Tuesday, 21 July 2009

Copyright in photo of painting? National Portrait Gallery & Wikimedia administrator

There’s been lots of reports on the kerfuffle involving the UK National Portrait Gallery and US Wikipedia user Derrick Coetzee, who obtained some 3000 high resolution photos of paintings from the NPG website and uploaded them to Wikipedia – e.g. see BBC, Guardian, Open Objects (which makes the point that other sites using the image from Wikipedia may not attribute it correctly to the NPG), Creative Commons, and Wikipedia itself.

The NPG had commissioned and paid for those photos, and said they had the copyright in the photos, which was breached by Mr Coetzee. They felt the free public availability of those high resolution photographs on web encyclopaedia Wikipedia would damage their income stream and their expensive project to digitise their collection.

The twist is that the photos were of public domain paintings - i.e. the copyright in those paintings had expired, so anyone would technically be free to reproduce the paintings. But the NPG don’t allow visitors to take photos of their art.

The copyright issue here relates to the photos commissioned by the NPG, not the paintings. The NPG also said that what Mr Coetzee did was in breach of contract and, separately, a violation of their database rights in those photos.

Another twist is that in the USA, there’s no copyright issue if you take a photo of public domain artwork because there’s no copyright in the “faithful reproduction” i.e. the photo doesn’t enjoy copyright - Bridgeman Art Library v. Corel Corp. And in the USA Mr Coetzee is receiving pro bono help from US EFF lawyer Fred von Lohmann.

However, the issues Mr Coetzee faces are under English, not US, law, and if sued he’d be sued in the UK. As far as I know, this kind of situation’s never come before a UK court. Yet.

English law issues

As I’m not a copyright lawyer, I don’t feel qualified to comment in any detail on any of this, but I can point to:

  • the case against Mr Coetzee, as put forward by NPG’s lawyers Farrer &Co in a letter to him, and published by him (I do wonder if there’s a copyright problem with his publication of Farrers’ letter, which is strictly their copyright, but if there is they’re clearly being circumspect about raising it!). See also the NPG page with their views and policies on copyright generally
  • other analysis and arguments on whether Mr Coetzee has a decent defence under English law under contract, copyright (can you have copyright in a photo of a public domain work?) and database right, in various blog posts linked to in this ORG blog post, suggesting it’s not necessarily an open and shut case.

Cultural / financial issues

Quite apart from the legal issues of course, there’s the fundamental issue for society of how you fund art and access to art (whether physical access through visits, or virtual access through digitisation and Web access to images).

Should art galleries and museums be able to raise money through licensing high resolution digital reproductions of their paintings / pictures etc; or should they permit free access to those digital images because public taxes (or whoever has financed the digitisation) have already paid for it? Does it depend partly on how the institution concerned is funded, and to what extent?

I don’t think there’s an easy answer to those questions, especially in these economically straitened times.

Wikimedia and the NPG are reportedly in talks. Their outcome is awaited with interest.

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