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...

[GlassBeadGame]

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...

The letter is reproduced here to enable public discourse on the issue.

He doesn't need public discourse. He needs a lawyer.

Good spot Limey. Welcome to WR.

[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.

[John Limey]

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.

I am not a lawyer (though I almost went to law school and by Wikipedia standards that makes me essentially the Chief Justice of the Supreme Court...), but I tend to think that the rationale presented in the letter is sound; Bridgeman v. Corel indeed has no effect on the laws of the United Kingdom.

The letter of course presents a clear indication of a desire to settle the case without monetary damages (I think the user involved should just take the out and let some one else reupload the photos and let hell rain down on him or herself), which is often an indication of a less than rock-solid case. I get the impression though, that the Portrait Gallery really just wants the photos taken down and doesn't want to spend the time and money on a drawn out court case.

Hopefully, the user involved just deletes all the stuff as he is an admin (but what do you bet he gets desysopped as a result?) or Mike Godwin realizes that the WMF shouldn't ignore situations like this and does something.

[Kato]

Hopefully, the user involved just deletes all the stuff as he is an admin (but what do you bet he gets desysopped as a result?) or Mike Godwin realizes that the WMF shouldn't ignore situations like this and does something.

If this gathers pace, I guarantee the Free Culture crowd will try to fight it on political grounds. Those guys on Wikipedia Weekly ('Witty lama' in particular (?)) seemed to see this kind of thing as at the frontline of their intellectual battle against The World.

[EricBarbour]

Hopefully, the user involved just deletes all the stuff as he is an admin (but what do you bet he gets desysopped as a result?) or Mike Godwin realizes that the WMF shouldn't ignore situations like this and does something.

And sadly, no one will do anything to notorious prick Georgewilliamherbert--
the very prick who blocked that law firm account.....how dare they make a
threat? Ooohhh!!

When is GWH going to get his own subforum? He's earned one, twenty times over.

[GlassBeadGame]

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.

The National Portrait Gallery is a substantial institution with strong equities and much motivation to press this issue. The correspondence seems to me well reasoned, thought out and very detailed. In itself, and taking into account the underlying work and investigation it represents, it already amounts to substantial commitment of legal resources. It is the kind of letter that indicates that the aggrieved party has his ducks in row and could work up pleading in short order. Next comes a round of discovery to WMF and ISP etc needed to name and serve the pseudonym (presumably WMF would also be named.) This does not seem to me to be an idle threat.

It might be worth the fight to WMF, represented by EFF or the like, and is certainly worth while for NPG. I doubt that the pseudonym will feel so glad about the experience by the time it's over.

[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.

[JohnA]

Its just plagiarism, pure and simple. I bet those lawyers just cut and pasted from another legal complaint and thought we wouldn't notice.

[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..."

[John Limey]

FWIW. This is being discussed on Commons here: http://commons.wikimedia.org/wiki/Village_...ortrait_Gallery

[Sarcasticidealist]

I'm no expert on copyright but I quit certain the act of creation they are concerned with is the photograph of the painting, not the painting itself.

As I understand it from having skimmed it in great detail, it's also the database that they're claiming is copyrighted.

The case cited would appear to make this not protected under US copyright law.

I thought they were acknowledging that it was protected under US copyright, but that because the database was hosted in the UK and because the images are being directed to UK viewers, he was liable under UK law.

Please do take special note of my signature in this post.

[A Horse With No Name]

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.

This is the single funniest post I have read on WR. (IMG:smilys0b23ax56/default/laugh.gif)

[Jon Awbrey]

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.

This is the single funniest post I have read on WR. (IMG:smilys0b23ax56/default/laugh.gif)

He once, very briefly, had a Wikipedia Bio.

See the WR scraping of it here.

Jon (IMG:smilys0b23ax56/default/tongue.gif)

[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:

[dtobias]

Legally, the gallery might be right, at least in the U.K. (though not in the U.S., where the servers and apparently the individual Wikipedian are). Morally, however, I have to side with the "free culture" crowd and oppose efforts by institutions to gain proprietary rights over things whose copyrights are nonexistent or long expired, simply based on their possession of the physical objects and their limiting the ability of outsiders to make photographs or copies of them.

----------------
Now playing: Nikka Costa - Push And Pull
via FoxyTunes

[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.

[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..."

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.

They are a gallery. Any panting contained in their database are either in their collection, which means they curate, maintain and exhibit as well as control access to photographs or they are photos that they went the trouble to gain access and permission to photograph. All of this represent significant effort. Many galleries are non-profits that need the revenues from controlling the access to photograph their collection. "Free culture" is at odds with these institutions with historic ties to their communities and have long provided wide public access to real culture.

[EricBarbour]

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

Neither of which are available in the vacuum-packed Wikiworld.

Instead, they have shit like this and this.
And don't forget the goat piss.

Plus, go and ask David Cameron what he thinks.....
(IMG:http://i583.photobucket.com/albums/ss273/metasonix/Davidcameron.jpg)

(crap, having trouble finding threads about bad home-made art being used to illustrate articles.
Happens all the time.)

This post has been edited by EricBarbour:

[Kato]

(crap, having trouble finding threads about bad home-made art being used to illustrate articles.
Happens all the time.)

Susan Boyle (T-H-L-K-D)

[Jon Awbrey]

Legally, the gallery might be right, at least in the U.K. (though not in the U.S., where the servers and apparently the individual Wikipedian are). Morally, however, I have to side with the "free culture" crowd and oppose efforts by institutions to gain proprietary rights over things whose copyrights are nonexistent or long expired, simply based on their possession of the physical objects and their limiting the ability of outsiders to make photographs or copies of them.

FreeKulture is so 2001 —

All the ↑2d8 Libertaters have moved on to the —

Free Legal Advice By Amateur Lawyers Movement
FLABALM

[TungstenCarbide]

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.

Oh, I agree. But nevertheless, they are trying to use the 'skillful photographer's' argument to gain the value of the artists' original work. It's like saying ... copyrights expire, except for really good copies, in which case the legal heirs of the artwork are cut out and the value of the art is goes to whoever created the really good copy. For a straight-up copy this isn't morally right.

This post has been edited by TungstenCarbide:

[sbrown]

Theres the point that aparently theyd gone to the trouble of preventing people downloading the images and hed found a way round the protection.

Incidentally the solicitors Farrers are very well known and have often represented the Royal Family.

