The National Portrait Gallery Threatens Litigation, Big Oops for WMF? Options

[John Limey]

See the letter issued by solicitors for the UK National Portrait Gallery. Looks like the WMF and User:Dcoetzee might be headed for some serious trouble.

Naturally some idiot of an admin came along to block the account used to send the email immediately per WP:NLT. Yea...

[Kato]

I heard a Wikipedia Weekly podcast a while back where they discussed a similar incident. The Wikipedio was threatened with legal action for copying photographs of non-copyrighted artwork, but the threat was toothless and merely designed to put people off. The podcast was naturally in favor of the Wikipedio (big free culture activists and all that) and they seemed to agree that the Gallery had no right to threaten to sue over photographs of non-copyrighted material. They seemed to know what they were talking about as well.

However, this section of this claim interests me:

There is a common misconception that, as a result of the decision in Bridgeman v. Corel, copyright can never subsist in a photograph of a painting. That conclusion is erroneous because:

1. the judgment in Bridgeman v. Corel is a decision of the US Courts and therefore, whilst it might amount to a precedent under US law, it has no effect under UK law; and

2. in the UK, whilst the precise circumstances that gave rise to the Bridgeman v. Corel litigation have never been the subject matter of a claim decided before the UK Courts, practicing lawyers and legal academics alike generally agree that under a UK law analysis the judgment in Bridgeman v. Corel is wrong and that copyright can subsist in a photograph of a painting.

For the avoidance of doubt, the allegation of copyright infringement made against you below is an allegation under UK law. Furthermore, we can confirm that every one of the images that you have copied is the product of a painstaking exercise on the part of the photographer that created the image in which significant time, skill, effort and artistry have been employed and that there can therefore be no doubt that under UK law all of those images are copyright works under s.1(1)(a) of the CDPA.

Whether the Wikipedios end up being in the clear or not legally, the bolded section (if true), says to me that National Portrait Gallery are morally entitled to press a case.

(update)

Naturally some idiot of an admin came along to block the account used to send the email immediately per WP:NLT. Yea...

I hadn't read that when I posted the above, and was going to post something similar as a joke, "I bet they block the National Portrait Gallery for making legal threats!" etc.

GeorgeWilliamHerbert, the blocking admin, has long been identified here as one of the stupidiest figures Wikipedia has produced. Everything he does is preposterously wrong, and I once advised that his posts should be accompanied by the Laurel and Hardy theme tune.

[TungstenCarbide]

I heard a Wikipedia Weekly podcast a while back where they discussed a similar incident. The Wikipedio was threatened with legal action for copying photographs of non-copyrighted artwork, but the threat was toothless and merely designed to put people off. The podcast was naturally in favor of the Wikipedio (big free culture activists and all that) and they seemed to agree that the Gallery had no right to threaten to sue over photographs of non-copyrighted material. They seemed to know what they were talking about as well.

However, this section of this claim interests me:

There is a common misconception that, as a result of the decision in Bridgeman v. Corel, copyright can never subsist in a photograph of a painting. That conclusion is erroneous because:

1. the judgment in Bridgeman v. Corel is a decision of the US Courts and therefore, whilst it might amount to a precedent under US law, it has no effect under UK law; and

2. in the UK, whilst the precise circumstances that gave rise to the Bridgeman v. Corel litigation have never been the subject matter of a claim decided before the UK Courts, practicing lawyers and legal academics alike generally agree that under a UK law analysis the judgment in Bridgeman v. Corel is wrong and that copyright can subsist in a photograph of a painting.

For the avoidance of doubt, the allegation of copyright infringement made against you below is an allegation under UK law. Furthermore, we can confirm that every one of the images that you have copied is the product of a painstaking exercise on the part of the photographer that created the image in which significant time, skill, effort and artistry have been employed and that there can therefore be no doubt that under UK law all of those images are copyright works under s.1(1)(a) of the CDPA.

Whether the Wikipedios end up being in the clear or not legally, the bolded section (if true), says to me that National Portrait Gallery are morally entitled to press a case.

Nah, no moral justification. They might be legally entitled to bring a test case, but under no stretch of the imagination are they morally entitled. The copyrights on those paintings are expired. Nobody looks at them to admire the photographer's skill, and there is no moral justification for making money off the work of some guy who died 300 years ago. The skillful photographer copier angle is a weak technicality that doesn't follow the spirit of copyright law.

[GlassBeadGame]

Nah, no moral justification. They might be legally entitled to bring a test case, but under no stretch of the imagination are they morally entitled. The copyrights on those paintings are expired. Nobody looks at them to admire the photographer's skill, and there is no moral justification for making money off the work of some guy who died 300 years ago. The skillful photographer copier angle is a weak technicality that doesn't follow the spirit of copyright law.

I'm no expert on copyright but I quite certain the act of creation they are concerned with is the photograph of the painting, not the painting itself. The case cited would appear to make this not protected under US copyright law. But their point is "this is London calling..."

[TungstenCarbide]

Nah, no moral justification. They might be legally entitled to bring a test case, but under no stretch of the imagination are they morally entitled. The copyrights on those paintings are expired. Nobody looks at them to admire the photographer's skill, and there is no moral justification for making money off the work of some guy who died 300 years ago. The skillful photographer copier angle is a weak technicality that doesn't follow the spirit of copyright law.

