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...

[Peter Damian]

Although major newpapers like the Guardian are covering this story, there appears to be no mention of this in the Wikipedia article about the NPG

http://en.wikipedia.org/wiki/National_Port...allery_(London)

[edit] Perhaps someone could write a short section in the article about the theft, and then perhaps link to one of the stolen images. This would be quite good because in newspapers when a picture is stolen you normally see only a reproduction of the picture. But here you would be seeing the stolen image itself. And then could you claim a reward?

This post has been edited by Peter Damian:

[MBisanz]

Although major newpapers like the Guardian are covering this story, there appears to be no mention of this in the Wikipedia article about the NPG

http://en.wikipedia.org/wiki/National_Port...allery_(London)

I really hope we can restrain ourselves from promulgating the idea that a random intellectual property dispute with a website, that hasn't even reached a court of law, is worthy of mention in an article about a museum that opened in 1856.

[Peter Damian]

Although major newpapers like the Guardian are covering this story, there appears to be no mention of this in the Wikipedia article about the NPG

http://en.wikipedia.org/wiki/National_Port...allery_(London)

I really hope we can restrain ourselves from promulgating the idea that a random intellectual property dispute with a website, that hasn't even reached a court of law, is worthy of mention in an article about a museum that opened in 1856.

See my remarks above about the 'stolen pictures' idea. When Munch's Scream painting was stolen I think that was reported in Wikipedia. So why not the theft of an image - particularly when the stolen item can itself be shown on the encyclopedia.

Also, if you are going to use the argument that less recent and boring events like foundation in the 19th century is more important then you open a serious can of worms, like why should Britney Spears get more space than Wittgenstein, e.g.? When I point out things like this I get masses of abuse from those en-Wiki.

[edit] Yes I was right there is masses about when the Scream was stolen.

http://en.wikipedia.org/wiki/The_Scream#Thefts

Why not choose one of the more important stolen paintings and an article about it then have a section about when it was stolen? That would be very exciting and would provide endless opportunities for mischief (fortunately I don't go in for drama so someone else will have to volunteer).

This post has been edited by Peter Damian:

[MBisanz]

Although major newpapers like the Guardian are covering this story, there appears to be no mention of this in the Wikipedia article about the NPG

http://en.wikipedia.org/wiki/National_Port...allery_(London)

I really hope we can restrain ourselves from promulgating the idea that a random intellectual property dispute with a website, that hasn't even reached a court of law, is worthy of mention in an article about a museum that opened in 1856.

See my remarks above about the 'stolen pictures' idea. When Munch's Scream painting was stolen I think that was reported in Wikipedia. So why not the theft of an image - particularly when the stolen item can itself be shown on the encyclopedia.

Also, if you are going to use the argument that less recent and boring events like foundation in the 19th century is more important then you open a serious can of worms, like why should Britney Spears get more space than Wittgenstein, e.g.? When I point out things like this I get masses of abuse from those en-Wiki.

[edit] Yes I was right there is masses about when the Scream was stolen.

http://en.wikipedia.org/wiki/The_Scream#Thefts

Why not choose one of the more important stolen paintings and an article about it then have a section about when it was stolen? That would be very exciting and would provide endless opportunities for mischief (fortunately I don't go in for drama so someone else will have to volunteer).

I knew we had a rule on this: Wikipedia:SELFREF

When a notable person, especially a writer or media personality, mentions Wikipedia, there may be a temptation to add any such mention to their Wikipedia article. However, to avoid self reference, this needs to be balanced with its importance in their overall body of work. For example, a radio host mentioning on one show that he read his Wikipedia biography is not a very important event in his overall career. A rare exception to this is, for example, the article on John Seigenthaler, because the media attention surrounding his Wikipedia entry is now a notable event in his public life.

Not sure I agree with exactly how that is worded, but I imagine one lawsuit in the history of this gallery is hardly important to its overall body of work (which probably encompasses dozens of lawsuits, among other things, over the last 150 years).

