 |
In July 2009, lawyers representing the National Portrait Gallery of London (NPG) sent an email letter warning of possible legal action for alleged copyright infringement to Derrick Coetzee, an editor/administrator of the free content multimedia repository Wikimedia Commons, hosted by the Wikimedia Foundation.
In 2009, a letter sent by representatives of Britain's National Portrait Gallery stated that Derrick Coetzee had downloaded more than 3,300 high-resolution images from the gallery's database of images and had posted them for re-use on Wikimedia Commons. [1] [2] [3]
The NPG letter stated the claim that while the painted portraits may be old (and have thus fallen into the public domain), the high-quality photographic reproductions are recent works, and qualify as copyrighted works due to the amount of work it took to digitize and restore them, [2] [4] [5] that the action of uploading the images infringed on both the NPG's database rights and copyrights, [3] [4] [6] [7] and that the images were obtained through the circumvention of technical measures used to prevent downloading of the prints. [8] The NPG also stated that the public availability of the images would affect revenue acquired from licensing the images to third parties, revenue also used to fund the project of digitizing their collection, [7] an effort that the NPG claims cost the organization over £1,000,000. [1] The NPG had requested a response from Coetzee by 20 July 2009, and requested that the images be removed from the site, but noted that the NPG was not considering any legal action against the Wikimedia Foundation. [2] [3] The NPG announced that Coetzee had responded via his legal representative by the requested deadline. [4] [9] Coetzee's legal representation was provided by the Electronic Frontier Foundation. [2]
Coetzee publicly posted a copy of the legal letter from the NPG, indicating that he desired to "enable public discourse on the issue". [1] On 17 July 2009, NPG gallery spokesperson Eleanor Macnair stated that "contact has now been made" with the Wikimedia Foundation and "we remain hopeful that a dialogue will be possible." [2] The NPG has stated that it would be willing to permit Wikipedia to use low-resolution images, and that it hoped to avoid taking any further legal action. [1] The NPG had previously attempted to contact the Wikimedia Foundation in April 2009 regarding this issue, but did not receive an immediate response. [1]
The British Association of Picture Libraries and Agencies (BAPLA), an image industry trade group, expressed support for the gallery. [5]
In early 2010, an NPG spokesperson reported to Heise Open, a division of German publishing house Heinz Heise, "We had a constructive discussion in December and are now considering how best to come to an agreement." [10] In November 2010, Tom Morgan, Head of Rights and Reproductions at the National Portrait Gallery addressed a conference attended by both Wikipedians and representatives of cultural institutions. Morgan's presentation was entitled "Wikipedia and the National Portrait Gallery – A bad first date? A perspective on the developing relationship between Wikipedia and cultural heritage organisations". [11]
The 1999 United States District Court case Bridgeman Art Library v. Corel Corp. (in which Bridgeman Art Library sued the Corel Corporation for copyright infringement for distributing copies of digital reproductions of public domain paintings sourced from Bridgeman on a CD-ROM) established that "a photograph which is no more than a copy of a work of another as exact as science and technology permits lacks originality. That is not to say that such a feat is trivial, simply not original." [12] As a result, reproductions of works that have fallen into the public domain cannot attract any new copyright in the United States. [12] As such, local policies of the Wikimedia Commons web site ignore any potential copyright that could subsist in reproductions of public domain works. [5]
However, British case law can take into account the amount of skill and labour that took place in the creation of a work for considering whether it can be copyrighted in that country. [5] The letter from the National Portrait Gallery demands that the case should be heard in the UK under UK law and not in the US under US law. The issue of jurisdiction is complicated as the National Portrait Gallery is located in the United Kingdom, but Wikimedia Commons, and the uploader, are both located within the United States. The letter also claims that by making the images freely available on Wikimedia Commons, Coetzee would also be liable under the British Copyright, Designs and Patents Act 1988 for any copyright infringement committed by other users who download and use the images. [1] [8]
Erik Möller, deputy director of the Wikimedia Foundation, made a statement on the issue, clarifying the stance of the Wikimedia Foundation on the incident. [6] [13] Möller stated that although the NPG has agreed that the images are in the public domain, the NPG had contended that they own the exclusive rights to their reproductions of the images, using this to monetize their collection and assert control over public domain content. [13] Möller also stated "It is hard to see a plausible argument that excluding public domain content from a free, non-profit encyclopaedia serves any public interest whatsoever." [6] Möller further described the agreement that other cultural institutions have made with Wikipedia to disseminate images: two German photographic archives donated 350,000 copyrighted images, and other institutions in the United States and the UK have made material available for use. [6] The NPG stated that the images released by the German archives were medium resolution images, and that the NPG had offered to share images of the same quality. [6]
