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."

Comments

Pictures versus digital photos...

[MadCow42]

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.

Re:Pictures versus digital photos...

[Hope Thelps]

Likewise, while it may not be easy to photograph one of these works, you are certainly not adding anything to the actual content of the image; indeed, you are actively trying not to. Technical expertise went into creating them, yes. Artistry, no.

That's like claiming that you're not adding anything when photographing a person. Realistically, we know that in either situation the photographer is applying their creative skill and making choices and judgments about what aspects to capture. The photograph will NOT be exactly the same as the original - it's a representation. Capturing the texture and the qualities of the canvas, deciding what lighting to use (and let's face it that affects the colour, the perception of the texture, everything), the angle to use... there is every bit as much creativity in applying these choices to photogrsphing a painting as in photographing anything else. Pretending that it's eqivalent to chucking something on the photocopier and pressing a button is silly.

Yo may "try not to" make any artistic choices in photographing a painting just as you may "try not to" when photographing a person but realistically you have to. And in either case the photographers are exercising artistic skills.

Re:Pictures versus digital photos...

[blackraven14250]

Against an American in America posting to an American website.

Re:Pictures versus digital photos...

[Martin Spamer]

However the US is a signatory of the Berne Convention.

The Berne Convention requires its signatories to recognize the copyright of works of authors from other signatory countries.

Recognising the copyright of a work created outside the the US is a different set of circumstances to refusing to grant a copyright to a digital photo created in the US.

A court might consider a work created and copyrighted outside of the US differently to a work denied copyright in the US under Bridgeman Art Library v. Corel Corp.

Re:Pictures versus digital photos...

[Marcika]

What we need is a UK Wikipedian to go down to the NPG and snap some photos and put them on Wikimedia under a CC license so this can all be dropped. I know in DC the Smithsonians sometimes don't allow flash photography when it could damage the work but I think that's only on special items and items that have been lent to the museum from a private/personal collection. So respect them and avoid those pictures. Any art teachers out there in the UK that want to offer their kids extra credit for some point and shoot photography and correctly labeling/wikipedia-ing the photos?

We would do it if we could. But in most UK galleries (the Tate, the Tate Modern, the NG, the NPG and lots of others), photography is expressly forbidden even without flash -- and it is vigorously enforced. This regulation was put in place to prevent exactly the scenario that you describe.

Re:Pictures versus digital photos...

[dragons_flight]

No, no, no.

Berne requires that the US protect foreign copyright holders if and only if equivalent works published in the US by US citizens would be protected.

If a work is intrinsically ineligible for copyright in the US then the US does not and will not honor any foreign laws that say otherwise.

Re:Pictures versus digital photos...

[mrchaotica]

I think we'll have to agree to disagree on whether there's any artistry in photographing a painting...

On the contrary, you're just flat-out wrong -- at least for the sort of photography (for the purpose of archival/preservation/digitization) we're talking about here. The artistry in photography is expressed by the choices of the photographer, but no choices were made! Did the photographer choose the subject? No, he's just systematically shooting each painting in the gallery. Did the photographer choose the composition? No, it's rigidly defined to be orthogonal to the painting and cropped at the edge. Did the photographer choose the lighting, colors, effects, etc.? No, he just used whatever lighting and camera settings would best preserve the color gamut of the original (and "best" isn't his choice either; it means minimizing the measured, mathematical difference). It's a mechanical process, not a creative one!

Now, there can be artistry in photographing a painting, but the photo would have had to been made for some purpose other than digitizing an existing work. For example, this photo (that I found randomly from a Google image search) is copyrightable because it was creatively composed. For another example, this one from one of the images being disputed, perhaps even this would be copyrightable (even though the original is certainly not) because whoever did the cropping had to creatively choose what to focus on -- and the copyright would belong to the cropper, not NPG.

Re:Pictures versus digital photos...

[vadim_t]

I disagree.

I don't care how hard it is, the result is not creative because you're not trying to express yourself, you're just trying to work around the limitation of that the painting can't be taken off the fall and fed into a scanner.

The desired result is an accurate reproduction of the painting, and that's precisely why it's not creative. How hard you have to work to get there is completely irrelevant, the fact is that the end result looks as much as the painting as possible, and any other photographer given the same task would attempt to produce something that looked similar.

Otherwise I could easily obtain copyright for a copy of anybody's work, I'd just have to do it by a laborious method.

Re:Pictures versus digital photos...

[Kehvarl]

I think the point being made is: the photographs were created with the intention of being as faithful to the original paintings as possible without adding any new creative input. Doing that in photography is hard work, an incredible amount of time and expertise goes into the setup for the picture.