[No one of consequence]

I wonder if anyone has actually read the Bridgeman decision. Since the works of art involved were held, in part, in UK museums, the Court looked at the situation under both US and UK law.

United Kingdom Law

[26] While the Court's conclusion as to the law governing copyrightability renders the point moot, the Court is persuaded that plaintiff's copyright claim would fail even if the governing law were that of the United Kingdom.

[27] Plaintiff's attack on the Court's previous conclusion that its color transparencies are not original and therefore not copyrightable under British law depends primarily on its claim that the Court failed to apply Graves' Case, a nisi prius decision and the supposedly controlling authority that plaintiff did not even cite in its opposition to defendant's motion for summary judgment.

[28] Graves' Case in relevant part involved an application to cancel entries on the no longer extant Register of Proprietors of Copyright in Paintings, Drawings and Photographs for three photographs of engravings.[43] In rejecting the contention that the photographs were not copyrightable because they were copies of the engravings, Justice Blackburn wrote:
"The distinction between an original painting and its copy is well understood, but it is difficult to say what can be meant by an original photograph. All photographs are copies of some object, such as a painting or statue. And it seems to me that a photograph taken from a picture is an original photograph, in so far that to copy it is an infringement of the statute."[44]

[29] Plaintiff and the amicus therefore argue that plaintiff's photographs of public domain paintings are copyrightable under British law. But they overlook the antiquity of Graves' Case and the subsequent development of the law of originality in the United Kingdom.

[30] Laddie, a modern British copyright treatise the author of which now is a distinguished British judge, discusses the issue at Bar in a helpful manner:
"It is obvious that although a man may get a copyright by taking a photograph of some well-known object like Westminster Abbey, he does not get a monopoly in representing Westminister Abbey as such, any more than an artist would who painted or drew that building. What, then, is the scope of photographic copyright? As always with artistic works, this depends on what makes his photograph original. Under the 1988 Act the author is the person who made the original contribution and it will be evident that this person need not be he who pressed the trigger, who might be a mere assistant. Originality presupposes the exercise of substantial independent skill, labour, judgment and so forth. For this reason it is submitted that a person who makes a photograph merely by placing a drawing or painting on the glass of a photocopying machine and pressing the button gets no copyright at all; but he might get a copyright if he employed skill and labour in assembling the thing to be photocopied, as where he made a montage. It will be evident that in photography there is room for originality in three respects. First, there may be originality which does not depend on creation of the scene or object to be photographed or anything remarkable about its capture, and which resides in such specialties as angle of shot, light and shade, exposure, effects achieved by means of filters, developing techniques etc: in such manner does one photograph of Westminster Abbey differ from another, at least potentially. Secondly, there may be creation of the scene or subject to be photographed. We have already mentioned photo-montage, but a more common instance would be arrangement or posing of a group ... Thirdly, a person may create a worthwhile photograph by being at the right place at the right time. Here his merit consists of capturing and recording a scene unlikely to recur, e.g. a battle between an elephant and a tiger ..."[45]

[31] Moreover, the authors go on to question the continued authority of Graves' Case under just this analysis:
"It is submitted that Graves' Case (1869) LR 4 QB 715 (photograph of an engraving), a case under the Fine Arts Copyright Act 1862, does not decide the contrary, since there may have been special skill or labour in setting up the equipment to get a good photograph, especially with the rather primitive materials available in those days. Although the judgments do not discuss this aspect it may have been self-evident to any contemporary so as not to require any discussion. If this is wrong it is submitted that Graves' Case is no longer good law and in that case is to be explained as a decision made before the subject of originality had been fully developed by the courts.[46]

[32] This analysis is quite pertinent in this case. Most photographs are "original" in one if not more of the three respects set out in the treatise and therefore are copyrightable. Plaintiff's problem here is that it seeks protection for the exception that proves the rule: photographs of existing two-dimensional articles (in this case works of art), each of which reproduces the article in the photographic medium as precisely as technology permits. Its transparencies stand in the same relation to the original works of art as a photocopy stands to a page of typescript, a doodle, or a Michelangelo drawing.[47]

[33] Plaintiff nevertheless argues that the photocopier analogy is inapt because taking a photograph requires greater skill than making a photocopy and because these transparencies involved a change in medium. But the argument is as unpersuasive under British as under U.S. law.

