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

[Raul654]

If they sue him in the US, it'll get tossed out on the basis that the US does not recognize these works as having copright (or any "slavish" reproductions thereof, according to Corel v. Bridgeman); if they sue him in the UK, he can ignore the lawsuit, have a default judgement entered against him, and good luck to them in pursuing it.

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.

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...

Re:NPG web site makes it clear

[BasilBrush]

It makes it clear how the National Portrait Gallery WANTS to make additional money from reproductions of classical artworks. It doesn't make it clear whether that is right. If the lawyer's interpretation of the law i right, the NPG does have the right under UK copyright law to do so. However it's morally wrong because:

1) The law is flawed: The act of photographing a painting with the best quality of reproduction of the original is a technical exercise, not a creative act. It's not essentially different from an experienced photocopier operator making a photocopy. It should not therefore add additional copyright privileges over and above the item that is being photographed.

2) The National Portrait Gallery is a public body who receive public funds on the basis that they display and educate a many people as possible about the artworks they have. The ability to disseminate high quality reproductions via the internet at no cost to them should be thought of as a godsend, not as a financial loss. They are supposed to be serving the public good, not acting like a corporation. Thus even if the law could prevent this happening, they shouldn't use it.

Well, that makes it straightforward.

[Grendel Drago]

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.

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.

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.

"the NPG's taxpayer-funded mission"

[Lemming Mark]

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.