A reporter for the BBC stated that the NPG made a total of £339,000 from licensing images for use in traditional publications in 2008. [6]
Fred von Lohmann, an attorney with the Electronic Frontier Foundation (EFF), remarked that the situation comes down to asking whether US companies and citizens would be "bound by the most restrictive copyright law anywhere on the planet, or by U.S. law?" [14] In a legal analysis, Lohmann contended that under US law, the NPG's "browse wrap" contract was not enforceable, database rights are not implemented at all, and that "using Zoomify on public domain images doesn't get you a DMCA claim." [15] Lohmann also observed:
NPG seems to think that UK law should apply everywhere on the Internet. If that's right, then the same could be said for other, more restrictive copyright laws, as well (see, e.g., Mexico's copyright term of life of the author plus 100 years and France's copyright over fashion designs). That would leave the online world at the mercy of the worst that foreign copyright laws have to offer, an outcome no U.S. court has ever endorsed. [15]
In 2012, the National Portrait Gallery licensed 53,000 low-resolution images under a Creative Commons Attribution-NonCommercial-NoDerivatives license, [16] [17] making them available free of charge for non-commercial use, although not suitable for Wikimedia Commons or Wikipedia. A further 87,000 high-resolution images are available for academic use under the Gallery's own license that invites donations in return; previously, the Gallery charged for high-resolution images. [18]
By 2012, 100,000 images, around a third of the Gallery's collection, had been digitized. [18]
In November 2015, the United Kingdom's Intellectual Property Office clarified in an informational document that, based on the opinion of the European Court of Justice, "copyright can only subsist in subject matter that is original in the sense that it is the author's own 'intellectual creation'. Given this criterion, it seems unlikely that what is merely a retouched, digitised image of an older work can be considered as 'original'." [19]
As of January 2024, the NPG still display a "© National Portrait Gallery, London" notice next to images such as the Darwin portrait shown above, claiming that they are only licensed by them for "limited non-commercial use", and displaying fees and terms for academic or commercial use. [20] The Wikimedia Foundation continue to host the images, with notices saying (e.g. in the Darwin case) "The author died in 1934, so this work is in the public domain in its country of origin and other countries and areas where the copyright term is the author's life plus 80 years or fewer." [21]
The collection at Wikimedia Commons appeared to encourage sales by NPG: according to Andrea Wallace, "Rather than damaging their profitability, the NPG reported 36/50 of the top selling images from 2010–2015 came from these". [22]
A November 2023 Appeal Court judgement (THJ v. Sheridan, 2023) by Lord Justice Arnold clarified that, in the UK, no new copyright is created in making a photographic reproduction of a two-dimensional public domain artwork, and that this has been the case since 2009. [23] [24]
A Creative Commons (CC) license is one of several public copyright licenses that enable the free distribution of an otherwise copyrighted "work". A CC license is used when an author wants to give other people the right to share, use, and build upon a work that the author has created. CC provides an author flexibility and protects the people who use or redistribute an author's work from concerns of copyright infringement as long as they abide by the conditions that are specified in the license by which the author distributes the work.
The National Portrait Gallery (NPG) is an art gallery in London that houses a collection of portraits of historically important and famous British people. When it opened in 1856, it was arguably the first national public gallery in the world that was dedicated to portraits.
The National Portrait Gallery (NPG) is a historic art museum between 7th, 9th, F, and G Streets NW in Washington, D.C., United States. Founded in 1962 and opened in 1968, it is part of the Smithsonian Institution. Its collections focus on images of famous Americans. Along with the Smithsonian American Art Museum, the museum is housed in the historic Old Patent Office Building.
The German Wikipedia is the German-language edition of Wikipedia, a free and publicly editable online encyclopedia.
The Danish Wikipedia started on 1 February 2002 and is the Danish language edition of Wikipedia. As of April 2024, it has 298,934 articles and its article depth is 57.64.
The Bridgeman Art Library, based in New York, London, Paris and Berlin, provides one of the largest archives for reproductions of works of art in the world. Founded in 1972 by Harriet Bridgeman, the Bridgeman Art Library cooperates with many art galleries and museums to gather images and footage for licensing.