I'm no expert on copyright but I quite certain the act of creation they are concerned with is the photograph of the painting, not the painting itself. The case cited would appear to make this not protected under US copyright law. But their point is "this is London calling..."

I agree, legally speaking.

But the Gallery is trying to use the 'photographers skill' to gain the value of the artist's original work. Maybe that's doable in UK law, i don't know, but I think it's morally wrong. Nobody's interested in the photographer's skill, they are interested in the artists painting. If it was a crappy photo it'd still be used if nothing else was available.

This post has been edited by TungstenCarbide:

[Kato]

I agree, legally speaking.

But think about it - if the only photo available was crappy it'd still be used in the Wikipedia article. Nobody's interested in the photographer's skill, there are interested in the artists painting. Yet the Gallery is trying to use the 'photographers skill' to gain the value of the artist's original work. Maybe that's doable in UK law, i don't know, but I think it's morally wrong.

You seem to be pouring doubt and scorn on the claim that it takes skill to photograph certain artworks for a high quality collections. What do you think professional photographers who make their living on this do when they arrive at a gallery? Take a few polaroid snaps in 20 minutes then go for a cigarette?

It takes time and money to produce quality reproductions of artworks.

[Peter Damian]

You seem to be pouring doubt and scorn on the claim that it takes skill to photograph certain artworks for a high quality collections. What do you think professional photographers who make their living on this do when they arrive at a gallery? Take a few polaroid snaps in 20 minutes then go for a cigarette?

It takes time and money to produce quality reproductions of artworks.

I work with digital versions of manuscripts and there is no doubt that a professionally produced photograph is superior in many ways to non-professionally produced versions. It takes expensive equipment to get the lighting correct (otherwise you get all sorts of shadows and effects that shouldn't be there), and to get the angle correct and so on. I sometimes produce my own versions but they are far inferior.

We should perhaps have a separate thread on another moral issue of Wikipedia: that it removes work from honest people. The true cost of reproductions, of writing encyclopedias and so on is fairly high because people who do this for an actual living have to live.

[TungstenCarbide]

You seem to be pouring doubt and scorn on the claim that it takes skill to photograph certain artworks for a high quality collections. What do you think professional photographers who make their living on this do when they arrive at a gallery? Take a few polaroid snaps in 20 minutes then go for a cigarette?

It takes time and money to produce quality reproductions of artworks.

I work with digital versions of manuscripts and there is no doubt that a professionally produced photograph is superior in many ways to non-professionally produced versions. It takes expensive equipment to get the lighting correct (otherwise you get all sorts of shadows and effects that shouldn't be there), and to get the angle correct and so on. I sometimes produce my own versions but they are far inferior.

We should perhaps have a separate thread on another moral issue of Wikipedia: that it removes work from honest people. The true cost of reproductions, of writing encyclopedias and so on is fairly high because people who do this for an actual living have to live.

It also takes skill and expensive equipment to machine a fine bearing race. That doesn't mean the machinist owns a copyright on it. Why should it be so for a photograph of a masterpiece? 'Creativity' is inherent in copyright law.

Where the hell is NYB when we need him.

This post has been edited by TungstenCarbide:

[Push the button]

Why should it be so for a photograph of a masterpiece? 'Creativity' is inherent in copyright law.

It isn't so for a photograph of a masterpiece, as clearly such a photograph would fall at the very first hurdle (which the attorneys' letter actually cites) of the relevant legislation, which states that copyright subsists in original artistic works.

There's no originality in a photographic reproduction of a painting, particularly one in which (as they themselves take pains to stress) so much time and effort has been invested in ensuring that it is as faithful and painstakingly accurate a reproduction as possible. In doing so, all that time and effort has had the opposite effect - to ensure that there is no creativity or originality in the resultant photograph - and consequently that no copyright subsists.

Flowing from that, all the claims made by the attorneys would appear to fall away (as they're all predicated around copyright existing in the photographs) bar the talk of database rights, where they appear to have a point. I can't see what their loss would be if database rights existed, though.

IANAL, though, so may well be wrong.

This post has been edited by Push the button:

[standixon]

If I take a photograph, don't I own the copyright to my own work. Isn't that why the Wiki 'allows' the uploading of images that are the uploader's own work?

If a photographer takes a picture for a newspaper doesn't the copyright belong to him and then transfer to the paper? Isn't that the basis of the newspaper's payment to him?

Have I imagined the fuss made on Wiki about images that don't have the required 'permissions' to be hosted?

In my home town the art gallery prohibits photography.

If I take a photograph of an artist's work, without permission of the artist or the copyright holder, and produce prints, posters etc. surely I would be a criminal?

Isn't the issue here quite plain: the uploader took somebody else's work, the photos, and placed them on Wiki.

Of course the stolen photos were also placed in an online gallery on a website for public viewing. That means that they were part of a copyrighted, original, work.

Plagiarism, Theft and against Wikipedia policy.

Morally indefensible. But this is Wikipedia and some of the members here seem to be parroting the Wikipediot line. (IMG:smilys0b23ax56/default/yak.gif)

The rational , moral and legally correct thing to do would have been to include links to the website and photo gallery.


This post has been edited by standixon: