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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!'"
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.
Really, who took them? The site is Slashdotted, so we don't know. If a visitor to the gallery took the photographs and uploaded them, then it sounds fair enough. If a photographer working for the gallery itself took them, then it seems reasonable to say that they're the gallery's. Actually, the site has just loaded and it seems that the user downloaded the photographs from the NPG's own website. So TFS is misleading again. Is it me or is the sole aim of Slashdot editors to provoke flame wars to increase traffic and ad-revenue on their site?
Aide-toi, le Ciel t'aidera - Jeanne D'Arc.
Unfortunately photos are always copyrighted, even if they are just an attempt at reproducing something not currently covered. You can always copy the text of something out of copyright, photo reproduction should be no different. If the photos are taken in a way to represent more than just the original image, then they should be considered original work. But when they are an attempt to represent just the original image, they should not be copyrightable. It is after all, the original image that was the creative work.
http://www.npg.org.uk/business/images/use-on-web.php
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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
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Maybe I'll get sued for copying their FAQ text now...
Huh. Well, the Foundation has apparently taken the stand that this is okay by them. This was done by a straw poll , no less. (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.)
These sorts of claims probably aren't valid in the United States, which is why museums here don't usually prohibit photography--people can just scan their books or postcards. On the other hand, museums in the UK do prohibit photography, because this allows them to retain copyright over the images. The postcards and books that they sell are still owned by them, and prohibiting photography means that they're the only source for those images.
It's vital to their funding model, and they're just protecting their interests. Suddenly cutting off a major stream of revenue would be catastrophic. On the other hand, museums in the States manage to get by with different revenue models. It's not like it's impossible for them to continue existing, but I can understand why they'd fight to protect their model.
Laws do not persuade just because they threaten. --Seneca
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.
Laws do not persuade just because they threaten. --Seneca
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.
I have a modified IR camera I use that I built to photograph artwork- it's amazing what you can sometimes see 'underneath' the paints the artist chose.
In one gallery in Germany I saw a work of art in IR that had been severely damaged and retouched- it was clearly evident in the IR photograph but not in the VIS photograph. I showed them to the curator (I spoke no German and he spoke no English) and tried to ask what had happened to it in its history (as there was no statement of that on the work).
I swear the man was going to shit a brick. He had a look of pure panic on his face when he saw the IR photograph- I think he immediately ran up there to check on it. I don't think he understood what he was seeing (not surprising) so my wife and I left ASAP.
Now to me, IR would bring value- so would UV photographs of the artwork. I know there are places that can do this much more professionally ... but hey, a hobby is a hobby.
The museum is out of line. In a 'real world' they'd lose. They'll probably respond by banning photography and forcing anyone that does want to do shots to sign a waiver.
that would be so typical of the modern age.
here on wikileaks we have details of covert military operations, evidence that the conspiracy theories are true and (particularly risky, this) photos of paintings from the 1790s.
i mean, wtf?
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.
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.
http://rocknerd.co.uk
The NPG's UK taxpayer-funded mission.
So they're working under UK law. It kinda sucks that our copyright laws and, in some ways, less friendly than the US. Even stuff the government itself produces is not public domain over here. But that's the law here, that's how it works.
Making a high resolution reproduction of a work of art requires special equipment and skills, so I really think it's fair enough if that's copyright - somebody has invested money, skills and effort in making the reproduction be as good as possible. The situation is different in the US but the NPG ain't in the US. If the UK taxpayer funded it and UK law says that it's copyrightable, you can understand the NPG feeling the need to protect the UK taxpayer's investment by maintaining control of the images.
Given they control their own reproductions of the pictures, would it be acceptable for them to deny visitors the right to take their own photographs? I think not. But that's a separate debate because this guy didn't go there and invest the time to make photographs that he would then have had copyright on under UK law, he downloaded them from the National Gallery's website. I agree with the many posters before me that whilst it somewhat sucks that these creative works aren't available digitally in the public domain, the NPG are really being pretty reasonable about this - they've offered to work out terms for lower resolution imagery to be made available to Wikipedia, which is a lot more constructive than you'd expect from a corporate entity. It really looks like they're trying to defend their legal position sensibly whilst still facilitating the transfer of information - good for them.
