Verified as of 28 September 2026. If anything has changed, let me know and I will update it with the date of the change.
You are preparing a paper on a 17th-century painter and need to reproduce one of their paintings. The artist died centuries ago and the work is in the public domain, yet the best image carries the credit of an image bank or appears behind a museum's licensing form.
To determine whether you may use it, one must distinguish between the work represented, the digital reproduction, access to the file, and the conditions accepted to obtain it. This guide explains the Spanish regime for reproductions of visual art works in the public domain. It does not replace a legal assessment of a specific use.
The rule since 2021
Article 72 of Royal Decree-Law 24/2021 incorporated Article 14 of Directive (EU) 2019/790 into Spanish law. Since that regulation entered into force on 4 November 2021, when the protection period of a visual artwork has expired, the material resulting from its reproduction is not subject to copyright or related rights, unless that material is original by constituting an intellectual creation of its author.
The regulation does not declare every photograph taken within a museum to be free. Its scope is more precise:
- it must be a work of visual art;
- the term of protection for that work must have expired;
- the material must originate from reproducing it;
- the reproduction must not contribute its own originality.
The rule aims to prevent a technical reproduction from using copyright to close off access again to a visual work whose term of protection has already expired.
Faithful reproduction and original photography
A frontal digitisation conceived to faithfully reproduce a painting, an engraving, or a drawing usually leaves little room for individual creative decisions. If it does not reach the threshold of originality, Article 72 prevents the attribution of new copyright or related rights to it.
The answer may change when the photograph incorporates recognisable creative choices. The point of view, lighting, framing, depth, environment, and composition may be relevant, particularly when photographing sculptures, installations, buildings, or other three-dimensional objects. That the object photographed is in the public domain does not automatically render an original photograph of that object free.
That distinction is not resolved by a mechanical rule. 'Photograph of a painting' does not always mean a technical copy, and 'photograph of a sculpture' does not always mean an original photographic work. The decisive factor is the originality of the specific reproduction.
Mere photographs
Article 128 of the Intellectual Property Act grants photographs that do not qualify as works a related right lasting twenty-five years, counted from 1 January of the year following the photograph's creation.
Article 72 establishes a specific rule for material resulting from the reproduction of visual artworks whose term of protection has expired: that material is not subject to copyright or related rights if it is not original. Therefore, a faithful reproduction covered by that article does not regain twenty-five years of protection as a mere photograph.
Outside of that scenario, Article 128 and other rules may remain relevant. The distinction is significant for reproductions of objects that do not clearly fit into 'visual artwork', works whose period has not expired, and photographs that do not intend to reproduce a specific work.
The public domain does not eliminate every limit
That the work and its faithful reproduction are not protected by exploitation rights does not mean that any conduct is lawful.
In Spain, works in the public domain may be used by anyone, but authorship and integrity must be respected in the terms provided by moral rights. Other regulations and rights may also intervene, including data protection, privacy, trademarks, cultural heritage, security, secrets, or rights over added elements.
Before publishing, verify also that the image does not include a protected frame, a scenography, a contemporary intervention, identifiable persons, recent texts, or other works that remain protected.
What an institution may control or charge for
Access and photography within the building
The institution managing a space may establish rules for visiting and limit photography for reasons of conservation, security, organisation, or access contract. Such control over the building and the visit does not in itself create copyright over a faithful reproduction already obtained.
Obtaining and preparing the file
Digitising, colour management, describing, storing, and delivering a high-resolution image entails costs. A museum, archive, or provider may charge for those services or for preparing and providing the file. The charge does not in itself turn the reproduction into a protected work.
A contract accepted by the user
An institution may present conditions to access a download or contract a service. Those conditions operate on a contractual level, distinct from copyright. Their existence, scope, and enforceability depend on how they were incorporated into the agreement, their content, and the applicable regulations. It should not be asserted that any condition published on a website automatically binds any person who later finds a copy of the file elsewhere.
