UK's National Portrait Gallery Threatens To Sue Wikipedia User

jpatokal writes "The National Portrait Gallery of London is threatening litigation against a Wikipedia user over his uploading of pictures of some 3,000 paintings, all 19th century or earlier and firmly in the public domain. Their claim? The photos are a 'product of a painstaking exercise on the part of the photographer,' and that downloading them off the NPG site is an 'unlawful circumvention of technical measures.' And remember, the NPG's taxpayer-funded mission is to 'promote the appreciation and understanding of portraiture in all media [...] to as wide a range of visitors as possible!'"

Comments

The law is on London's side

[BadAnalogyGuy]

The paintings may be in the public domain, but the photographs are copyright to the photographer.

So good luck to the dipshit user who uploaded them.

Re:The law is on London's side

[John Hasler]

> The paintings may be in the public domain, but the photographs are copyright to the
> photographer.

Under UK law. As the letter from the lawyer admits, they are probably not protected by copyright at all in the US. Unfortunately, the parties appear to be residents of the UK. Where are the Wikipedia servers on which the photos now reside located?

Re:The law is on London's side

[Raul654]

The user they threatened, and the servers, are both located in the US. There's really no way for them to pursue this.

Re:The law is on London's side

[Vinegar Joe]

The paintings may be in the public domain, but the photographs are copyright to the photographer.

So good luck to the dipshit user who uploaded them.

Doesn't that depend on whether or not the photos were made "work for hire"? Does the concept of "work for hire" exist in UK copyright law?

http://nylawline.typepad.com/photolawyer/work_for_hire/

Re:The law is on London's side

[drinkypoo]

The user they threatened, and the servers, are both located in the US. There's really no way for them to pursue this.

Copyright law is international. Only a handful of nations have not signed on in whole or in part to the concept of copyright as it is known in the USA.

Re:The law is on London's side

[David Gerard]

Bridgeman v Corel establishes firmly in US law that the photos are not in fact creative works, and that the images are public domain. The NPG's letter actually acknowledges this.

Re:The law is on London's side

[Raul654]

The works in the photo may not have copyright, but the fact is, the photos still have copyright. - only if the photograph of that public domain work has sufficient creative input from the creator to create a new copyright. The bar for 'creative input' is fairly low (deciding where to stand in order to take a picture of a sculpture is enough), but a flatbed scan is clearly not enough, as the court explicitly found in the Bridgeman case.
 
  Let's say someone made a cd, where they performed songs that are all in public domain. They still get copyright over their version of the performance. - that is because the performance of a public domain work is different from the original work. These pictures are, by definition, not different.
 
  The same would apply to a photo that you have taken. - No, it doesn't. See above

 

Re:The law is on London's side

[Hognoxious]

Since when did US law apply in England?

Re:The law is on London's side

[Anonymous Coward]

Nope - the uploader is in the US, the servers are in the US, the WMF is in the US. This was unambiguously legal in the US under well-established copyright law.

They're making threats because they think they can bully him anyway.

Yep - even the servers where the images were pulled from was in the US.

No, wait...

'Bullying' him? Hardly...

Re:The law is on London's side

[Weedhopper]

It doesn't.

But the user and the servers are in the US. Thus US law.

Re:The law is on London's side

[xelah]

The works in the photo may not have copyright, but the fact is, the photos still have copyright. - only if the photograph of that public domain work has sufficient creative input from the creator to create a new copyright.

It's a degree of 'skill, labour or judgement' in the UK.

The bar for 'creative input' is fairly low (deciding where to stand in order to take a picture of a sculpture is enough), but a flatbed scan is clearly not enough, as the court explicitly found in the Bridgeman case.

It appears to be generally expected that this won't affect UK judgements. The NPC is also claiming a breach of database right and contract. Presumably this, legally, comes down to a question of whether an infringing act happened in the UK. (Practically speaking I imagine it'll come down to something entirely different, such as taking up there offer of low resolution images in order to avoid the risk of a personal tragedy of a lawsuit). Authorizing another to perform an infringing act in the UK is against UK law, even if the person giving the authorization is not in the UK. This Wikipedia user is specifically accused of this. It's also secondary infringement to transmit something from the UK to another country knowing that infringing copies will be made of it outside the UK and then re-imported (http://www.opsi.gov.uk/acts/acts1988/ukpga_19880048_en_2#pt1-ch2-pb2-l1g24 - 24(2)). Things don't look too good for him from this POV either.

Let's say someone made a cd, where they performed songs that are all in public domain. They still get copyright over their version of the performance. - that is because the performance of a public domain work is different from the original work.

Actually, you get performance rights (in the UK, anyway). You get them because a special bit of law says so.

