New Developments In NPG/Wikipedia Lawsuit Threat 345
Raul654 writes "Last week, it was reported that the UK's National Portrait Gallery had threatened a lawsuit against an American Wikipedian for uploading pictures from the NPG's website to Wikipedia. The uploaded pictures are clearly in the public domain in the United States. (In the US, copies of public domain works are also in the public domain. UK law on the matter is unclear.) Since then, there have been several developments: EFF staff attorney Fred von Lohmann has taken on the case pro-bono; Eric Moeller, Wikimedia Foundation Deputy Director, has responded to the NPG's allegations in a post on the WMF blog; and the British Association of Picture Libraries and Agencies has weighed in on the dispute in favor of the NPG."
Pictures versus digital photos... (Score:4, Insightful)
I fully agree that the paintings are in the public domain, but it does NOT mean that the digital photos are. If he created his own photos, he could post them. The only question is whether or not a straight copy of a work can be copyrighted on its own... which is why the museum is arguing that artistry went into creating them.
Having done museum copywork in the past, I can assure you that getting high-quality images of paintings is NOT simple - lighting is critical to capture the texture, color, and avoid reflections and shadows. It's not just point-and-click. I'd side with the museum here, sorry!
madCow.
Re:Pictures versus digital photos... (Score:3, Insightful)
Re:Pictures versus digital photos... (Score:3, Insightful)
Likewise, while it may not be easy to photograph one of these works, you are certainly not adding anything to the actual content of the image; indeed, you are actively trying not to. Technical expertise went into creating them, yes. Artistry, no.
That's like claiming that you're not adding anything when photographing a person. Realistically, we know that in either situation the photographer is applying their creative skill and making choices and judgments about what aspects to capture. The photograph will NOT be exactly the same as the original - it's a representation. Capturing the texture and the qualities of the canvas, deciding what lighting to use (and let's face it that affects the colour, the perception of the texture, everything), the angle to use... there is every bit as much creativity in applying these choices to photogrsphing a painting as in photographing anything else. Pretending that it's eqivalent to chucking something on the photocopier and pressing a button is silly.
Yo may "try not to" make any artistic choices in photographing a painting just as you may "try not to" when photographing a person but realistically you have to. And in either case the photographers are exercising artistic skills.
Re:This isn't a Robin Hood story (Score:3, Insightful)
Re:Pictures versus digital photos... (Score:3, Insightful)
Even if accurate reproductions require a great deal of skill, experience and effort, the key element for copyrightability under U.S. law is that copyrighted material must show sufficient originality.
Which does not matter, as the museum is in the UK and threatening a lawsuit under UK law.
Re:This isn't a Robin Hood story (Score:3, Insightful)
The situation is problematic, I agree. However, I think museums need something of a shakeup on this issue. Natural history museums, in particular, need to make photographs of specimens much more easily available for research. Most of these museums have government funding streams, and should see the digital dissemination of their collections as part of their mission, not merely as revenue. Their collections are all to often jealously guarded, which is what making them public institutions is supposed to avoid.
The BAPLA response (Score:2, Insightful)
First off, I can't even copy some quotes from the article at http://www.bjp-online.com/public/showPage.html?page=865802 [bjp-online.com], because they've done that stupid hijacking of my browser (I know, I'm using IE - I'm at work), and they claim "copyright" over it (despite the fact that their article quotes over people...) Nevermind, View Source to the rescue.
Simon Cliffe of BAPLA says "We understand that other people who have had similar experiences with Wikipedia and Wikimedia Commons have been told that they regard all images of out of copyright material as public domain"
Imagine that - thinking that out of copyright material is public domain!
"and dispute there is any copyright in a copy of an original work"
Not true at all - the point is that making a copy of public domain material doesn't constitute original work. They are perhaps confusing effort with originality.
"If owners of out of copyright material are not going to have the derivative works they have created protected, which will result in anyone being able to use them for free"
Just think, people might be able to use out of copyright material for free! When it's fully allowed by US law!