[thekohser]

All the ↑2d8 Libertaters have moved on to the —

Free Legal Advice By Amateur Lawyers Movement
FLABALM

Not to be confused with:

Flauxbam ! ! !

[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:

[Kato]

Where the hell is NYB when we need him.

NYB is useless in this situation because he is on the other side of the world in a completely different legal system. We're talking about UK Copyright, Designs and Patents Act here.

I suspect that the letter from the NPG's lawyers is a speculative threat, and they don't really have a case. However, such cases are unpredictable in the UK, and the fact that the Wikipedio knowingly circumvented the NPG's onsite restrictions will not be well received by any judge.

Given that the National Portrait Gallery is a publicly owned institution that allows free access to visitors, my default position is to support them against the erratic behaviour of unaccountable foreigners with political agendas I don't agree with.

[Push the button]

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.

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

If you create an original artistic work in photographic form, yes, you own the copyright to that work and can exploit it, and prevent its exploitation, pretty much however you wish. That right will survive for a period of time - your life plus X years, I guess, depending on what and where.

Uploading it to Wikipedia is one form of exploitation - granting a licence to Wikipedia to use it under the terms of the GDFwotsit. Selling it to your local paper is another (the transfer of the actual copyright to them may or may not be part of the deal - you could simply grant them a licence to use it once, or you could assign the ownership of the copyright to them in whole - depends what you agree and how they go about doing business).

The fuss on Wikipedia about images that don't have the required permissions is aimed at ensuring that those rights are respected - where the copyright owner doesn't give permission for the image to be used, then it can't be used, except under a limited set of circumstances.

Your local art gallery preventing photography could be for a number of reasons - where copyright still subsists in the work (so depending on the age of the art concerned) then it's a method of preventing copyright infringement - if you can't take a photo of the artwork, then you can't readily print your own copy of it. If copyright doesn't still subsist, then it's about the only method of keeping some form of control over the reproduction of the images - so a backdoor method of protection, in essence. If you take a photo of a work covered by copyright and try and exploit it yourself then no, you're not automatically a criminal. Copyright infringement is primarily a civil wrong, although depending on how you the go about exploiting it you may also be committing a crime.

Plagiarism? Erm, no, because there's no attempt by one person to pass the artwork or the photograph off as their own original work. Theft? No, because there's no intention to permanently deprive the National Gallery of the ownership of the physical paintings or the original copy of the photograph thereof. Against Wikipedia policy? Meh.

As for including links to the website and the gallery - well, that was done.

This post has been edited by Push the button:

[dogbiscuit]

Legally, the gallery might be right, at least in the U.K. (though not in the U.S., where the servers and apparently the individual Wikipedian are). Morally, however, I have to side with the "free culture" crowd and oppose efforts by institutions to gain proprietary rights over things whose copyrights are nonexistent or long expired, simply based on their possession of the physical objects and their limiting the ability of outsiders to make photographs or copies of them.

Typical freedophile nonsense. The National Portrait Gallery has gone to some effort to provide professionally produced using public money to provide a public service. Freedophiles seem to have determined that they are beyond the law. There is a tradition that you can campaign beyond the law and take actions, but that then you have to accept the risk that you will be punished.

In the UK, institutions like the National Portrait Gallery were expressly set up to preserve art (which is not really about copyright, it is about preserving, restoring, researching and displaying the works) and aside from an ignominious period in the Thatcher years, have been built on free access. The freedophile ignores this. So this quick snap that they perceive as having no value is built on thousands of pounds of effort.

The NPG has taken considerable effort to make available - for free - it's collection on the web. You can see the real things for free. However, th freedophiles only see one element, without grasping that there is more to art than being able to nick it. If it were established that it was perfectly acceptable and legitimate for users of a service to determine their own terms and conditions of use, then places like the NPG simply would not bother. Of course, the likes of Google might step in and do the work, so instead of having many institutions in the world providing a service, you end up with less free information as you end up selling your souls to Google as a result of your naive and blinkered views.

I am amazed that the WMF has not blocked and banned any user who has deliberately stolen copyrighted works.

With regards to the NPG, it seems that they are taking a route which is not about strength of legal cases, but about a moral argument - they are happy to work with the WMF, and happy that in some form that the images can be used, just don't leach off their premium service. If you understood the NPG, they are more than willing to ensure that their pictures are widely available through loans, for academic research, any other reputable institution can get hold of them.

I have yet to understand what the freedophile thinks will happen in their nirvana where everything is provided for free at no cost to the consumer. Like Americans who seem to think that a national infrastructure should be built without taxes then wonder why their bridges collapse, there is a basic failure to realise at some point someone has to do serious work and have a reasonable right to be recompensed. At some point the parents' money or benefits runs out and leaching off other people kills the golden goose.

[Peter Damian]

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.

No but the company that employs that person owns the copyright.

On the supposedly complex legal situation, the letter supposedly from Farrers refers to the Copyright, Designs and Patents Act 1988

http://www.england-legislation.hmso.gov.uk...880048_en_2#pt1

which says

Copyright is a property right which subsists in accordance with this Part in the following descriptions of work—
(a) original literary, dramatic, musical or artistic works,
[...]
where "artistic work” means—
(a) a graphic work, photograph, sculpture or collage, irrespective of artistic quality,"

This post has been edited by Peter Damian:

[Kato]

In the UK, institutions like the National Portrait Gallery were expressly set up to preserve art (which is not really about copyright, it is about preserving, restoring, researching and displaying the works) and aside from an ignominious period in the Thatcher years, have been built on free access. The freedophile ignores this. So this quick snap that they perceive as having no value is built on thousands of pounds of effort.

I think that's the important issue. The fight for Free Culture was a battle fought decades ago to give everyone Open Access to important works of art to all visitors via public ownership.

We paid for it and we continue to pay to maintain this.

By challenging the NPG on the basis of "Free information", people are actually undermining our hard fought rights to offer Free Access. As history tells us, efforts to undermine public institutions inevitably results in services falling into private hands. Where nothing is Free.

American software developers like Dcoetzee may be well meaning when they do things like this in the name of "Free Culture", but they are poorly equipped to see the broader picture. Especially when it refers to cultural battles in a whole different continent and culture.

On the supposedly complex legal situation, the letter supposedly from Farrers refers to the Copyright, Designs and Patents Act 1988

I'm now pretty sure they're bluffing on this, and it won't stand up in court. Whether morally justified or not, the Wikipedios would likely win. Of course this means that the capacity to produce high quality reproductions of collections will be hampered and the NPG will suffer - but what does that matter to some computer nut in Berkeley?