In the US, such a faithful duplication of a work that is in the public domain is also considered part of the public domain. The point isn't that the duplication was necessarily easy to perform, but that the duplication was performed with the minimum possible amount of new creative input so as to remain as faithful to the original as the duplicator could manage. This doesn't mean that any image that incorporates source material from the public domain is automatically impossible to copyright, but it does mean that in order to copyright it the new work would have to be something other than a maximally-faithful reproduction of the original.

You're right, the creation of the copies likely involved a significant expenditure of time and effort and requires a great deal of skill. However, in the US, the amount of effort required to do something has never been part of the test for whether a work can be copyrighted.

The fact that the portraits are in the UK, and the work was done by a UK photographer at the behest of a UK organization means that, in the UK, those works may be considered copyrighted. However the contention thus far has been: in the US they're not considered copyrighted.

Re:Pictures versus digital photos...

[mrchaotica]

Did the photographer choose the lighting, colors, effects, etc.? No, he just used whatever lighting and camera settings would best preserve the color gamut of the original...

Sounds like a choice to me.

Sure, in the same way that answering "four" when asked "what is two plus two?" is a choice. Or, for a less "trivially easy" example, how solving a crossword puzzle correctly instead of incorrectly is a "choice." Or in other words, it's really no choice at all -- it's either right or it's wrong, and you don't get to decide which is which!

The fundamental error in your thinking is that you think it somehow matters whether the thing was easy or hard to create. Here's a hint: it doesn't. Not even slightly! I could spend six seconds scrawling stick figures on a napkin and it'd still be copyrightable. Or I could spend 50 years painstakingly weighing every individual grain of sand in a jar and recording it into a database, and it still wouldn't! Creativity and effort are orthogonal; copyright depends only on the former.

Oh, and by the way: my girlfriend is an artist and has had to photograph her work before, so I do know how difficult it is. But that still doesn't give the photo it's own copyright separate from that of the original!

Globalisation

[paulhar]

Welcome to globalisation. Laws in the US aren't the same as the ones in the UK. In the UK we don't have fair use laws.
I'm wondering why this is different to the music mess caused by allofmp3; everyone was so upset that the Russians system was different and against "our" laws.

One of a couple of things is going to happen as we continue the Digital Revolution. Either we're going to need a global legal system since all this internet stuff is global, or we're going to have to shut down the internet and make it the "countrynet" so that everything you do is contained in the same legal framework.

Or, head, sand, bury.

This isn't a Robin Hood story

[waderoush]

Defenders of the Wikimedia Foundation say the images are in the public domain (even though they aren't under UK law) and applaud Coetzee as if he were some kind of Robin Hood. Unfortunately, it's a case of the poor stealing from the poor. If all museum images were simply appropriated by file-sharers under the rationale that they *should* be in the public domain, pretty soon there wouldn't be any museum willing to pay for the digitization of important works, and we'd all be worse off. See the rest of my argument here: http://www.xconomy.com/national/2009/07/17/art-isnt-free-the-tragedy-of-the-wikimedia-commons/

Re:This isn't a Robin Hood story

[Fittysix]

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.

Re:This isn't a Robin Hood story

[Xest]

Just to add some perspective to your comment though, because it doesn't tell the full story, the reason most museums don't do this is because whilst yes, they receive public funding, they also make a small fortune from gift shop sales from visitors or for charging for special exhibitions.

Their argument is that government funding alone does not provide them enough to run top end museums.

I don't know the first thing about their finances, I haven't look into it, but they do have reasonable arguments against doing what you say. Whether their arguments are valid, and whether the reason they need this extra cash is because they're not efficient enough with what they are given I do not know. Certainly in the UK though, most museums I've been too seem to be some of the most well run of all public institutions compared to the jokes that are places like local government and such.

I agree it'd be nice if you could see more on their websites, if more of the information they have was available free digitally, but the truth is we do not know if this is financially viable or not. If they lose visitors in doing it such that they ultimately lose income and can't afford to provide great exhibits in the first place then the idea you suggest is pointless. If however they can do it without detriment then as you say, they should.

Re:This isn't a Robin Hood story

[delt0r]

Museums do not and should not need to turn a profit. Hell in the UK they are all free (at least last time i was there). There purpose is preservation of important cultural and historic items. They get money from tax payers to do this... Digitization is part of their job. Not some new way to create a new revenue stream.

Re:This isn't a Robin Hood story

[thejynxed]

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.

Stealing hi-res versions

[patch0]

It kind of worries me that he hacked in and took the hi-res images. We run a gallery of biological images and it costs us a lot of money and effort to digitise our 80-100 year old collections in order to make them useful to the public and scientific community. We do want our images in the public domain and we do want them used, but we need to have the cash to keep doing this work as a small charity so clearly there needs to be some balance. If someone hacked in and took our hi-res images it might jeopardize our ability to add other images on our already shoe-string budget. If he gets away with that I'd be quite upset to be honest...