Re:The law is on London's side

[commodoresloat]

Of course this case won't fall under US jurisdiction, but if it did, this argument would not fly: in Feist Publications, Inc. v. Rural Telephone Services Co. (499 US 340) the Supreme Court held that the purpose of copyright is to promote the progress of science and the useful arts, not to "reward the labor" of artists. It doesn't matter how much work you put into creating a work that is not copyrightable; that doesn't change the character of the work. Again, I'm not sure what the argument would be under British law, assuming they sued him there.

Re:The law is on London's side

[Albanach]

It is a criminal offence if you breach copyright for commercial gain, but uploading photos to wikipedia is non-commercial, so it would be a civil trial.

Did you read my post? What bit of

(e) distributes otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright, an article which is, and which he knows or has reason to believe is, an infringing copy of a copyright work.

did you find difficult? "otherwise than in the course of a business" means non-commercial. So as long as the copyright holder has been prejudiced and the person uploading the images had reason to believe the works were copyright (each page had licensing information for the individual photo) then there's a criminal offense. Given the NPG make money out of licensing the images, proving they have been prejudiced by the making available of high resolution copies is trivial.

Perhaps you know of some case law in England and Wales that suggests this is not enforceable? If not, what is your basis for suggesting that there has to be commercial gain when the Act clearly says otherwise?

Re:The law is on London's side

[Dolohov]

No, but their UK servers were configured to willingly transmit copies of the work to a country where those works are not copyrighted. It is entirely within the realm of possibility to screen connections and send images to only countries where the works are under copyright, but they chose not to do so.

Re:So whose are the photographs?

[Anonymous Coward]

The summary makes that fact explicitly clear:

Their claim? The photos are a 'product of a painstaking exercise on the part of the photographer,' and that downloading them off the NPG site is an 'unlawful circumvention of technical measures.'

Re:Copyright mess

[John Hasler]

> But when they are an attempt to represent just the original image, they should not be
> copyrightable.

And in the USA they aren't. Unfortunately these events are occuring in Europe.

NPG web site makes it clear

[Bazman]

http://www.npg.org.uk/business/images/use-on-web.php

----

Using our images on websites

Do the right thing!

You need permission to use our images on your website.

Here's how to apply (it's easy):

      1. Tell us which images you would like to use (e.g. NPG 1, William Shakespeare).
      2. Tell us how you would like to feature the image, and how long for.
      3. Tell is whether your website is personal, academic, commercial or corporate.
      4. Provide us with the URL and your postal address.
      5. Let us know who is sponsoring the site (i.e. who pays the bills!).

Why not send your application now, by e-mail to rightsandimages@npg.org.uk.

        * We will then reply, to let you know if permission is available.
        * We will also let you know how much it is going to cost.
        * If you confirm you order in writing and provide full payment, we will fulfil your order as quickly as possible and supply the images with a licence to use them in your project.
        * The specific terms of the licence are set out in the invoice (you'll need to get further permission if you want to use the images in any other way) while the general terms are spelt out carefully in our terms & conditions.

For a guide to our rates, or if you would like more details before applying, download our standard pdf website information pack comprising

        * an introduction
        * an application form
        * a table of current rates
        * our full terms & conditions

----

  Maybe I'll get sued for copying their FAQ text now...

No; it's not the collection.

[Grendel Drago]

Under UK law, slavish reproductions of two-dimensional art are copyrightable in and of themselves, even if the original art isn't copyrighted. If the museum created these photos, they can claim copyright on them. Such a claim wouldn't stand up in the United States, but it probably would there.

Re:I can't see that they're wrong

[Anonymous Coward]

Only if the photograph has enough originality to get copyright. In the US, a simple photo of a painting is not copyrighted. In he UK it seems to be unclear.

These plaintiffs are being very reasonable

[Antique Geekmeister]

I've read the complaint. (OK, I admit it, I'm a Slashdot user who Reads The Fine Article.) They've being completely reasonable: they explain the law, they ask for (almost entirely) reasonable steps to avoid the lawsuit, and they offer to cooperate in providing _low resolution_ images for the use of Wikimedia.

If I ever get sued, I want to be sued by these people. They're working with the law and with their client's needs, and not violating the public's needs for information.

Re:These plaintiffs are being very reasonable

[Raul654]

US courts have already ruled that "slavishly accurate" reproductions of public domain works have no copyright protection.

Re:These plaintiffs are being very reasonable

[Bigjeff5]

What possibly makes you think this lawsuit "won't go anywhere"?

Because it happened in the US, and it is completely legal in the US.

It won't go anywhere because there was no violation. Had it happened in the UK there would be a violation, but it didn't, it happened in the US. US law is -very- clear on this issue. Photographs of works of art in the public domain, without some sort of extra creative input, are automatically placed in the public domain. The more accurate to the original you make the picture, the less standing it has for copyright protection.