[Push the button]

On the supposedly complex legal situation, the letter supposedly from Farrers refers to the Copyright, Designs and Patents Act 1988

http://www.england-legislation.hmso.gov.uk...880048_en_2#pt1

which says

Copyright is a property right which subsists in accordance with this Part in the following descriptions of work—
(a) original literary, dramatic, musical or artistic works,
[...]
where "artistic work” means—
(a) a graphic work, photograph, sculpture or collage, irrespective of artistic quality,"

As I said earlier, with a little added emphasis this time around :

...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...

Where's the originality in a photograph which merely reproduces an existing work? There is none, irrespective of how much work went in to taking the photograph (and talk about the "sweat of one's brow" means sweat brought on by the creative process, not the technical work in setting up the lighting, camera and other equipment necessary to take a faithfully reproductive photograph of a painting, which doesn't involve any actual creativity (ie. nothing artistic is created thereby) whatsoever.

Since copyright requires originality of creation, there cannot be any copyright inherent in a photograph of a piece of art on which the underlying copyright has long since expired. The museums know this - that's why they ban cameras and yet have a conveniently placed shop by the exit where you can pick up life size posters of your favourite works.

Unfortunately for the NPG, by spending all that time and money in digitising faithful reproductions of those artworks they have, in effect, taken down all their "no camera" signs. Yes, they may have made things difficult through imposing technical restrictions, but since the restriction on circumventing technical restrictions only exists to prevent infringement of copyrighted works, if there's no originality, there's no copyright, so there's no unlawful circumvention of technical measures.

[No one of consequence]

The National Portrait Gallery is a substantial institution with strong equities and much motivation to press this issue. The correspondence seems to me well reasoned, thought out and very detailed. In itself, and taking into account the underlying work and investigation it represents, it already amounts to substantial commitment of legal resources. It is the kind of letter that indicates that the aggrieved party has his ducks in row and could work up pleading in short order. Next comes a round of discovery to WMF and ISP etc needed to name and serve the pseudonym (presumably WMF would also be named.) This does not seem to me to be an idle threat.

It might be worth the fight to WMF, represented by EFF or the like, and is certainly worth while for NPG. I doubt that the pseudonym will feel so glad about the experience by the time it's over.

But the WMF is in the US. Is there such a thing as international civil courts? (I don't think so.) Unless the threatened editor lives in the UK, both he and the WMF would seem to be beyond the NPG's reach.

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.

That's what Bridgeman is about in the US. The circumstances of Bridgeman have never been litigated in the UK. It is interesting that the letter cites the supposed creative input and skill by the photographer (to exactly reproduce a work of art?) as a way to pre-empt a Bridgeman-like article.

It would be lovely if this were litigated in the UK and for the NPG to lose just like Bridgeman did. Copyright protects artistic expression for a limited period of time in order to encourage and monetize such expressions. Copyright was never meant to be permanent.

Legally, the gallery might be right, at least in the U.K. (though not in the U.S., where the servers and apparently the individual Wikipedian are). Morally, however, I have to side with the "free culture" crowd and oppose efforts by institutions to gain proprietary rights over things whose copyrights are nonexistent or long expired, simply based on their possession of the physical objects and their limiting the ability of outsiders to make photographs or copies of them.

Hear, hear!

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.

No but the company that employs that person owns the copyright.

On the supposedly complex legal situation, the letter supposedly from Farrers refers to the Copyright, Designs and Patents Act 1988

http://www.england-legislation.hmso.gov.uk...880048_en_2#pt1

which says

Copyright is a property right which subsists in accordance with this Part in the following descriptions of work—
(a) original literary, dramatic, musical or artistic works,
[...]
where "artistic work” means—
(a) a graphic work, photograph, sculpture or collage, irrespective of artistic quality,"

But is a photographic reproduction of a painting "original"? This is the basis for Bridgeman v Corel in the US, and the museum lost. There is no question that in the US, such photographs, no matter how skillfully taken, are not protected. A similar case has not been litigated in the UK, as the letter points out, so the museum is in fact taking some risk here as well.

[Kato]

But the WMF is in the US. Is there such a thing as international civil courts? (I don't think so.) Unless the threatened editor lives in the UK, both he and the WMF would seem to be beyond the NPG's reach.

It would be lovely if this were litigated in the UK and for the NPG to lose just like Bridgeman did.

This is one of my biggest gripes with Wikipedia. What you are advocating is cultural bullying of a publicly owned institution in another country, and then you rush behind the skirts of Uncle Sam when they try to fight back.

We've said this many times before, but make no mistake, at the core of Wikipedia lies a radical and essentially right wing agenda to undermine public ownership, which ultimately places knowledge and culture in the hands of private interests. In this case, it isn't even your public ownership.

Hands Off.

[Push the button]

...a radical and essentially right wing agenda to undermine public ownership...

Sorry, but public ownership of what, in this instance?

[Kato]

Here's the National Portrait Gallery's statement from their website:

http://www.npg.org.uk/about/creators/copyright.php

Copyright and the National Portrait Gallery
The Gallery has a public duty not only to conserve and display works in its Collection but also to ensure they are correctly represented in reproductions and publications.

As a result of continuing research, from time to time adjustments are made in the attributions of artists and sitters, and these amendments are reflected in Gallery publications such as this website. Likewise, we ensure pictures are represented in their most recent state of restoration.

There are sometimes sensitive issues involving artists, sitters, donors or lenders of Collection works, to which we must be responsive. Accordingly, we tightly control the circumstances and quality of reproductions from the Collection.

The Gallery's image licensing department issues images for reproduction purposes. We also exert strict controls on all photography in the Gallery, which is allowed only on the understanding that copyright rests with us and that any further reproduction deriving from resulting photographic materials is subject to our written permission.

The Gallery is a strong supporter of free entry - we don't think visitors should have to pay to see the Collection. Those who may never be able to visit us can enjoy and learn about the Collection through images published in books and magazines, and on television and the internet.
The Gallery's image licensing department raises money by licensing reproductions, thus supporting both the free entry policy and the Gallery's main functions caring for its Collection and engaging people with its works.

...a radical and essentially right wing agenda to undermine public ownership...

Sorry, but public ownership of what, in this instance?