Re:Stealing hi-res versions

[Venik]

It's a bit unclear if he really "hacked" anything. The lawyers allege he "circumvented the technical measures", aka the "Zoomify" applet. However, "Zoomify" is intended to make it easier to view hi-res photos - not to prevent you from viewing them. From their site: "Zoomify makes high-quality images zoom-and-pan for fast, interactive viewing on the web". This application was not designed to protect copyright work: a fact to which its creators, no doubt, will readily attest.

McKinnon ring a bell?

[Anonymous Coward]

UK resident.

Working on a UK machine.

Re:Music, Movies, Books,.. Museums next

[notseamus]

http://www.spanisharts.com/prado/prado.htm

http://www.google.com/intl/en/landing/prado/

El Prado, Spain's biggest museum offers high resolution reproductions of its collection through google earth, and probably elsewhere too. They're such high quality you can get down to brush strokes.

Although IMO, there's something about seeing the painting/art work in person that can't be replaced by viewing it on a monitor. Something is lost if you see it on screen, especially if the space that you visit it in is repurposed or designed for the piece in question. This especially applies to sculpture.

NPG = Free Entry

[RotateLeftByte]

The National Portrait Gallery in London (Where the original pictures reside) DOES NOT CHARGE for entrance. I have spent many a wet lunch hour wandering around the Gallery enjoying the artwork.

I sells high quality prints of the Artwork. This is a way of raising funds for the upkeep and towards the purchase of new work.
As an Amateur photographer who has had their work pirated by someone from the USA and realises the futility of trying to stop them from claiming it as their own, I'm with the NPG on this one. Btw, I would have given the pirate a high quality copy of the picture if they had asked for it and agreed that the copyright was mine. Instead, he stole it.

Re:NPG = Free Entry

[srealm]

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.

Re:UK Law is not unclear

[ray-auch]

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 ?

I received this reply when I complained about this

[haggisbrain]

Thank you for taking the time to contact the National Portrait Gallery. Please see below the Gallery's position statement: The National Portrait Gallery is very strongly committed to giving access to its Collection. In the past five years the Gallery has spent around £1 million digitising its Collection to make it widely available for study and enjoyment. We have so far made available on our website more than 60,000 digital images, which have attracted millions of users, and we believe this extensive programme is of great public benefit. The Gallery supports Wikipedia in its aim of making knowledge widely available and we would be happy for the site to use our low-resolution images, sufficient for most forms of public access, subject to safeguards. However, in March 2009 over 3000 high-resolution files were appropriated from the National Portrait Gallery website and published on Wikipedia without permission. The Gallery is very concerned that potential loss of licensing income from the high-resolution files threatens its ability to reinvest in its digitisation programme and so make further images available. It is one of the Gallery's primary purposes to make as much of the Collection available as possible for the public to view. Digitisation involves huge costs including research, cataloguing, conservation and highly-skilled photography. Images then need to be made available on the Gallery website as part of a structured and authoritative database. To date, Wikipedia has not responded to our requests to discuss the issue and so the National Portrait Gallery has been obliged to issue a lawyer's letter. The Gallery remains willing to enter into a dialogue with Wikipedia. This statement will be published on the National Portrait Gallery's website in due course. Once again, thank you for your feedback. I do hope that you will be able to visit the National Portrait Gallery both online (www.npg.org.uk - where visitors can freely view more than 60,000 low resolution digital images of works in the Collection) and in person in the near future. Yours sincerely, Helen

Try doing the same in the US

[benwiggy]

If US law is so clear (that copies of public domain works are themselves public domain), then can anyone explain to me why Getty Images charges me full whack for pictures of works of art from days gone by; and gives me chapter and verse about what I can do with the images?

Anyone care to try posting some images from Getty on Wiki....?

http://www.gettyimages.com/Corporate/LicenseInfo.aspx

Re:UK Law is not unclear

[thejynxed]

Obviously, you haven't been paying any attention to anything posted above you.

NPG isn't right as far as -US- law is concerned. They ARE right as far as -UK- law is concerned.

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).

There is no exception yet for photographic reproductions of Public Domain works under UK law, which is what this entire dispute is about: The conflict between the two laws, as it applies between NPG (UK) and Wikipedia (US).

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.

Low tech solution?

[ingsocsoc]

What I don't get is why people haven't started sneaking in cameras and taking the pictures themselves. The rentacops there can't make you delete the photos, and I'm sure that legally they can only ask you to leave. I think you could take lots of photos before they even noticed. After a while I'm sure we'd get all 3000 images!

Re:UK Law is not unclear

[shutdown -p now]

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 .