For example, in the US a picture of the Mona Lisa that is haphazardly taken - cockeyed and includes the frame with the light hitting it at a terrible angle - would land squarely in the realm of copyright. Shitty as it may be, it is original and therefore copyrightable. However, a picture that is painstakingly taken to include the picture and nothing else, with no strange light angles - trying with great professionalism and care to produce the most accurate copy possible - lands squarely in the realm of public domain.

These pictures are the second type. They were downloaded legally from the UK servers, and posted legally to the US servers. They have literally no legal standing in either country - though they may be able to get something through the UK system, I'm not sure. In which case, how do they enforce it? They don't have legal standing in the US to do that either.

I doubt it would be a big enough issue for the UK to deny him access unless he pays - it's a civil matter after all - the only way this guy is affected is if he moves to the UK at some point, then they could collect. Assuming they can sue someone in the UK for what someone in another country did in another country. You generally have to sue in the location the offense occured. Courts don't adjudicate law for an area they have no jurisdiction unless a prior agreement between parties places it in their jurisdiction, or interests of a fair trial force a relocation. It's kinda bad practice otherwise, the principle of which could cause some serious diplomatic issues.

So, it won't go anywhere unless the guy decides to cooperate with the NPG.

Which by the way, if they are offering the same photographs at lower resolution, I think that's fair and the guy should accept that - particularly if he can put a link to the higher resolution images (dunno about wikimedia policy on that). Then it is win-win. But by no means does he have to, he could stick it to them if he wanted.

Re:So whose are the photographs?

[TorKlingberg]

A photographer working for the gallery itself took them. They do not allow visitors to take photos to protect their monopoly of reproductions of public domain paintings. In the US, a simple photo of a painting is not copyrighted because it has no original input. The gallery claims it is different in the UK, but who knows?

Re:Copyright mess

[Raul654]

Unfortunately these events are occuring in Europe. - no, they are not. The user they threatened is in the US, and the servers he uploaded to are in the US.

He could have....

[julian67]

He could have just asked for permission to use the pictures. The NPG is not some corporate hawk, it's publicly funded, having an ethos of education and self improvement for all, in the Victorian tradition. The person who obtained the images chose to ignore this and harvest thousands of high resolution images (why does Wikipedia need high-res to display 96dpi???), circumventing copy protection in the process. The sale of these images, at extremely reasonable and non-commercial rates, is one of the sources of funding for the NPG.

Dcoetzee has brought into conflict two organisations which should normally benefit from each other, damaged the reputation of Wikipedia and all around acted like an idiot.

Sue and be subject to radioactive publicity

[David Gerard]

For several years, the National Portrait Gallery has claimed copyright over public domain images in their possession. Wikimedia has ignored these claims, occasionally laughing. (Bridgeman v. Corel. Sweat of the brow is not creation in US law; go away.) Our official stance in this time has been "sue and be damned."

So the National Portrait Gallery has tried. Here's their letter. A lollipop for every misconception or unlikely or impossible demand. This was sent after (so they claim) the WMF ignored their latest missive. The editor they sent the threat to is ... an American.

A UK organisation is threatening an American with legal action over uploading images that are public domain in the US to an American server — unambiguously, in established US law, not a copyright violation of any sort. I wonder how the case will go.

The letter is particularly odious in that it admits that his actions were completely within US law, but threatens to make his life a misery just because they think they can unless he (an individual) can actually make the WMF do something the NPG wants. This is actually worse than the RIAA.

It's most unfortunate that the National Portrait Gallery considers this in any way sensible behaviour, considering how well we've been going with museum partnerships for Wikipedia Loves Art — the V&A were fantastically helpful and lovely people, who realise that spreading their name and exhibits far and wide is much more likely to get them money and fame than claims of copyright over works hundreds of years old.

I can't see this ending well for the National Portrait Gallery, whatever happens. Anyone who could speak on their behalf at this level won't be in until Monday; I wonder if they'll be surprised at the people politely queueing with pitchforks and torches.

I'll be calling them first thing Monday (in my capacity as "just a blogger on Wikimedia-related topics") to establish just what they think they're doing here. Other bloggers and, if interested, journalists may wish to do the same, to establish what their consistent response is.

Re:Sue and be subject to radioactive publicity

[julian67]

"his actions were completely within US law"

Circumventing copy protection? DMCA anyone? If he did this to a US site he would be charged with a felony. As the lawyer's letter states the act of circumvention of copy prevention took place on UK based servers and he's guilty under UK law.

"Unlawful circumvention of technical measures

s.296ZF(1) of the CDPA provides as follows:

        "In sections 296ZA to 296ZE, "technological measures" are any technology, device or component which is designed, in the normal course of its operation, to protect a copyright work other than a computer program."

s.296ZA(1) of the CDPA provides as follows:

        "This section applies where -
        (a) effective technological measures have been applied to a copyright work other than a computer program; and

        (b) a person (B) does anything which circumvents those measures knowing, or with reasonable grounds to know, that he is pursuing that objective.

