without obtaining this permission then again, you are in breach of copyright and could be pursued legally. Some artist's estates are represented by licensing organisations, such as DACS who have a search function online. You would expect to be charged £70 upwards per work, with discounts for multiple works, but please note, that is the artistic copyright fee alone, it does not include any fees related to copyright in the photography or reproduction fees levied by museums. Sometimes that can be in the hundreds of pounds per image. (Some museums also want to see proofs of the image prior to publication to see how it will look in terms of colour etc.)

I appreciate this seems unfair and it undoubtedly penalises art historians over those publishing in other subject areas, but I can only tell you the way it is. I know it is tempting to think that if you self-publish and the sales are modest then it isn't important, or no one will notice, but you would be acting potentially illegally. My advice would be to try to find a publisher who can help you through the process (although many art publishers expect authors to bear their own picture costs I'm afraid, though these might be able to offset against royalties). I should warn you, however, that in the current finncial climate it is very hard to get published. At my publisher the MS would first have to be accepted by the editor as suitable for her list and something the press could market, it would then be sent to a publication committee. If they approved it, it would go to peer review. If peer reviews were favourable it would go back with those to the pub committee.

If you are keen to self-publish, I wonder if it would be better to do so as an online article with links to images of the works you discuss? I have no knowledge of this area having only worked in print media, but someone else may be able to advise how copyright works in that way. You could compile a list of illustrations to accompany the article listing artist, title, date, medium, size and location to accompany it.

I hope you take this reply in the spirit of helpfulness in which it is meant, even though I appreciate it is somewhat dispiriting.