Copyright on 200 year old paintings

Sunday, Jul 12, 2009 7:51 pm
William Barnes

The National Portrait Gallery in London is threatening to sue an American who downloaded high-resolution digital copies of paintings from their website and uploaded them to Wikipedia. The catch: all of the paintings have long been in the public domain. In the States, this would be a problem. American copyright law requires some “spark” of creativity on the part of the person claiming copyright. It’s not really hard to demonstrate such a spark, but a simple scan of a public domain painting certainly would not qualify. But under UK copyright law, the standard is “sweat of the brow”. The amount of labour and skill it takes to faithfully reproduce the paintings would be enough to grant copyright in a new work (the digital photos). So of course the NPG wish to sue in the UK, arguing that the NPG servers are based in the UK and that Wikipedia is targeted at British users too. (Disclaimer: jurisdiction is not my strongest point.) On the first argument, I think they’re wrong. The guy had every right to download the images from the UK servers and following that everything he did was done in the States (where the copyright is not recognized). You can’t sue somebody just because what they did in another country would have infringed on a right had they done it in your own. On the second, I kind of think they’re grasping. By that logic, they could sue the guy in any country they wanted. There’s a contractual argument as well, but it’s not detailed well in the demand letter. It appears to be based on an implied contract because there was a “License this image” link on the website.

There’s something annoying to me about government-funded organizations that archive public domain work acting to keep that work out of the public domain. I understand that they go to a lot of expense to scan these images, but isn’t the whole point of museums to share culture?

  • http://en-gb.facebook.com/people/Padraic-Ryan/90400293 Padraic Ryan

    As far as I know, it's not clear whether Canada follows the US or the UK on this issue (assuming it's actually settled law in the US). I've actually been in correspondence with Library and Archives Canada about the copyright status of their PD images used on Wikipedia, and they seem to be under the same impression as the NPG (and like the NPG, make a lot of money off licensing PD works).

    (sorry for the double-post, I thought anyone who came across this post might want to read my comment)

  • http://www.webarnes.ca Billy Barnes

    The standard in Canada is, I believe, “skill and judgement”. It's supposed to be a middle ground between the British and American positions (though it sounds more like the American to me). I couldn't really guess how Canadian courts would go on these scans. For the most part, they're just mechanical reproductions. The people doing the scanning might be very skilled, but the very nature of their skill lies in *not* adding anything. On the other hand, maybe they do some restorative work at the same time and that requires judgement, who knows? I wonder if anyone has ever considered whether someone doing a restoration gains copyright in the “new” work.

  • http://en-gb.facebook.com/people/Padraic-Ryan/90400293 Padraic Ryan

    As far as I know, it's not clear whether Canada follows the US or the UK on this issue (assuming it's actually settled law in the US). I've actually been in correspondence with Library and Archives Canada about the copyright status of their PD images used on Wikipedia, and they seem to be under the same impression as the NPG (and like the NPG, make a lot of money off licensing PD works).

    (sorry for the double-post, I thought anyone who came across this post might want to read my comment)

  • http://www.webarnes.ca Billy Barnes

    The standard in Canada is, I believe, “skill and judgement”. It's supposed to be a middle ground between the British and American positions (though it sounds more like the American to me). I couldn't really guess how Canadian courts would go on these scans. For the most part, they're just mechanical reproductions. The people doing the scanning might be very skilled, but the very nature of their skill lies in *not* adding anything. On the other hand, maybe they do some restorative work at the same time and that requires judgement, who knows? I wonder if anyone has ever considered whether someone doing a restoration gains copyright in the “new” work.

  • http://en-gb.facebook.com/people/Padraic-Ryan/90400293 Padraic Ryan

    As far as I know, it's not clear whether Canada follows the US or the UK on this issue (assuming it's actually settled law in the US). I've actually been in correspondence with Library and Archives Canada about the copyright status of their PD images used on Wikipedia, and they seem to be under the same impression as the NPG (and like the NPG, make a lot of money off licensing PD works).

    (sorry for the double-post, I thought anyone who came across this post might want to read my comment)

  • http://www.webarnes.ca Billy Barnes

    The standard in Canada is, I believe, “skill and judgement”. It's supposed to be a middle ground between the British and American positions (though it sounds more like the American to me). I couldn't really guess how Canadian courts would go on these scans. For the most part, they're just mechanical reproductions. The people doing the scanning might be very skilled, but the very nature of their skill lies in *not* adding anything. On the other hand, maybe they do some restorative work at the same time and that requires judgement, who knows? I wonder if anyone has ever considered whether someone doing a restoration gains copyright in the “new” work.

  • http://en-gb.facebook.com/people/Padraic-Ryan/90400293 Padraic Ryan

    As far as I know, it's not clear whether Canada follows the US or the UK on this issue (assuming it's actually settled law in the US). I've actually been in correspondence with Library and Archives Canada about the copyright status of their PD images used on Wikipedia, and they seem to be under the same impression as the NPG (and like the NPG, make a lot of money off licensing PD works).

    (sorry for the double-post, I thought anyone who came across this post might want to read my comment)

  • http://www.webarnes.ca Billy Barnes

    The standard in Canada is, I believe, “skill and judgement”. It's supposed to be a middle ground between the British and American positions (though it sounds more like the American to me). I couldn't really guess how Canadian courts would go on these scans. For the most part, they're just mechanical reproductions. The people doing the scanning might be very skilled, but the very nature of their skill lies in *not* adding anything. On the other hand, maybe they do some restorative work at the same time and that requires judgement, who knows? I wonder if anyone has ever considered whether someone doing a restoration gains copyright in the “new” work.

  • hillary

    The Berne Convention Art2 is clear about forgery. One needs permission to copy!

  • Billy

    I do not see the word forgery in article 2 of the Berne Convention. However, assuming you are correct: (1) is a digital photo capable of being “forged”, and (2) whose permission?

    It seems to me that forgery implies some kind of lie about the provenance of an item. Copying is not even necessary. A fake Picasso is a forgery whether it is a copy of a Picasso or just claimed to be his. A counterfeit Gucci purse is a forgery. A downloaded MP3 is not a forgery. A copy of a digital image is not a forgery. A digital image of a 200 year old painting is not a forgery. Forgery is a concept more relevant to fraud than copyright.

    If the copyright has long since expired, whose permission do you need to get? The artist’s? The current owner?

    The issue was that the gallery was claiming copyright in digital reproductions of old paintings. Their claim was that they had copyright in their scans, even though the scans were purposefully identical to public domain works. When a publisher converts Tom Sawyer into an ebook, do they get a renewed copyright?