"but to assert the protection the law provides for their commercial interest"
US law provides them with no such protection. So they'll have to think up another way to profit from other people's work from centuries ago (not that there's any evidence that Wikipedia showing these images will harm their ability to profit - I don't think anyone goes "I'm not going to bother going to a gallery, when I could just sit at home on Wikipedia").
Re:Pictures versus digital photos... (Score:5, Insightful)
Re:This isn't a Robin Hood story (Score:5, Insightful)
That depends on the reader being at or near the geographical location of the painting. When reading an article about the Mona Lisa on Wikipedia, I expect to see a photo of the article in question for purpose of discussion, not "to see this painting, please visit the Louvre in France"
I'd simply go elsewhere to find a picture.
McKinnon ring a bell? (Score:4, Insightful)
UK resident.
Working on a UK machine.
Re:This isn't a Robin Hood story (Score:3, Insightful)
Exactly. And that is the real crux of this. While copyright is most often a tool for greed. In this particular case it really isn't. The choice is: allow these pictures to be free copied and distributed ad high quality and not be able to raise revenue to allow FREE access to the gallery. Or, allow the status quo to continue and provide an excellent free service to all.
The fact that entry to public museums and galleries in the UK is mostly free is a really big deal. Few countries do this, and it is a great thing for everyone.
The greater good for society is to allow these images to be copyrighted. Whether wikipedia is really interested in the greater good over their own vanity is very much open to scrutiny and debate.
Re:Pictures versus digital photos... (Score:3, Insightful)
That's not what "creative" means. Difficult/requiring skill is different - they are orthoganal matters.
Re:Pictures versus digital photos... (Score:3, Insightful)
Re:Pictures versus digital photos... (Score:3, Insightful)
Did you even read the summary? Under US law, copies of public domain works are in the public domain. PERIOD.
Having done museum copywork in the past, I can assure you that getting high-quality images of paintings is NOT simple - lighting is critical to capture the texture, color, and avoid reflections and shadows. It's not just point-and-click.
The ease or difficulty, and quality of the copy, is irrelevant. They're copies of public domain works and can not be copyrighted.
Re:UK Law is not unclear (Score:5, Insightful)
I seem to recall that people from the UK have been extradited to the US and charged, for things they did in the UK that the UK authorities decided were legal (or at least things that they should not be prosecuted for).
And a certain Russian programmer was arrested and jailed in the US for things he did in Russia that were legal there... remember that one ?
Why should the reverse not apply ?
Re:Pictures versus digital photos... (Score:4, Insightful)
However the US is a signatory of the Berne Convention [wikipedia.org].
The Berne Convention requires its signatories to recognize the copyright of works of authors from other signatory countries.
Recognising the copyright of a work created outside the the US is a different set of circumstances to refusing to grant a copyright to a digital photo created in the US.
A court might consider a work created and copyrighted outside of the US differently to a work denied copyright in the US under Bridgeman Art Library v. Corel Corp.
Free Entry != No Cost (Score:1, Insightful)
The National Portrait Gallery in LONDON does not charge people who can turn up and enter the premises, which is lovely for people who live in LONDON, but increasingly expensive as your location diverges from LONDON. This means that poor people from Scotland, for instance, ahve little chance of seeing the images in a decent resolution, unencumbered bt the NPG's assininse DRM viewer.
Wikimedia putting these images on the web benefits everyone in the world, including all those people for whom a trip to the NPG and an overnight stay is unfeasible.
Since the NPG has spent the money on digitisation and doesn't recoup it by charging admission, I'm not sure how people NOT coming through the doors will be to the NPG's detriment. Even if they get money proportional to the amount of people coming though the door, I'm not sure that putting the full-res images on the web would deter anyone in the vicinity from going into the gallery and viewing the paintings for real - it's clearly more ideal - and I highly doubt that anyone so dedicated to viewing the images that they'd make the trip from afar, would be deterred by the availability of the digitised images on the web.
Re:This isn't a Robin Hood story (Score:5, Insightful)
No, the better solution is for both groups to compromise. NPG already offered lower-res versions of the same photographs for Wikipedia to use free of charge. I think to retain good-will for all, and not appear to be selfish asstards, Wikipedia should take them up on the offer. The representatives on all sides could then present this as a workable solution to similar future situations without involving courts and lawyers. Everybody wins, including the public.
Re:NPG = Free Entry (Score:5, Insightful)
There is a difference. Your photograph was still within it's copyright period.
Copyright extends to 70 years past the author's death (in the UK). Since you are still alive, any photograph you take is obviously still within it's copyright - with one caveat.
The caveat is exactly what is at issue. You cannot claim copyright on a direct copy of someone else's work. You CAN claim copyright on a DERIVATIVE work. So the question here is was the photograph of the painting a derivative work?
The goal of the photograph was to reproduce the painting in digital form exactly as it was meant to be viewed in the gallery. No changes were made, and the painting was not used as the basis for a new work (even a person standing next to it within the shot is a 'derivative' work). Which would mean the photographs in question were NOT derivative works, but merely digital copies of the original, and not copyrightable in and of themselves (they would piggy back on the original copyright).
Which means any digital image of a painting that is in the public domain, is also public domain - as it is not a derivative artwork. And you cannot steal something that is public domain.
In your case, yes, someone stole your art work, because it IS within it's copyright. And regardless of whether they stole a print, the digital image, or any other faithful reproduction of your photograph, it would still be counted as illegally copying of your work. But 70 years after you die, anyone and their dog can take your image with impunity. They can even take the image of someone else's photograph of your image on a screen (as long as it's not altered in any way).
So as someone else said, yes, it might take a lot of technical expertise to faithfully capture these images to do them justice, but that does not suddenly give the person taking them copyright on what is, essentially, a faithful reproduction of the original artwork not a derivative.
By way of example, how about we take the works of Shakespear. Originally released in manuscript form. Someone took that manuscript and typed it into computer text files. Does that mean that person now has copyright on the resulting text file? It certainly took a lot of effort to transcribe the text - but it doesn't matter. Just because it took a lot of effort to do something (it takes a lot of effort to paint a forgery, too) does not infer copyright - if the text is identical to the original shakespear, then it is just a faithful reproduction on another medium and still int he public domain.
Re:Pictures versus digital photos... (Score:5, Insightful)
On the contrary, you're just flat-out wrong -- at least for the sort of photography (for the purpose of archival/preservation/digitization) we're talking about here. The artistry in photography is expressed by the choices of the photographer, but no choices were made! Did the photographer choose the subject? No, he's just systematically shooting each painting in the gallery. Did the photographer choose the composition? No, it's rigidly defined to be orthogonal to the painting and cropped at the edge. Did the photographer choose the lighting, colors, effects, etc.? No, he just used whatever lighting and camera settings would best preserve the color gamut of the original (and "best" isn't his choice either; it means minimizing the measured, mathematical difference). It's a mechanical process, not a creative one!
Now, there can be artistry in photographing a painting, but the photo would have had to been made for some purpose other than digitizing an existing work. For example, this [usf.edu] photo (that I found randomly from a Google image search) is copyrightable because it was creatively composed. For another example, this one from one of the images being disputed, perhaps even this [wikimedia.org] would be copyrightable (even though the original [wikimedia.org] is certainly not) because whoever did the cropping had to creatively choose what to focus on -- and the copyright would belong to the cropper, not NPG.
Re:Pictures versus digital photos... (Score:4, Insightful)
I disagree.
I don't care how hard it is, the result is not creative because you're not trying to express yourself, you're just trying to work around the limitation of that the painting can't be taken off the fall and fed into a scanner.
The desired result is an accurate reproduction of the painting, and that's precisely why it's not creative. How hard you have to work to get there is completely irrelevant, the fact is that the end result looks as much as the painting as possible, and any other photographer given the same task would attempt to produce something that looked similar.
Otherwise I could easily obtain copyright for a copy of anybody's work, I'd just have to do it by a laborious method.
Re:Try doing the same in the US (Score:3, Insightful)
Probably for the same reason I can go to Amazon and buy a copy of 20,000 Leagues Under the Sea.