The threshold of originality is a concept in copyright law that is used to assess whether a particular work can be copyrighted. It is used to distinguish works that are sufficiently original to warrant copyright protection from those that are not. In this context, "originality" refers to "coming from someone as the originator/author", rather than "never having occurred or existed before".
In Germany, photo rights or "Bildrechte" are the copyrights that are attached to the "author" of the photograph and are specified in the "Law for Copyright and similar Protection". These rights deal with rights of reproduction, distribution, modification, attribution, and prohibitions against illegal modification or reproduction. The ownership rights of a picture are treated under the broader "art copyright laws". Furthermore, if a museum or gallery owns a work of art or a photograph, they are permitted to make their own stipulations as to the selling of illustrations and reproductions of their property. This relates to the German legal concept of the right of owner to undisturbed possession. Wolf Vostell said: "Copyrights are like human rights".
A copyfraud is a false copyright claim by an individual or institution with respect to content that is in the public domain. Such claims are unlawful, at least under US and Australian copyright law, because material that is not copyrighted is free for all to use, modify and reproduce. Copyfraud also includes overreaching claims by publishers, museums and others, as where a legitimate copyright owner knowingly, or with constructive knowledge, claims rights beyond what the law allows.
The Web Gallery of Art (WGA) is a virtual art gallery website. It displays historic European visual art, mainly from the Baroque, Gothic and Renaissance periods, available for educational and personal use.
Sweat of the brow is a copyright law doctrine. According to this doctrine, an author gains rights through simple diligence during the creation of a work, such as a database, or a directory. Substantial creativity or "originality" is not required.
Freedom of panorama (FOP) is a provision in the copyright laws of various jurisdictions that permits taking photographs and video footage and creating other images of buildings and sometimes sculptures and other art works which are permanently located in a public place, without infringing on any copyright that may otherwise subsist in such works, and the publishing of such images. Panorama freedom statutes or case law limit the right of the copyright owner to take action for breach of copyright against the creators and distributors of such images. It is an exception to the normal rule that the copyright owner has the exclusive right to authorize the creation and distribution of derivative works.
Free content, libre content, libre information, or free information is any kind of functional work, work of art, or other creative content that meets the definition of a free cultural work, meaning "works or expressions which can be freely studied, applied, copied and/or modified, by anyone, for any purpose." Free content encompasses all works in the public domain and also those copyrighted works whose licenses honor and uphold the definition of free cultural work.
Bridgeman Art Library v. Corel Corp., 36 F. Supp. 2d 191, was a decision by the United States District Court for the Southern District of New York, which ruled that exact photographic copies of public domain images could not be protected by copyright in the United States because the copies lack originality. Even though accurate reproductions might require a great deal of skill, experience, and effort, the key element to determine whether a work is copyrightable under US law is originality.
Wikimedia Commons, or simply Commons, is a wiki-based media repository of free-to-use images, sounds, videos and other media. It is a project of the Wikimedia Foundation.
The public domain (PD) consists of all the creative work to which no exclusive intellectual property rights apply. Those rights may have expired, been forfeited, expressly waived, or may be inapplicable. Because no one holds the exclusive rights, anyone can legally use or reference those works without permission.
The GNU Free Documentation License is a copyleft license for free documentation, designed by the Free Software Foundation (FSF) for the GNU Project. It is similar to the GNU General Public License, giving readers the rights to copy, redistribute, and modify a work and requires all copies and derivatives to be available under the same license. Copies may also be sold commercially, but, if produced in larger quantities, the original document or source code must be made available to the work's recipient.
Between 2011 and 2018, a series of disputes took place about the copyright status of selfies taken by Celebes crested macaques using equipment belonging to the British wildlife photographer David J. Slater. The disputes involved Wikimedia Commons and the blog Techdirt, which have hosted the images following their publication in newspapers in July 2011 over Slater's objections that he holds the copyright, and People for the Ethical Treatment of Animals (PETA), who have argued that the copyright should be assigned to the macaque.
Isambard Kingdom Brunel Standing Before the Launching Chains of the Great Eastern is a photograph taken by Robert Howlett in November 1857. It shows Brunel, the British engineer, during the troubled first attempt to launch the SS Great Eastern, by far the largest ship constructed to that date. Brunel stands before a drum of chain used during the launching of the vessel. He carries his customary cigar case and his boots and trousers are muddy.
{{cite journal}}: Cite journal requires |journal= (help){{cite journal}}: |first= has generic name (help)CS1 maint: multiple names: authors list (link)