Hi
Looking for advice regarding the use of digital images of famous artists works such as Monet and Van Gogh, found on the likes of wikimedia commons & other internet sources.
Now I'm well aware that the copyright has long since expired on such works, however my concern is are the actual digital images/photographs copyrighted in the UK preventing their use to make physical reproductions for commercial purposes and if so is there anybody policing this?
Many thanks for any help you can give.
Steve
Reproduction of famous Art
Hi Steven
You are right to be cautious about the copyright status of digital reproductions of artworks which are themselves out of copyright. And you also need to treat Wikimedia commons statements with similar caution. Wikipedia base their copyright assessments on US copyright law which, generally speaking, does not grant copyright to 'mechanical' copies: the often-quoted case is Bridgeman Art Library v Corel Corp in which it was said that the photographer had added nothing original to the artwork, so had not created a 'new' work.
In theory the same reasoning should apply in the UK, but at present it doesn't. Here, the courts have decided that if the photographer uses sufficient skill in making choices about the use of lighting, and other technical issues such as correctly reproducing the colour of the painting, then this may amount to 'originality'. In Germany or France, it is most likely that they would take the same view as in the USA.
The main problem here in the UK is that the law has not been tested (recently) on this specific subject. The nearest we have to caselaw is AntiquesPortfolio v Rodney Fitch in 2001. which was about photographs of antique furniture where the choices, in terms of positioning, angle, lighting, focus and so on were seen as due to the skill and effort of the photographer. But that is quite an old judgment and today the test is whether the new work represents the spirit or individual creativity of the person who makes it (this is based on the concept of l'oeuvre de l'esprit which is applied in France and Germany). There might have been an opportunity to resolve the matter one way or the other when in 2009 the National Portrait Gallery threatened to sue an editor working on behalf of Wikipedia (NPG v Wikipedia Foundation) but the matter was settled without going to court, so we are no closer to a resolution of this issue.
Naturally, museums and art galleries will put copyright notices on the postcards and posters which they sell, or on images in catalogues or on the internet because there is nothing legally to stop them, and it is a way of protecting their income stream. And as noted above, so far no one has called their bluff by taking the matter to court.
And there is one other factor which may come into play. Under EU law there is something called Publication Right. This operates a little like copyright, when someone first legally publishes a previously unpublished work. It lasts for 25 years from the date of publication. Obviously where the work of art had been on show in a public gallery or museum then this publication right won't apply, but previously undiscovered works or works which had remained in private ownership prior to publication of a photographic reproduction, might well qualify.
For more on this topic, see barrister Francis Davey's analysis of the law at the time of the threatened action against Wikpedia: here. Note that his post was written before a significant judgment of the Court of Justice of the European Union in a case known as Infopaq, where the oeuvre de l'esprit doctrine gained ascendency.
You are right to be cautious about the copyright status of digital reproductions of artworks which are themselves out of copyright. And you also need to treat Wikimedia commons statements with similar caution. Wikipedia base their copyright assessments on US copyright law which, generally speaking, does not grant copyright to 'mechanical' copies: the often-quoted case is Bridgeman Art Library v Corel Corp in which it was said that the photographer had added nothing original to the artwork, so had not created a 'new' work.
In theory the same reasoning should apply in the UK, but at present it doesn't. Here, the courts have decided that if the photographer uses sufficient skill in making choices about the use of lighting, and other technical issues such as correctly reproducing the colour of the painting, then this may amount to 'originality'. In Germany or France, it is most likely that they would take the same view as in the USA.
The main problem here in the UK is that the law has not been tested (recently) on this specific subject. The nearest we have to caselaw is AntiquesPortfolio v Rodney Fitch in 2001. which was about photographs of antique furniture where the choices, in terms of positioning, angle, lighting, focus and so on were seen as due to the skill and effort of the photographer. But that is quite an old judgment and today the test is whether the new work represents the spirit or individual creativity of the person who makes it (this is based on the concept of l'oeuvre de l'esprit which is applied in France and Germany). There might have been an opportunity to resolve the matter one way or the other when in 2009 the National Portrait Gallery threatened to sue an editor working on behalf of Wikipedia (NPG v Wikipedia Foundation) but the matter was settled without going to court, so we are no closer to a resolution of this issue.
Naturally, museums and art galleries will put copyright notices on the postcards and posters which they sell, or on images in catalogues or on the internet because there is nothing legally to stop them, and it is a way of protecting their income stream. And as noted above, so far no one has called their bluff by taking the matter to court.
And there is one other factor which may come into play. Under EU law there is something called Publication Right. This operates a little like copyright, when someone first legally publishes a previously unpublished work. It lasts for 25 years from the date of publication. Obviously where the work of art had been on show in a public gallery or museum then this publication right won't apply, but previously undiscovered works or works which had remained in private ownership prior to publication of a photographic reproduction, might well qualify.