The National Portrait Gallery is publicly owned. It's owned by me.

[No one of consequence]

But the WMF is in the US. Is there such a thing as international civil courts? (I don't think so.) Unless the threatened editor lives in the UK, both he and the WMF would seem to be beyond the NPG's reach.

This is one of my biggest gripes with Wikipedia. What you are advocating is cultural bullying of a publicly owned institution in another country, and then you rush behind the skirts of Uncle Sam when they try to fight back.

We've said this many times before, but make no mistake, at the core of Wikipedia lies a radical and essentially right wing agenda to undermine public ownership which ultimately ends up placing knowledge and culture in the hands of private interests.

Why is this not a case instead of a publicly owned institution trying to bully a private citizen to protect an illegitimately-claimed financial interest in a piece of public property?

Here you have the NPG, supported by UK taxpayers, trying to make money selling reproductions of property that they do not own intellectual property rights to, by virtue of their possession of the original. Isn't The Death of Lord Nelson a British National Treasure? But it should only be available to people who can afford to buy prints?

[taiwopanfob]

Where's the originality in a photograph which merely reproduces an existing work? There is none, irrespective of how much work went in to taking the photograph (and talk about the "sweat of one's brow" means sweat brought on by the creative process, not the technical work in setting up the lighting, camera and other equipment necessary to take a faithfully reproductive photograph of a painting, which doesn't involve any actual creativity (ie. nothing artistic is created thereby) whatsoever.

There are serious technical and creative issues at play when any photograph is taken. Good pictures are hard to get, and this is true regardless of what you or even the Supreme Court may believe.

For example, try a flower. Say, a tulip. According to the stellar reasoning from your end, copyright on any photograph of a tulip can not exist, since the photographer did not "create" or "originate" the tulip. Even planting the thing isn't enough, since any idiot -- even a Wikipediot -- can dig a hole in the ground, drop in a bulb, and wait a few months.

[No one of consequence]

Copyright and the National Portrait Gallery

The Gallery is a strong supporter of free entry - we don't think visitors should have to pay to see the Collection. Those who may never be able to visit us can enjoy and learn about the Collection through images published in books and magazines, and on television and the internet.

Good on them, but...

The Gallery's image licensing department raises money by licensing reproductions, thus supporting both the free entry policy and the Gallery's main functions caring for its Collection and engaging people with its works.

So, if I am affluent enough to own a computer and an internet connection, I can view these great works for "free." But if I want a copy to hang on the wall of my office, I have to pay, even though the original is undisputedly in the public domain.

Here's a thought experiment...suppose the copyright claim on the photo reproductions holds up in the UK courts. Can the NPG extend their copyright claim indefinitely by arranging to have photographs of the photographs taken every 69 years? If not, then why does copyright protect the first generation photo? If so, how does this comport with the fundamental purpose of copyright, which is to encourage artistic expression for the benefit of all mankind by granting a temporary exclusive right to exploit. And do you think that people who stage Oscar Wilde or G&S or Shakespeare plays should be paying royalties to the heirs?

[Kato]

Isn't The Death of Lord Nelson a British National Treasure?

That's why we bought it. That's why it is in the hands of one of our publicly owned institutions. So we can view it for free whenever we like. And thanks to our commitment to public ownership of artworks, we can protect the work from entering private hands.

But you want us to lose a court case which will damage our capacity to protect the very British National Treasures you proclaim.

[Push the button]

The Gallery's image licensing department raises money by licensing reproductions.

Given that the NPG doesn't solely own historic portraits, it will doubtless own a large number in which copyright still subsists and (presumably) vests with the NPG - it can therefore license those as it sees fit to raise money.

That's not the point, though. The point is that copyright in the original artworks of which copies have been uploaded to Wikipedia has expired. That they've taken and published photographs of those artworks doesn't create a backdoor to the life+70 years copyright timespan.

If they're raising revenue through licensing of images on which copyright has expired, then (a) clever them, and shame on the people who are paying those license fees, and (b) that's a byproduct of their ability to make it exceedingly difficult for people to access the originals themselves to make and exploit their own copies.

This post has been edited by Push the button:

[No one of consequence]

Where's the originality in a photograph which merely reproduces an existing work? There is none, irrespective of how much work went in to taking the photograph (and talk about the "sweat of one's brow" means sweat brought on by the creative process, not the technical work in setting up the lighting, camera and other equipment necessary to take a faithfully reproductive photograph of a painting, which doesn't involve any actual creativity (ie. nothing artistic is created thereby) whatsoever.

There are serious technical and creative issues at play when any photograph is taken. Good pictures are hard to get, and this is true regardless of what you or even the Supreme Court may believe.

For example, try a flower. Say, a tulip. According to the stellar reasoning from your end, copyright on any photograph of a tulip can not exist, since the photographer did not "create" or "originate" the tulip. Even planting the thing isn't enough, since any idiot -- even a Wikipediot -- can dig a hole in the ground, drop in a bulb, and wait a few months.

No, please see Bridgeman Art Library v. Corel Corp., which is the law of the land in the US. A photograph of a tulip sunflower involves many creative decisions (about light, composition, selection of the subject, angle, time, filters, etc.) An exact photographic reproduction of Vase with 12 Sunflowers by Van Gogh may require great technical skill, but not creative expression.

A case like Bridgeman has not yet been litigated in the UK. The NPG is taking on some risk if they pursue their claim in court.

[Kato]

And do you think that people who stage Oscar Wilde or G&S or Shakespeare plays should be paying royalties to the heirs?

Try uploading Kenneth Branagh's Hamlet to Wikipedia and see how far you get? Maybe that should be free as well?

[Push the button]

And do you think that people who stage Oscar Wilde or G&S or Shakespeare plays should be paying royalties to the heirs?

Try uploading Kenneth Branagh's Hamlet to Wikipedia and see how far you get? Maybe that should be free as well?

Not very, because a different set of copyrights exist.

The copyright in the underlying words, the script (assuming it was accurate to the original) has long since expired, which is why, if I want, I could publish a copy of it without having to pay royalties to Shakespeare's heirs.

The copyright in the film, however, is very much alive and well, and depending on who is deemed to be the creator of the film (the director, I guess?) will continue until 70 years after they have died.

[GlassBeadGame]

But the WMF is in the US. Is there such a thing as international civil courts? (I don't think so.) Unless the threatened editor lives in the UK, both he and the WMF would seem to be beyond the NPG's reach.

