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> The National Portrait Gallery Threatens Litigation, Big Oops for WMF?
No one of consequence
post Sat 11th July 2009, 12:46pm
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QUOTE
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...
QUOTE

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?
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Kato
post Sat 11th July 2009, 12:46pm
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QUOTE(No one of consequence @ Sat 11th July 2009, 1:37pm) *

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.
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Push the button
post Sat 11th July 2009, 12:47pm
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QUOTE(Kato @ Sat 11th July 2009, 11:33pm) *


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: Sat 11th July 2009, 12:48pm
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No one of consequence
post Sat 11th July 2009, 12:52pm
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QUOTE(taiwopanfob @ Sat 11th July 2009, 12:42pm) *

QUOTE(Push the button @ Sat 11th July 2009, 11:40am) *

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.
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Kato
post Sat 11th July 2009, 12:53pm
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QUOTE(No one of consequence @ Sat 11th July 2009, 1:46pm) *
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?
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Push the button
post Sat 11th July 2009, 12:57pm
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QUOTE(Kato @ Sat 11th July 2009, 11:53pm) *

QUOTE(No one of consequence @ Sat 11th July 2009, 1:46pm) *
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.
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post Sat 11th July 2009, 12:58pm
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QUOTE(No one of consequence @ Sat 11th July 2009, 6:37am) *

QUOTE(Kato @ Sat 11th July 2009, 12:23pm) *

QUOTE(No one of consequence @ Sat 11th July 2009, 12:54pm) *

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.
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Peter Damian
post Sat 11th July 2009, 12:58pm
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QUOTE(No one of consequence @ Sat 11th July 2009, 1:52pm) *

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



QUOTE
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.

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No one of consequence
post Sat 11th July 2009, 12:58pm
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QUOTE(Kato @ Sat 11th July 2009, 12:53pm) *

QUOTE(No one of consequence @ Sat 11th July 2009, 1:46pm) *
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?

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taiwopanfob
post Sat 11th July 2009, 1:00pm
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QUOTE(No one of consequence @ Sat 11th July 2009, 12:37pm) *
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.
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Peter Damian
post Sat 11th July 2009, 1:00pm
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'Wanker' Gerard chimes in

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

QUOTE

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: Sat 11th July 2009, 1:01pm
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dtobias
post Sat 11th July 2009, 1:01pm
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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).
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taiwopanfob
post Sat 11th July 2009, 1:03pm
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QUOTE(No one of consequence @ Sat 11th July 2009, 12:52pm) *
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.
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Kato
post Sat 11th July 2009, 1:05pm
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QUOTE(Push the button @ Sat 11th July 2009, 1:57pm) *

QUOTE(Kato @ Sat 11th July 2009, 11:53pm) *

QUOTE(No one of consequence @ Sat 11th July 2009, 1:46pm) *
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.

QUOTE(dtobias @ Sat 11th July 2009, 2:01pm) *

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. dry.gif
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Push the button
post Sat 11th July 2009, 1:06pm
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QUOTE(Kato @ Sun 12th July 2009, 12:04am) *

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: Sat 11th July 2009, 1:08pm
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taiwopanfob
post Sat 11th July 2009, 1:16pm
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QUOTE(Push the button @ Sat 11th July 2009, 1:06pm) *
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?
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Kato
post Sat 11th July 2009, 1:17pm
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QUOTE(Push the button @ Sat 11th July 2009, 2:06pm) *

QUOTE(Kato @ Sun 12th July 2009, 12:04am) *

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.
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post Sat 11th July 2009, 1:21pm
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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?
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No one of consequence
post Sat 11th July 2009, 1:25pm
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QUOTE(taiwopanfob @ Sat 11th July 2009, 1:00pm) *

QUOTE(No one of consequence @ Sat 11th July 2009, 12:37pm) *
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?

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taiwopanfob
post Sat 11th July 2009, 1:48pm
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QUOTE(No one of consequence @ Sat 11th July 2009, 1:25pm) *

QUOTE(taiwopanfob @ Sat 11th July 2009, 1:00pm) *

QUOTE(No one of consequence @ Sat 11th July 2009, 12:37pm) *
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?

QUOTE
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".

QUOTE
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?
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