But, please, Wikipedia users and everyone else - feel free to increase pressure on our government and institutions (and those in other countries) to have a strong public domain and sensible, fair copyright laws. We still have further to go, it's just a question of how we choose to represent ourselves.
1. In the UK, it would be a crime.
2. In the USA it is not a crime.
3. The act was done in the USA.
QED no crime was committed. The problem is that by inference we need a single global law for all electronically copyable information. That includes all photos, art, music, movies, books, etc.
The thing that makes the problem difficult is A. There is no global organization with anything close to the authority or trust to create such a global law and B. There are SIGNIFICANT philosophical differences about the kinds of laws we need. Whether it is is Freedom of the Press issue, a slander issue, or even business model issues (I personally think a 10 year renewable with sequel, copyright system would work best) there is HUGE disagreement still on what is fair and workable.
excitingthingstodo.blogspot.com
I got one of these letters in 2004:
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?
Find free books.
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 http://en.wikipedia.org/wiki/Corel_v._Bridgeman, that's what I was trying to remember. Thank you.
I don't know if this is viable in London as I don't live there. But if it's remotely an option, then there are times when jury nullification is called for.
The juror is a middle-aged small-C Conservative who takes his civic obligations seriously and has come to do a job.
He is in many ways the mirror image of the judge.
He is not your comrade-in-arms.
The geek never quite grasps what the black American through most of our history learned from birth:
Jury Nullification cuts both ways.
It can send an innocent man to the gallows. It can free the KKK to kill again.
Capturing the color, detail and texture of a great painting is a difficult problem in both aesthetics and technology.
It is not point-and-click photography.
If you want to use these images the ethical thing to do is to ask for permission and credit them properly.
It is not unethical to ask for payment in return.
Huh? Did England secede?
Making a high resolution reproduction of a work of art requires special equipment and skills, so I really think it's fair enough if that's copyright - somebody has invested money, skills and effort in making the reproduction be as good as possible.
It takes a lot of special equipment and skills to take apart a 1957 Chevy completely, and then put it back together. Somebody has invested money, skills, and effort into putting it back together as completely as possible. Is the resulting work copyrightable? Of course not. Copyright law rewards creative works, not "hard work" or investment of time and labor.
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.
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The images are unambiguously in the public domain? How so? The museum seems to think otherwise- and I (as a photographer and somewhat knowledgeable in copyright law for photography) tend to agree.
The moment a photographer presses the shutter button to capture an image the photographer owns the right to the image. The photographer- not the corporation who hired them. In some countries a blind photographer can tells someone else to press the shutter button and the blind photographer owns the copyright.
Now the photographer can assign rights, as per a contract, to the entity that has hired them to do the photography work- and that assignment can be irrevocable, single use, multi use, first press, etc. But no matter what when that button went down a copywritten work was created.
So what we have here is a very confusing summary of a legal letter claiming that the museum owns the copyrights and had the original, full size images taken by the photographer, available online but not directly linked. Their excuse is abhorrent, IMHO, to claim that knowing how to use a URL and download something is illegal. I don't think they have a leg there- but not knowing the particulars about the contract signed, who funded it (I'm assuming it was public dollars, but that's an assumption), the business relationship between the photographer and the museum... I think it's a very big stretch to claim their assertions are without merit.
A photographer lighting artwork may (and this comes from experience) spend hours trying to get all the nuances of the painting recorded properly. What would you say if the photographer had to take 9 consecutive images at different exposures and merge them all into a HDR-type image, then spend hours rendering it down to sRGB to view correctly on the screen. Brush strokes can reflect light- perhaps he had to cross-polarize shots carefully.
What I'm saying is that a photo of a painting is still considered a copyrightable item- you may wish it to be derivative to the 'public domain' but if that were the case any photograph in front of a public domain piece of work would automatically be public domain- and it is clearly not.
We don't know all the story, but it is very evident to me that he crossed the line. Intentions are good- I admire it- but definitely did something that was not in the spirit of wiki and may be against the law.
And no, whomever marked my other comments troll- this is not a troll. Just because I'm taking a stand against what you think "Free is right all the time" doesn't make me a troll. I'm providing thoughtfully logically laid out information for additional discussion.