For more on this topic, see barrister Francis Davey's analysis of the law at the time of the threatened action against Wikpedia: here. Note that his post was written before a significant judgment of the Court of Justice of the European Union in a case known as Infopaq, where the oeuvre de l'esprit doctrine gained ascendency.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007
-
Stevenchesters
- New Member
- Posts: 9
- Joined: Thu May 08, 2014 8:10 pm
Hi
Thanks for your advice, its much appreciated.
I just cant help thinking that due to the Bridgeman Art Library v Corel Corps case in the U.S. and the more relaxed nature towards this subject in many of the large European countries that the problem (as the museums may see it) is far too widespread to eradicate and i wonder if due to this that it would even be worthwhile museums trying to stop this in the UK when in so many other countries it is deemed ok by Law?
Many thanks
Steve
Thanks for your advice, its much appreciated.
I just cant help thinking that due to the Bridgeman Art Library v Corel Corps case in the U.S. and the more relaxed nature towards this subject in many of the large European countries that the problem (as the museums may see it) is far too widespread to eradicate and i wonder if due to this that it would even be worthwhile museums trying to stop this in the UK when in so many other countries it is deemed ok by Law?
Many thanks
Steve
Hi Steve,
To be honest I don't think that the UK museums do see this as a problem. At the moment they are getting an income stream from people who buy licences and although this is not a huge amount of money, it more than covers their costs in digitizing the works in the first place. Quite often the marketing of the digitized products is hived off to a third party - for instance the British Library has done a deal with a private company called FindMyPast for them to digitize the BL's stock of old newspapers, which the company then sells downloads of to the public to recoup their costs. They currently claim copyright in these digitized images but it is far from clear that a court would uphold this claim. However it would not be the end of the world for this venture if FindMyPast lost the copyright battle, because they can still control access to their images of newspapers. Indeed their business model is built on selling subscriptions to genealogists and family history researchers (amateur and professional) to whom they provide well-indexed and character-recognised searchable databases of all sorts of official records such as birth, marriage and death records and census information (only up to 1911 at present), and people are prepared to pay for this value-added service.
The way the museums and galleries deal with the issue when challenged, like the National Portrait Gallery and Wikipedia dispute, is to negotiate a settlement whereby the user (in this case Wikipedia) can have full access to medium quality images (good enough for general web use), but the museums retain control over the very high resolution images which, for instance, a book publisher or poster company might require. This arrangement doesn't actually depend on copyright, but more on who controls access the high quality images. And in the mean time if ordinary punters fail to realise that they can download legal but lower resolution versions from Wikimedia, and buy through the NPG website, the gallery isn't going to object to this extra income. You might wonder why Wikipedia might agree to settle on these terms, but in fact they don't need high resolution images, and the NPG's case against them included a claim of database infringement which Wikipedia might well have lost, so they avoided that, along with cost of litigation, by settling.
To be honest I don't think that the UK museums do see this as a problem. At the moment they are getting an income stream from people who buy licences and although this is not a huge amount of money, it more than covers their costs in digitizing the works in the first place. Quite often the marketing of the digitized products is hived off to a third party - for instance the British Library has done a deal with a private company called FindMyPast for them to digitize the BL's stock of old newspapers, which the company then sells downloads of to the public to recoup their costs. They currently claim copyright in these digitized images but it is far from clear that a court would uphold this claim. However it would not be the end of the world for this venture if FindMyPast lost the copyright battle, because they can still control access to their images of newspapers. Indeed their business model is built on selling subscriptions to genealogists and family history researchers (amateur and professional) to whom they provide well-indexed and character-recognised searchable databases of all sorts of official records such as birth, marriage and death records and census information (only up to 1911 at present), and people are prepared to pay for this value-added service.
The way the museums and galleries deal with the issue when challenged, like the National Portrait Gallery and Wikipedia dispute, is to negotiate a settlement whereby the user (in this case Wikipedia) can have full access to medium quality images (good enough for general web use), but the museums retain control over the very high resolution images which, for instance, a book publisher or poster company might require. This arrangement doesn't actually depend on copyright, but more on who controls access the high quality images. And in the mean time if ordinary punters fail to realise that they can download legal but lower resolution versions from Wikimedia, and buy through the NPG website, the gallery isn't going to object to this extra income. You might wonder why Wikipedia might agree to settle on these terms, but in fact they don't need high resolution images, and the NPG's case against them included a claim of database infringement which Wikipedia might well have lost, so they avoided that, along with cost of litigation, by settling.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007