This is one of my biggest gripes with Wikipedia. What you are advocating is cultural bullying of a publicly owned institution in another country, and then you rush behind the skirts of Uncle Sam when they try to fight back.

We've said this many times before, but make no mistake, at the core of Wikipedia lies a radical and essentially right wing agenda to undermine public ownership which ultimately ends up placing knowledge and culture in the hands of private interests.

Why is this not a case instead of a publicly owned institution trying to bully a private citizen to protect an illegitimately-claimed financial interest in a piece of public property?

Here you have the NPG, supported by UK taxpayers, trying to make money selling reproductions of property that they do not own intellectual property rights to, by virtue of their possession of the original. Isn't The Death of Lord Nelson a British National Treasure? But it should only be available to people who can afford to buy prints?

Maybe because you don't get to unilaterally write the narrative? As outlined above there are strong equities on the side of NPG and other museums and galleries. Ultimately this issue is existential for galleries. They have strong allies in the in the press and civic community for the very reason that they have long provided community access to the arts and culture. They have to fight this fight or they will be next victim among free institutions to fall to "free culture," right in line after newspapers.

[Peter Damian]

No, please see Bridgeman Art Library v. Corel Corp., which is the law of the land in the US.

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.

[No one of consequence]

And do you think that people who stage Oscar Wilde or G&S or Shakespeare plays should be paying royalties to the heirs?

Try uploading Kenneth Branagh's Hamlet to Wikipedia and see how far you get? Maybe that should be free as well.

Neither of us is stupid, this strawman argument does not serve you well.

I am not advocating for free copying of works that are still within their original copyright period.

And, by the way, if Hamlet was treated the same was as the NPG wants to treat its 400 year old paintings, Shakespeare's heirs could have extracted a huge license fee from Branagh, or even refused him permission to make his version. Is that where you want to go?

[taiwopanfob]

But it should only be available to people who can afford to buy prints?

Maybe I should present myself to Disney World, and demand free entrance. How can they possibly sleep at night, knowing they are denying the pinnacle of western culture to millions of children and adults? On the basis of pure economic discrimination?

I'm also getting a bit pissed off at the local swimming pool. All those signs about having to shower before entry, restrictions on what I can wear in the pool, what I can do in or around the water. Who the hell do these people think they are?

Basically, Kato is dead right here. Proprietary interests are why things are as good as they are around here, and the Free Kulture people are not thinking on a long enough timeline.

[Peter Damian]

'Wanker' Gerard chimes in

http://davidgerard.co.uk/notes/

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.

[tl;dr]

This post has been edited by Peter Damian:

[dtobias]

Interesting how to oppose a "right-wing corporate agenda" you're backing expansionist interpretations of copyright law based on preventing anything from ever falling into the public domain, which in turn is precisely the stance taken by big corporations that want to control things in a proprietary way (e.g., Disney, Time-Warner).

[taiwopanfob]

No, please see Bridgeman Art Library v. Corel Corp., which is the law of the land in the US. A photograph of a tulip sunflower involves many creative decisions (about light, composition, selection of the subject, angle, time, filters, etc.) An exact photographic reproduction of Vase with 12 Sunflowers by Van Gogh may require great technical skill, but not creative expression.

I guess I have to tell you again: any photograph is an exercise in technical and creative tradeoffs.

This is true regardless of what you or even the Supreme Court of the Universe may believe.

I strongly suggest you try and make an "exact" copy of a piece of art.

[Kato]

And do you think that people who stage Oscar Wilde or G&S or Shakespeare plays should be paying royalties to the heirs?

Try uploading Kenneth Branagh's Hamlet to Wikipedia and see how far you get? Maybe that should be free as well?

Not very, because a different set of copyrights exist.

The copyright in the underlying words, the script (assuming it was accurate to the original) has long since expired, which is why, if I want, I could publish a copy of it without having to pay royalties to Shakespeare's heirs.

The copyright in the film, however, is very much alive and well, and depending on who is deemed to be the creator of the film (the director, I guess?) will continue until 70 years after they have died.

But many of the same moral ambiguities can be applied to Branagh's Hamlet as the NPG's reproductions. Is Branagh the creator of Hamlet? His movie costs vast amounts of money to make. Free Culture Kooks refuse to understand such ambiguities, in fact they refuse to acknowledge pragmatic solutions to most matters. This is why they are now hammering on the NPG and ignoring the duties the NPG has to offering Free Access to the public, and the high maintenance involved. The NPG being a publicly owned institution makes the hammering all the more insidious.

Interesting how to oppose a "right-wing corporate agenda"

Give it up Tobias, I didn't even write "corporate" for starters. Misquote me again on this site and I'll be boarding a plane to Florida. (IMG:smilys0b23ax56/default/dry.gif)

[Push the button]

But many of the same moral ambiguities can be applied to Branagh's Hamlet as the NPG's reproductions. Is Branagh is not the creator of Hamlet, but his movie costs vast amounts of money to make.

I disagree - the movie of Hamlet involved a great deal of original creative expression over and above the mere words on the page that Shakespeare wrote. It is a work of artistic merit in its own right, and not merely as a result of the original script. NPG's reproductions, no matter how technically brilliant, involve no originality whatsoever - all the originality of creation took place back whenever it was that the paintings were first painted - and as I have been saying repeatedly it is original artistic creativity that gives rise to copyright.

This post has been edited by Push the button:

[taiwopanfob]

NPG's reproductions, no matter how technically brilliant, involve no originality whatsoever - all the originality of creation took place back whenever it was that the paintings were first painted - and as I have been saying repeatedly it is original artistic creativity that gives rise to copyright.

You don't know what you are talking about.

Worse, even if you did know what you are talking about, your argument directly leads to nonsense. A photograph of a weevil: you didn't create the weevil, so how can you claim any right to an image of one? It's all just photons flying by; why should you benefit for simply capturing a few of them?

[Kato]

But many of the same moral ambiguities can be applied to Branagh's Hamlet as the NPG's reproductions. Is Branagh is not the creator of Hamlet, but his movie costs vast amounts of money to make.

I disagree - the movie of Hamlet involved a great deal of original creative expression over and above the mere words on the page that Shakespeare wrote. It is a work of artistic merit in its own right, and not merely as a result of the original script. NPG's reproductions, no matter how technically brilliant, involve no originality whatsoever - all the originality of creation took place back whenever it was that the paintings were first painted - and as I have been saying repeatedly it is original artistic creativity that gives rise to copyright.

Regardless of the law, and I've stated a couple of times that I believe that the NPG would lose this case if challenged, the fact remains that to make the reproductions involves time and money. Just as Branagh's Hamlet took time and money.

If you remove the NPG's control over their own reproductions, it damages their capacity to put time and money into further quality reproductions (which are viewable on their website anyway), and undermines our ability to keep our artworks in public hands. The NPG needs control over these images as part of the maintenance process (you can't have people taking photos of paintings whenever they like, as that can damage the work), and it needs control for moral reasons to keep our paintings in public hands.

Without that control, we lose.

[Cla68]

I remember a few years ago I was dismayed to find out that the Australian War Memorial (AWM) stated that the photos in it's database, many of which I hoped to use for Pacific War articles, were copyrighted and illegal to copy or distribute without permission or purchase. The fact is, under Australian copyright law, all photos from that time period are public domain.

I complained to the AWM about it...and I can't remember how they responded and I can't locate the email they sent me. Less than a year later, however, they amended their stipulations and said that the photos could be copied if the AWM was listed as the source, and that's what we've been doing since. I assume this case is similar to the AWM's situation in some ways, although in this case the subject of the photo is public domain, not necessarily the photo itself?

[No one of consequence]

But it should only be available to people who can afford to buy prints?

Maybe I should present myself to Disney World, and demand free entrance. How can they possibly sleep at night, knowing they are denying the pinnacle of western culture to millions of children and adults? On the basis of pure economic discrimination?

I'm also getting a bit pissed off at the local swimming pool. All those signs about having to shower before entry, restrictions on what I can wear in the pool, what I can do in or around the water. Who the hell do these people think they are?

Basically, Kato is dead right here. Proprietary interests are why things are as good as they are around here, and the Free Kulture people are not thinking on a long enough timeline.

I'm going to ignore your irrelevant strawman arguments, and instead ask two questions.

1. Should proprietary interests be indefinite, and if so, what distinguishes artistic innovation from technical innovation? Why is it acceptable for the NPG to claim exclusive use to reproduce portraits that are in the public domain, when pharmaceutical companies only get 21 (or 25) years to exclusively market a drug?

2. Can any owner of the original work of art claim a new copyright by making a careful enough reproduction? How about the original motion pictures made by Edison and the Lumière brothers? Here is a wax cylinder recording of a song by Arthur Sullivan, made in 1888. Can the owner of the original cylinder claim a new copyright over the song or the recording, by making a careful reproduction?

[taiwopanfob]

But it should only be available to people who can afford to buy prints?

Maybe I should present myself to Disney World, and demand free entrance. How can they possibly sleep at night, knowing they are denying the pinnacle of western culture to millions of children and adults? On the basis of pure economic discrimination?

I'm also getting a bit pissed off at the local swimming pool. All those signs about having to shower before entry, restrictions on what I can wear in the pool, what I can do in or around the water. Who the hell do these people think they are?

Basically, Kato is dead right here. Proprietary interests are why things are as good as they are around here, and the Free Kulture people are not thinking on a long enough timeline.

I'm going to ignore your irrelevant strawman arguments, and instead ask two questions.

You effectively ask why people should pay to see stuff in a museum, etc. I take the position to its conclusion and you now claim "strawman". Who is tossing the hay around here, anyways?

1. Should proprietary interests be indefinite, and if so, what distinguishes artistic innovation from technical innovation? Why is it acceptable for the NPG to claim exclusive use to reproduce portraits that are in the public domain, when pharmaceutical companies only get 21 (or 25) years to exclusively market a drug?

Because the NPG owns the physical artefact? Because the NPG wants to maintain the artefact in a pristine condition? That if the NPG is forced to sell the artefact -- say, because it is too expensive to maintain -- it will fall into private hands, and thus be denied to everyone, but for whatever images were made prior to it? Especially so, since it would not be in anyone's further interest to photograph it, given the copyright regime you are demanding?

The basic problem you are ignoring is that copyright is what will ultimately prop up Free Kulture. CC, GFDL, etc, are all meaningless in an environment where copyright is at the whim of the mob of Wikipediots, or even a bunch of retards sitting around a table, in a room, in a building labelled "Supreme Court".

2. Can any owner of the original work of art claim a new copyright by making a careful enough reproduction? How about the original motion pictures made by Edison and the Lumière brothers? Here is a wax cylinder recording of a song by Arthur Sullivan, made in 1888. Can the owner of the original cylinder claim a new copyright over the song or the recording, by making a careful reproduction?

Are you asking a legal question or a moral/ethical one?

Getting back to the point:

Are you going to try and create a copy of a work of art for us, and explain all of the "slavish" details and other un-original aspects?

[GlassBeadGame]

March 2009, without our client’s consent, you:

( a ) accessed our client’s database of images;

( b ) downloaded more than 3,300 high resolution images from our client’s database;

( c ) circumvented the technical measures that our client put in place on its website to prevent those high resolution images from being copied; and

( d ) uploaded those images to the Wikipedia website.

That this pseudonym methodically and with means intended to thwart NPGs efforts at limiting access to material on it's site took over three thousand images will eventually be fully developed. This is not some kids that downloaded 3 songs on Limewire and it would seem to me that he asked to be made an example of by this sustained course of action. I don't completely understand the means employed but NPG's counsel obviously does understand this in detail. An attorney has taken the time to educate him/herself in this wonkery. Do you think that is because they plan to go away? NPG might consider complementing this action with attempts to convince USA prosecuting authorities to pursue computer intrusion charges. The pseudonym violated the NPG site's terms of service. This was in itself enough to sustain a conviction in the Megan Meiers' case. That was a trial court matter and probably not very good law. That case was based on simply providing false information in a user profile. Here we have additional technical steps taken to circumvent limiting access. This is much more like "hacking" than the defendant's action in the Meiers' matter.

In any event maybe the "free culture" fanatics ought to consider the end impact if the pseudonym gets away with this. Galleries in NPG's position will simply not put images on line and everyone will suffer for the arrogant selfishness.

[LessHorrid vanU]

And do you think that people who stage Oscar Wilde or G&S or Shakespeare plays should be paying royalties to the heirs?

Try uploading Kenneth Branagh's Hamlet to Wikipedia and see how far you get? Maybe that should be free as well?

Um, you do need a Performing License to produce plays for money, which is why schools and charitable causes can do it (if they charge entrance it must be for the cause and not the performance) without problem but AmDram societies cannot.

So? I know someone who is "into" the local Amateur Dramatical Society, and she happens to be a butch dyke - so my credibility is not compromised!

[taiwopanfob]

In any event maybe the "free culture" fanatics ought to consider the end impact if the psuedonym gets away with this. Galleries in NPG position will simply not put images on line and everyone will suffer for the arrogant selfishness.

If the NPG removes the online images would it not come to pass that Wikipedia would have to remove their copies too, due to a lack of verifiability? Or will a Special Exception be made?

[LessHorrid vanU]

Thinking about this - and following a comment made earlier - they may have a case as regards the database being abused; either they created the database and/or the methods used in storing the media within it, or they have purchased the software and have a license for its usage and restrictions (even if voluntary) as regards access to it and the information contained.

It may be that even if the original work or its photographic derivative cannot be copyrighted, its digitilised stored form and the software used in storing and accessing it can be?

(Disclaimer; I am not a legal practitioner, and, simply coincidentally, once worked from an address very close to Lincoln Inn Fields.)

[Grep]

Well this would all be extremely hilarious if it were not for the fact that as a UK taxpayer I helped to pay for the photographs that Derrick Coetzee copied. But I liked Georgewilliamherbert's block notice

Due to this legal threat at http://commons.wikimedia.org/wiki/User:Dco...PG_legal_threat emailed from this account, this account is indefinitely blocked from the English Language Wikipedia. Our policy on legal threats on Wikipedia is that such actions are prohibited and immediate cause for indefinite ban on editing.

As you have been using Wikipedia email functions to email legal threats the ability of this account to use email will be blocked as well.

Please contact Mike Godwin at the Wikimedia Foundation for any further discussion on the copyright claim you have asserted.

Hilariously, GWH can't tell the difference between a block and a ban. He forgot to say that according to WP:NLT, the block, although indefinite, lasts while legal threats are outstanding. I also liked the twist whereby NPG is told to contact WMF, even though WMF has of course already refused to reply to them.

Does Dcoetzee really think WMF will pay for his legal costs? All support short of actual help would be my prediction.

[taiwopanfob]

Does Dcoetzee really think WMF will pay for his legal costs? All support short of actual help would be my prediction.

Another good question: if Dcoetzee decides he doesn't want to take the risk and (say) enters into a settlement with the NPG that says everyone walks away on the precondition the pictures must come down, then how does he get the WMF to follow along? We can take it as a given that ninnies like David Gerard will refuse a request for deletion "out of principle".

But then again, maybe the WMF likes Dcoetzee, or maybe even they realize the significant damage to image (or any other) contributions by allowing an editor to hang out to dry like this, and would take them down.

But suppose the WMF, for some reason, hated Dcoetzee? About the only recourse he would have would be to sue the WMF, which would effectively double his costs, aggravation, and loss of sleep. Of course, this would result in him being indefinitely blocked by GWH -- legal threats and all that.


This post has been edited by taiwopanfob:

[MZMcBride]

Everybody agrees that the original images are in the public domain. As far as I can see, this is about faithful reproductions of the original works. (Of course feel free to correct me if I'm mistaken.)

The National Portrait Gallery has spent time, money, resources, energy, etc. to make replicas of these works, removing dust, bad shadows, etc. in order to make the replicas look as similar to the originals as possible. This seems to be undisputed.

The part I find amusing is that the NPG is deliberately trying to not make a derivative work, yet still wants to claim that they hold rights over the images. They're trying to make as close a copy of a work that everybody agrees is in the public domain. I agree that the National Portrait Gallery should be commended for their restoration and preservation work, but I don't for a moment believe that they can try to make an exact copy of a work and then claim to hold special rights to it. It seems almost paradoxical to me.

Now, I have no idea if U.S. or UK law would support my twisted thoughts. I'm not a lawyer and unlike others on the Internet I won't pretend to understand copyright law. But I did find at least this aspect quite amusing.

[Push the button]

Another good question: if Dcoetzee decides he doesn't want to take the risk and (say) enters into a settlement with the NPG that says everyone walks away on the precondition the pictures must come down, then how does he get the WMF to follow along?

Simple answer is that he wouldn't (unless he was foolish or badly advised) enter into a settlement under which he agreed to procure something happen (the deletion of the pictures) that wasn't entirely under his control - unless WMF also entered into the settlement to confirm that it would, upon the settlement taking effect, delete the images (and presumably any re-uploads thereof).

[dtobias]

Nobody has any business agreeing to things, in a settlement agreement or otherwise, that they have no power over in the first place.

[Grep]

Nobody has any business agreeing to things, in a settlement agreement or otherwise, that they have no power over in the first place.

Suggesting that he may not have been well advised in the first place, in doing something that was beyond his power to reverse.

[taiwopanfob]

The part I find amusing is that the NPG is deliberately trying to not make a derivative work, yet still wants to claim that they hold rights over the images. They're trying to make as close a copy of a work that everybody agrees is in the public domain. I agree that the National Portrait Gallery should be commended for their restoration and preservation work, but I don't for a moment believe that they can try to make an exact copy of a work and then claim to hold special rights to it. It seems almost paradoxical to me.

If they can not claim "special rights" to their work, then you will probably never see the images again. What's in it for them?

[Kato]

I agree that the National Portrait Gallery should be commended for their restoration and preservation work, but I don't for a moment believe that they can try to make an exact copy of a work and then claim to hold special rights to it. It seems almost paradoxical to me.

They are clearly not exact copies. They are small photographic representations.

Nobody has any business agreeing to things, in a settlement agreement or otherwise, that they have no power over in the first place.

They have power over their representations. They don't have power over your representations.

[MZMcBride]

The part I find amusing is that the NPG is deliberately trying to not make a derivative work, yet still wants to claim that they hold rights over the images. They're trying to make as close a copy of a work that everybody agrees is in the public domain. I agree that the National Portrait Gallery should be commended for their restoration and preservation work, but I don't for a moment believe that they can try to make an exact copy of a work and then claim to hold special rights to it. It seems almost paradoxical to me.

If they can not claim "special rights" to their work, then you will probably never see the images again. What's in it for them?

It's a public service. Maybe this is the crux of the issue. In the U.S., we expect our public services to serve the public. The National Portrait Gallery is a public service funded by taxpayer money.

