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.

[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.

He once, very briefly, had a Wikipedia Bio.

See the WR scraping of it here.

Jon

[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: Sat 11th July 2009, 4:08am

[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.....


(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: Sat 11th July 2009, 4:28am

[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)