[34] The allegedly greater skill required to make an exact photographic, as opposed to Xerographic or comparable, copy is immaterial. As the Privy Council wrote in Interlego AG v. Tyco Industries, Inc.,[48] "skill, labor or judgment merely in the process of copying cannot confer originality ..."[49] The point is exactly the same as the unprotectibility under U.S. law of a "slavish copy."

[35] Nor is the change in medium, standing alone, significant. The treatise relied upon by plaintiff for the contrary proposition does not support it. It states that "a change of medium will often entitle a reproduction of an existing artistic work to independent protection."[50] And it goes on to explain:
"Again, an engraver is almost invariably a copyist, but his work may still be original in the sense that he has employed skill and judgment in its production. An engraver produces the resemblance he wishes by means which are very different from those employed by the painter or draughtsman from whom he copies; means which require a high degree of skill and labour. The engraver produces his effect by the management of light and shade, or, as the term of his art expresses it, the chiaroscuro. The required degree of light and shade are produced by different lines and dots; the engraver must decide on the choice of the different lines or dots for himself, and on his choice depends the success of his print."[51]

[36] Thus, the authors implicitly recognize that a change of medium alone is not sufficient to render the product original and copyrightable. Rather, a copy in a new medium is copyrightable only where, as often but not always is the case, the copier makes some identifiable original contribution. In the words of the Privy Council in Interlogo AG, "there must ... be some element of material alteration or embellishment which suffices to make the totality of the work an original work."[52] Indeed, plaintiff's expert effectively concedes the same point, noting that copyright "may" subsist in a photograph of a work of art because "change of medium is likely to amount to a material alteration from the original work, unless the change of medium is so insignificant as not to confer originality ..."[53]

[37] Here, as the Court noted in its earlier opinion, "it is uncontested that Bridgeman's images are substantially exact reproductions of public domain works, albeit in a different medium."[54] There has been no suggestion that they vary significantly from the underlying works. In consequence, the change of medium is immaterial.

[38] Finally, the amicus argues that this result is contraindicated because public art collections in the United Kingdom charge fees for reproductions of photographic images of works in their collections, thus evidencing their view that the images are protected by copyright. But the issue here is not the position of an economically interested constituency on an issue that has not been litigated, at least in this century, but the content of the originality requirement of the British Copyright Act. Moreover, it is far from clear what the understanding of British art collections, if any, actually is. Certainly, for example, there are original works of art in British public art collections in which copyright subsists and is owned by the collections, in which case reproduction rights no doubt are a fit subject for exploitation.[55]

[39] For all of the foregoing reasons, the Court is persuaded that its original conclusion that Bridgeman's transparencies are not copyrightable under British law was correct.

bold=my emphasis

Now, obviously an analysis of UK law by a US court is not binding on UK courts, but if the NPG ever finds a UK-based person to threaten, this certainly is a good road map for the defense.

The fundamental issue here is that the UK copyright law is up to date and quite sophisticated. They have thought through in detail what they are trying to protect and also that there are some things that are unfair or impractical to protect. In the UK, the work of the NPG is protected, regardless of what the position might be in another country.

As a UK citizen, I find it highly objectionable that some other country should ignore my country's legislation as if it is ignorant or incompetent. In this case it has a clear logic - which may not fit with legislation in another country, but it is consistent and as such should be respected.

Might want to re-think this argument...

This post has been edited by No one of consequence: