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New Developments In NPG/Wikipedia Lawsuit Threat
Raul654 writes "Last week, it was reported that the UK's National Portrait Gallery had threatened a lawsuit against an American Wikipedian for uploading pictures from the NPG's website to Wikipedia. The uploaded pictures are clearly in the public domain in the United States. (In the US, copies of public domain works are also in the public domain. UK law on the matter is unclear.) Since then, there have been several developments: EFF staff attorney Fred von Lohmann has taken on the case pro-bono; Eric Moeller, Wikimedia Foundation Deputy Director, has responded to the NPG's allegations in a post on the WMF blog; and the British Association of Picture Libraries and Agencies has weighed in on the dispute in favor of the NPG."
I fully agree that the paintings are in the public domain, but it does NOT mean that the digital photos are. If he created his own photos, he could post them. The only question is whether or not a straight copy of a work can be copyrighted on its own... which is why the museum is arguing that artistry went into creating them.
Having done museum copywork in the past, I can assure you that getting high-quality images of paintings is NOT simple - lighting is critical to capture the texture, color, and avoid reflections and shadows. It's not just point-and-click. I'd side with the museum here, sorry!
madCow.
I used to have a sig, but I set it free and it never came back.
And damn those evil public galleries that in Wikipedia's words "restrict access" by putting them in galleries that have free entry and free guided tours!
The situation is problematic, I agree. However, I think museums need something of a shakeup on this issue. Natural history museums, in particular, need to make photographs of specimens much more easily available for research. Most of these museums have government funding streams, and should see the digital dissemination of their collections as part of their mission, not merely as revenue. Their collections are all to often jealously guarded, which is what making them public institutions is supposed to avoid.
First off, I can't even copy some quotes from the article at http://www.bjp-online.com/public/showPage.html?page=865802, because they've done that stupid hijacking of my browser (I know, I'm using IE - I'm at work), and they claim "copyright" over it (despite the fact that their article quotes over people...) Nevermind, View Source to the rescue.
Simon Cliffe of BAPLA says "We understand that other people who have had similar experiences with Wikipedia and Wikimedia Commons have been told that they regard all images of out of copyright material as public domain"
Imagine that - thinking that out of copyright material is public domain!
"and dispute there is any copyright in a copy of an original work"
Not true at all - the point is that making a copy of public domain material doesn't constitute original work. They are perhaps confusing effort with originality.
"If owners of out of copyright material are not going to have the derivative works they have created protected, which will result in anyone being able to use them for free"
Just think, people might be able to use out of copyright material for free! When it's fully allowed by US law!
"but to assert the protection the law provides for their commercial interest"
US law provides them with no such protection. So they'll have to think up another way to profit from other people's work from centuries ago (not that there's any evidence that Wikipedia showing these images will harm their ability to profit - I don't think anyone goes "I'm not going to bother going to a gallery, when I could just sit at home on Wikipedia").
That depends on the reader being at or near the geographical location of the painting. When reading an article about the Mona Lisa on Wikipedia, I expect to see a photo of the article in question for purpose of discussion, not "to see this painting, please visit the Louvre in France"
I'd simply go elsewhere to find a picture.
*.sig
UK resident.
Working on a UK machine.
Exactly. And that is the real crux of this. While copyright is most often a tool for greed. In this particular case it really isn't. The choice is: allow these pictures to be free copied and distributed ad high quality and not be able to raise revenue to allow FREE access to the gallery. Or, allow the status quo to continue and provide an excellent free service to all.
The fact that entry to public museums and galleries in the UK is mostly free is a really big deal. Few countries do this, and it is a great thing for everyone.
The greater good for society is to allow these images to be copyrighted. Whether wikipedia is really interested in the greater good over their own vanity is very much open to scrutiny and debate.
I seem to recall that people from the UK have been extradited to the US and charged, for things they did in the UK that the UK authorities decided were legal (or at least things that they should not be prosecuted for).
And a certain Russian programmer was arrested and jailed in the US for things he did in Russia that were legal there... remember that one ?
Why should the reverse not apply ?
The National Portrait Gallery in LONDON does not charge people who can turn up and enter the premises, which is lovely for people who live in LONDON, but increasingly expensive as your location diverges from LONDON. This means that poor people from Scotland, for instance, ahve little chance of seeing the images in a decent resolution, unencumbered bt the NPG's assininse DRM viewer.
Wikimedia putting these images on the web benefits everyone in the world, including all those people for whom a trip to the NPG and an overnight stay is unfeasible.
Since the NPG has spent the money on digitisation and doesn't recoup it by charging admission, I'm not sure how people NOT coming through the doors will be to the NPG's detriment. Even if they get money proportional to the amount of people coming though the door, I'm not sure that putting the full-res images on the web would deter anyone in the vicinity from going into the gallery and viewing the paintings for real - it's clearly more ideal - and I highly doubt that anyone so dedicated to viewing the images that they'd make the trip from afar, would be deterred by the availability of the digitised images on the web.
No, the better solution is for both groups to compromise. NPG already offered lower-res versions of the same photographs for Wikipedia to use free of charge. I think to retain good-will for all, and not appear to be selfish asstards, Wikipedia should take them up on the offer. The representatives on all sides could then present this as a workable solution to similar future situations without involving courts and lawyers. Everybody wins, including the public.
@Mindless Drivel: 100% of Twitter posts ever Tweeted.
There is a difference. Your photograph was still within it's copyright period.
Copyright extends to 70 years past the author's death (in the UK). Since you are still alive, any photograph you take is obviously still within it's copyright - with one caveat.
The caveat is exactly what is at issue. You cannot claim copyright on a direct copy of someone else's work. You CAN claim copyright on a DERIVATIVE work. So the question here is was the photograph of the painting a derivative work?
The goal of the photograph was to reproduce the painting in digital form exactly as it was meant to be viewed in the gallery. No changes were made, and the painting was not used as the basis for a new work (even a person standing next to it within the shot is a 'derivative' work). Which would mean the photographs in question were NOT derivative works, but merely digital copies of the original, and not copyrightable in and of themselves (they would piggy back on the original copyright).
Which means any digital image of a painting that is in the public domain, is also public domain - as it is not a derivative artwork. And you cannot steal something that is public domain.
In your case, yes, someone stole your art work, because it IS within it's copyright. And regardless of whether they stole a print, the digital image, or any other faithful reproduction of your photograph, it would still be counted as illegally copying of your work. But 70 years after you die, anyone and their dog can take your image with impunity. They can even take the image of someone else's photograph of your image on a screen (as long as it's not altered in any way).
So as someone else said, yes, it might take a lot of technical expertise to faithfully capture these images to do them justice, but that does not suddenly give the person taking them copyright on what is, essentially, a faithful reproduction of the original artwork not a derivative.
By way of example, how about we take the works of Shakespear. Originally released in manuscript form. Someone took that manuscript and typed it into computer text files. Does that mean that person now has copyright on the resulting text file? It certainly took a lot of effort to transcribe the text - but it doesn't matter. Just because it took a lot of effort to do something (it takes a lot of effort to paint a forgery, too) does not infer copyright - if the text is identical to the original shakespear, then it is just a faithful reproduction on another medium and still int he public domain.
Probably for the same reason I can go to Amazon and buy a copy of 20,000 Leagues Under the Sea.
You miss GP's point. The problem isn't that UK will extradite people to Iran (it doesn't). The problem is that UK will extradite people to US, because US demanded that, and a corresponding treaty was signed; however, US will still not extradite people to UK. That's where the hypocrisy is .
Photographs of Public Domain works are not copyrightable under US law. This is a special exception to the general rule concerning copyright and photographs, and only applies to works in the Public Domain. In the specific case of Public Domain works, photographic reproduction of the works is treated as a mechanical process, and not a creative process (the way photographs are normally treated under US law).
This isn't a special exception, it's an application of a general principle: in the US, a work can be copyrighted only insofar as it's at least minimally creative. The biggest general precedent here is Feist v. Rural. So when you do something technically very demanding, but uncreative, you get no new copyright.
If you reproduce ("slavishly copy") a work that was copyrighted by Bob Smith, then your reproduction is also copyrighted by Bob Smith, not you. If you reproduce a work that was in the public domain, then so is your reproduction. The reproduction always has the same copyright status as what's being copied, in all cases, as long as it's a slavish copy.
As I stated in another post, the most fair and equitable solution for all sides is for Wikipedia to remove the high-res versions and replace them with the still high-quality but lower-res versions offered to them for 'Fair Use' by NPG.
Everybody wins, no courts or ambulance-chasers need to be involved.
No, someone has to lose. Either the NPG has to lose a revenue stream they thought they'd get, or anyone who wants high-res images has to lose the ability to get them for free from the Wikimedia Commons. There's no way for everyone to win here.
MediaWiki developer, Total War Center sysadmin