Re:UK Law is not unclear (Score:4, Insightful)
You miss GP's point. The problem isn't that UK will extradite people to Iran (it doesn't). The problem is that UK will extradite people to US, because US demanded that, and a corresponding treaty was signed; however, US will still not extradite people to UK. That's where the hypocrisy is .
Re:Pictures versus digital photos... (Score:3, Insightful)
I think the point being made is: the photographs were created with the intention of being as faithful to the original paintings as possible without adding any new creative input. Doing that in photography is hard work, an incredible amount of time and expertise goes into the setup for the picture.
In the US, such a faithful duplication of a work that is in the public domain is also considered part of the public domain. The point isn't that the duplication was necessarily easy to perform, but that the duplication was performed with the minimum possible amount of new creative input so as to remain as faithful to the original as the duplicator could manage. This doesn't mean that any image that incorporates source material from the public domain is automatically impossible to copyright, but it does mean that in order to copyright it the new work would have to be something other than a maximally-faithful reproduction of the original.
You're right, the creation of the copies likely involved a significant expenditure of time and effort and requires a great deal of skill. However, in the US, the amount of effort required to do something has never been part of the test for whether a work can be copyrighted.
The fact that the portraits are in the UK, and the work was done by a UK photographer at the behest of a UK organization means that, in the UK, those works may be considered copyrighted. However the contention thus far has been: in the US they're not considered copyrighted.
Re:Pictures versus digital photos... (Score:5, Insightful)
Sure, in the same way that answering "four" when asked "what is two plus two?" is a choice. Or, for a less "trivially easy" example, how solving a crossword puzzle correctly instead of incorrectly is a "choice." Or in other words, it's really no choice at all -- it's either right or it's wrong, and you don't get to decide which is which!
The fundamental error in your thinking is that you think it somehow matters whether the thing was easy or hard to create. Here's a hint: it doesn't. Not even slightly! I could spend six seconds scrawling stick figures on a napkin and it'd still be copyrightable. Or I could spend 50 years painstakingly weighing every individual grain of sand in a jar and recording it into a database, and it still wouldn't! Creativity and effort are orthogonal; copyright depends only on the former.
Oh, and by the way: my girlfriend is an artist and has had to photograph her work before, so I do know how difficult it is. But that still doesn't give the photo it's own copyright separate from that of the original!
Re:Pictures versus digital photos... (Score:3, Insightful)
Not quite. Copyright's purpose in the United States is to benefit the whole of society by encouraging production of new works. Making such production profitable is only the means of achieving that purpose, not the purpose itself.
Copyright's purpose in Europe is indeed profit (or at least ownership, which implies profit), but is not intended to benefit the whole of society.
Re:UK Law is not unclear (Score:3, Insightful)
Photographs of Public Domain works are not copyrightable under US law. This is a special exception to the general rule concerning copyright and photographs, and only applies to works in the Public Domain. In the specific case of Public Domain works, photographic reproduction of the works is treated as a mechanical process, and not a creative process (the way photographs are normally treated under US law).
This isn't a special exception, it's an application of a general principle: in the US, a work can be copyrighted only insofar as it's at least minimally creative. The biggest general precedent here is Feist v. Rural. So when you do something technically very demanding, but uncreative, you get no new copyright.
If you reproduce ("slavishly copy") a work that was copyrighted by Bob Smith, then your reproduction is also copyrighted by Bob Smith, not you. If you reproduce a work that was in the public domain, then so is your reproduction. The reproduction always has the same copyright status as what's being copied, in all cases, as long as it's a slavish copy.
As I stated in another post, the most fair and equitable solution for all sides is for Wikipedia to remove the high-res versions and replace them with the still high-quality but lower-res versions offered to them for 'Fair Use' by NPG.
Everybody wins, no courts or ambulance-chasers need to be involved.
No, someone has to lose. Either the NPG has to lose a revenue stream they thought they'd get, or anyone who wants high-res images has to lose the ability to get them for free from the Wikimedia Commons. There's no way for everyone to win here.