Materials other than the reproduction
The catalogue entry, the curatorial text, the website design, a digital edition, a video, a creative photograph, or a database may have their own protection. That the painting is in the public domain does not render everything that appears on its page free.
What an image bank credit signifies
The credit usually identifies the provenance of the file or the entity supplying it. It does not in itself prove that a faithful reproduction covered by Article 72 has copyright.
If you obtained the file through a contract with an agency, you must review that agreement. If the same reproduction is legitimately available from an open source, the status of that copy must be analysed according to its origin and conditions, not merely by the existence of another commercial version.
Do not remove technical credits or notices to feign a different provenance. Retain the file's page, its rights statement, and the date of consultation.
Where to locate reusable images
The Metropolitan Museum of Art
The Met introduced its Open Access policy in February 2017. Upon its launch, it permitted the use, sharing, and transformation without restrictions of more than 375,000 images of works in the public domain via CC0. As of 28 September 2026, the museum declared more than 492,000 images available under that policy.
In the record for each work, verify that the Open Access or CC0 indication appears. That a work belongs to the museum does not imply that all its images are included.
Europeana
Europeana aggregates objects contributed by numerous institutions. A single licence does not apply to all: each object must display a rights statement. Use the file in accordance with that statement and retain its link.
Europeana's guidelines recommend crediting the creator and the providing institution, indicating modifications and preserving public domain notices. Its public domain usage guidelines are presented as recommendations based on goodwill, not as a contract.
Wikimedia Commons
Wikimedia Commons files may be in the public domain or under various free licences. Each file page contains its own statement and potential requirements for attribution, licensing indication, or share-alike.
The Wikimedia Foundation cautions that it does not guarantee the legal accuracy of all tags. Verify the record, the original source, and the legislation applicable to the intended location and use.
CC0, public domain, and open licence
These are not interchangeable terms.
- Public domain: exploitation rights have expired or the material does not meet the requirements for protection, without prejudice to other applicable rights.
- CC0: a tool by which a holder attempts to waive rights or authorise use without conditions to the maximum extent permitted.
- Creative Commons licence: prior authorisation subject to conditions such as attribution, non-commercial use, no derivatives, or share-alike, depending on the chosen licence.
CC0 does not require attribution as a legal condition of the tool, although citing the author, work, institution, and source remains a recommended documentary practice. Other Creative Commons licences do require attribution.
Before publishing
- Confirm that the visual work is in the public domain in the relevant territory.
- Check whether the file is a faithful reproduction or a photograph with its own originality.
- Examine whether it contains additional protected elements.
- Identify the exact source of the file.
- Read the rights statement for that copy, not a general site description.
- Review the conditions you accepted when downloading or receiving it.
- Save the record, the statement, the URL, and the date of consultation.
- Attribute the author, title, institution, and source clearly.
- If you modify the image, do not attribute the modification to the creator or the institution.
- If the use is international, commercial, or affects heritage subject to a special regime, review the corresponding jurisdiction.
On the open conversation
This guide describes the Spanish rule applicable to reproductions of visual artworks in the public domain and distinguishes copyright from access, services, and contracts. Original photographs of three-dimensional objects, foreign collections, and files with multiple elements may require specific analysis.
If you work in a museum, a publishing house, an archive, or a digital library and identify a change or a necessary clarification, this guide remains open.
Sources
- Royal Decree-Law 24/2021, of 2 November, article 72; entry into force on 4 November 2021.
- Directive (EU) 2019/790, article 14.
- Consolidated text of the Intellectual Property Act, articles 41 and 128.
- The Metropolitan Museum of Art, Open Access.
- The Met, 'Introducing Open Access at The Met', 7 February 2017.
- Europeana, 2025 Public Domain Charter.
- Europeana, Public Domain Usage Guidelines.
- Wikimedia Commons, Reusing content outside Wikimedia.
- Creative Commons, Reusing CC-Licensed Content.