[taiwopanfob]

It's a public service. Maybe this is the crux of the issue. In the U.S., we expect our public services to serve the public. The National Portrait Gallery is a public service funded by taxpayer money.

What difference does this make? Is the public (or whoever owns the original) supposed to waste money photographing their collection and then releasing it all for free? Or would it make more sense for the public to benefit from the licensing of the images? Indeed, would not the public, as interested in the efficient use of their taxes, more or less expect the NPG to act as it is acting now?

[dtobias]

In the U.S., anything produced by federal government workers in the course of their work is considered public domain, I guess on the theory that if your tax money paid for it, it shouldn't be considered proprietary.

[tarantino]

All the NPG images on Commons have been tagged with Template:Copyfraud. This template was originally called Copyright claims but the barrister Mike Lifeguard felt that wasn't accurate.

Current revision as of 04:35, 11 July 2009

While Commons policy accepts the use of this media; its copyright status in its country of origin may be disputed. One or more third-parties have made potentially invalid copyright claims in relation to the work from which this is sourced, or a purely mechanical reproduction thereof. This may be due to recognition of the "sweat of the brow" doctrine, allowing works to be eligible for protection through skill and labour and not purely by originality such as in the United States (where Wikimedia Commons is hosted).

As such, use of this image in the jurisdiction of the claimant may be regarded as copyright infringement. Before using this content, please ensure that you have the right to use it under the laws which apply in the circumstances of your intended use. You are solely responsible for ensuring that you do not infringe someone else's copyright.

Please note: This is not a copyright tag. A valid license is needed in addition to this tag.

[One]

I'm going to ignore your irrelevant strawman arguments, and instead ask two questions.

1. Should proprietary interests be indefinite, and if so, what distinguishes artistic innovation from technical innovation? Why is it acceptable for the NPG to claim exclusive use to reproduce portraits that are in the public domain, when pharmaceutical companies only get 21 (or 25) years to exclusively market a drug?

Funny that you ignore strawmen by asking one. They aren't claiming that right. They are claiming that the digital photographs they created are theirs; the same photographs that were directly taken from their site. Nothing stops Wikipedia from using an older photograph which may be in the public domain, or even snapping one of their own. Once copyright on these photos expires, they're gone. Jeez.

Oh, and this case would be a loser under US law, but I'm not sure why users keep citing US concepts like "sweat of the brow." I have no idea about Britain; maybe they would recognize copyrights in reproductions. Doesn't the EU allow crazy non-original stuff like rights in databases? Might not be as frivolous as folks here seem to think, but I would still bet they lose. Just even money though.

Apparently, the WMF has already considered this claim, and might fight it (with publicity):

To put it plainly, WMF's position has always been that faithful reproductions of two-dimensional public domain works of art are public domain, and that claims to the contrary represent an assault on the very concept of a public domain. If museums and galleries not only claim copyright on reproductions, but also control the access to the ability to reproduce pictures (by prohibiting photos, etc.), important historical works that are legally in the public domain can be made inaccessible to the public except through gatekeepers.

WMF has made it clear that in the absence of even a strong legal complaint, we don't think it's a good idea to dignify such claims of copyright on public domain works. And, if we ever were seriously legally challenged, we would have a good internal debate about whether we'd fight such a case, and build publicity around it. This is neither a policy change (at least from WMF's point of view), nor is it a change that has implications for other Commons policies. --Erik Möller 01:34, 25 July 2008 (UTC)

This post has been edited by One:

[GlassBeadGame]

All the NPG images on Commons have been tagged with Template:Copyfraud. This template was originally called Copyright claims but the barrister Mike Lifeguard felt that wasn't accurate.

Current revision as of 04:35, 11 July 2009

While Commons policy accepts the use of this media; its copyright status in its country of origin may be disputed. One or more third-parties have made potentially invalid copyright claims in relation to the work from which this is sourced, or a purely mechanical reproduction thereof. This may be due to recognition of the "sweat of the brow" doctrine, allowing works to be eligible for protection through skill and labour and not purely by originality such as in the United States (where Wikimedia Commons is hosted).

As such, use of this image in the jurisdiction of the claimant may be regarded as copyright infringement. Before using this content, please ensure that you have the right to use it under the laws which apply in the circumstances of your intended use. You are solely responsible for ensuring that you do not infringe someone else's copyright.

Please note: This is not a copyright tag. A valid license is needed in addition to this tag.

There seems to be no end to their arrogance. This has got to make NPG's council have second thoughts about the more or less conciliatory approach they have taken so far. I can see no reason why they should not make an example out their hapless little friend. They may also take down some others who make downstream use of the images due to an improper warning and an overly confident assessment of NPG's claim.

[dogbiscuit]

It strikes me that the fundamental issue that the freedophiles have no answer to is: regardless of the subtleties of copyright law, when someone goes to effort and expense to make something available that was not otherwise available, why do they consider it their right to take the fruits of that labour for nothing?

It seems to me that the Commons copyfraud statement is essentially typical American arrogance of imposing American standards on the rest of the world (because, regardless of it being an international effort, Wikipediots invariably fall back on an American view of how things should be done and assume that other points of view are irrelevant). I wonder, however, what they feel about China and Russia's approach to copyright on American designs where they take a more carefree view? The copyfraud statement essentially legitimises cross-border theft, yet the same approach is taken by Russia to ignore other countries' claims on copyright.

A further issue is that there is a loss of value as soon as such pictures get into Wikipedia - fundamentally it is a question of being a reliable source. Once in the Commons, people are free to hack about. Sourced from the NPG for example, we have a reasonable expectation that the picture is what it claims to be. There can be no assumption that in 1, 5, 20 or 100 years the Wikipediots have enough common sense to ensure that the Commons repository is not corrupted - Wikipediots with the zeal to colorize photographs in grey, or de-speckle a picture of [Insert freckly person of your era here] so rather than free pictures we have corrupted information.

Another minor point with regard to re-digitization, the music industry tends to renew copyright when they do a re-master of their product, even though the intent is to produce something that sounds exactly like the original only more so.

[SB_Johnny]

I'm not sure what I think about this case, but a lot of effort has gone into building good relationships with museums lately. For example: http://commons.wikimedia.org/wiki/Commons:...us_Views_of_Edo

Makes me wonder if the NPG bothered to try to start a conversation with the MWF before sicking the lawyers on them.