As you know, the images from our client's website that you have copied were made available from our client's website using "Zoomify" software. As you know, Zoomify is an application that is used to publish photographic images in such a way that an entire high resolution image is never made available to a user although high-resolution extracts or "tiles" are made available one-at-a-time. Our client used the Zoomify technology to protect our client's copyright in the high resolution images.

By deliberately posting images from our client's website to the Wikipedia website in which the Zoomify software has been circumvented you have therefore acted in breach of section 296ZA(1) of the CDPA.

[edit] "

If you contend that the act of circumvention took place in the US then he's guilty under the far more onerous US law. Whichever way you look at it he did something that if discovered inevitably leads to either litigation or criminal prosecution. The NPG made an attempt to deal with this on a less formal basis and was rebuffed, hence litigition ensues.

Re:Well, that makes it straightforward.

[JustinOpinion]

Why not just put up a poll asking if users should be able to upload random pictures on the internet that don't have a clear copyright assignment on them? What a fucking joke.

And yet, despite the process being "a fucking joke", the community does not allow the upload of random pictures on the internet that they don't have a clear copyright assignment for. In fact, with respect to photographs of public-domain art, the community appears to have voted that only simple reproduction-style photographs of 2-dimensional artwork are presumptively acceptable, since photography of 3-dimensional art would necessary include creative elements (framing, lighting).

You may disagree with the result of their debate and consensus in this (and other) cases, but pretending that Wikimedia's self-policing is "a joke" and that they allow themselves any and all liberties is frankly ridiculous. A large number of Wikipedia pages have those "Have a free picture? Upload it." boxes precisely because they are quite strict about the requirement for images used on their pages.

Re:I use an IR camera as well as VIS

[The_mad_linguist]

They already banned photography.

I got one of these letters in 2004.

[bcrowell]

I got one of these letters in 2004:

Dear Sir,

We notice you have an image of Isaac Newton on your website www.lightandmatter.com/ , which is of a portrait in the
collection of the National Portrait Gallery, London (NPG 2881).

As we do not appear to have licensed a copy of this portrait for use on your website, we wondered whether you would
let us know the source from which you obtained the reproduction.

Although there may no longer be copyright in original portraits from this period, there is copyright in recently taken
photographs, or scans such as those that appear on our website.Unauthorised reproduction of such photographs or scans
may be an infringement of copyright law.

I look forward to hearing from you regarding this matter.

Yours sincerely,

Bernard Horrocks
Copyright Officer
National Portrait GallerySt Martin's PlaceLondon WC2H OHE

I'm in the U.S., and the server is in the U.S. IIRC, I sent them back an email with a link to this article on Bridgeman Art Library v. Corel Corp., explaining that their copyright wasn't legally valid in the U.S. Never heard from them again.

The letter quoted in TFA does sound a lot more aggressive than what I received. Possibly they're more interested in pursuing this case since the number of images is large, and WP has a high public profile. It would be interesting to hear from someone with some legal expertise on whether there would be any practical effect on WP or Dcoetzee if they just ignored the threat and allowed a default judgment to be entered against Dcoetzee in the UK. If Dcoetzee or Jimmy Wales take a vacation in Scotland, do jackbooted thugs meet them at the airport terminal and take them away to Euro-Copyright Prison, where they'll have to spend a 20-year sentence wearing black turtlenecks and listening to French pop music?

Bridgeman vs. Corel

[Animats]

In the US, this is completely legal. That's been settled law since Bridgeman vs. Corel (Corel issued a CD of photos of public domain paintings) and Feist vs. Rural Telephone (phone books not copyrightable; no creativity.). In fact, in Feist, the Supreme Court held that it's a constitutional issue; Congress's right to make copyright law is limited to creative works. Nor does the US have "database copyright", despite lobbying attempts for it. There's also Meshwerks vs. Toyota, which reinforces Bridgeman at the appellate level.

UK law in this area is still iffy. Which is going to be a problem here.

Corel v. Bridgeman. Mod parent up

[nbauman]

Corel v. Bridgeman http://en.wikipedia.org/wiki/Corel_v._Bridgeman, that's what I was trying to remember. Thank you.

Re:Result:

[mwvdlee]

Is the museum claiming copyright on the individual photographs or on the collection as a whole?
It's long since been established that images which can individually not be copyrighted, can be copyrighted as part of a collection.
The originality required for copyright lies within establishing the collection.
The individual images from such a collection may still be freely copied, but one cannot take the entire collection and present them to the public as a singular collection.

It's kind of like how copyright can protect collections of otherwise public data such as telephone books.