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The Paintings Belong to Everyone, But the Photos Don't

By July 17, 2009

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Do high-resolution photos of paintings belong to the museum that took them or do any photos of any paintings no longer in copyright belong to anyone? This difference in USA and UK copyright laws, and the loss of revenue such photos can generate, are at the heart of the conflict between the National Portrait Gallery in London and Wikipedia that has escalated in recent days. Read BBC news report and Guardian for the details. (Note: the photos in question aren't small postcard-sized ones but the detailed ones used for the "Zoomify" option on the gallery website.)

What I don't understand is where people expect galleries without an entry fee to raise revenue to pay for maintaining the exhibition spaces and buy new works. You can only sell so many cups of coffee and so many postcards. Viewing paintings in real life rather than reproduction is a privilege to be protected, not a right that will somehow magically always exist. And, for working artists, galleries that buy paintings from living artists not just dead ones are particularly something to be protected.

See Also:
The Art Law Blog's View
Clancco's View
About.com Art History's View

Comments

July 17, 2009 at 2:55 pm
(1) Sandra says:

It’s ridiculous to compare something that someone did intentionally – donating images – to having someone else take images and post them publicly without permission. It’s like saying that because some artists feel that it’s beneficial to let people download their music for free online, all music is now fair game.

It would be different if I took a (low-res) snapshot of a painting while I was in the museum and then they claimed copyright. If photography is allowed, I should be able to show that picture to my friends if I want.

But when it’s their own work making the photographs and putting those photos online, of course they should have the final say over where and how those photos can be used.

July 17, 2009 at 3:16 pm
(2) rain says:

I wonder why Wikipedia should be immune to copyright laws?? let them pay for or link to rights-reserved photos just like the rest of us!

July 18, 2009 at 1:29 am
(3) Gregory Maxwell says:

Rain, what is unreasonable is that the gallery would be able to subvert the natural order of copyright: A work is created, the *author* enjoys a monopoly for a while, then the work returns to the public.

By locking up the works and claiming a copyright on the only copies they allow to exist the NPG is attempting to pervert the the very idea of copyright.

Fortunately the US federal courts have already considered this issue with the Bridgeman Art Library and decided that both the UK and US law does not actually permit this kind of loophole. In both the US and UK only original works can gain a copyright, and it was determined that uncreative and exacting photographic duplicates don’t count. Unfortunately the matter has not been heard in the UK so it can still be argued to be ambiguous there.

Marion’s argument about funding is an interesting one. Over the last several years the NPG has collected about fifteen thousand pounds per year from online licensing (presumably a good portion of that is from its extensive commissions and collections of modern works which is still copyrighted, which were mentioned above). At the same time the museum earned several hundreds of thousands of pounds per year from food sales and from renting space out. In grand total the NPG’s budget is around 16 million pounds per year. The online revenue is simply insignificant.

At the same time Wikpedia readers per month is approaching 300 million. Thats 300 million people who would have less access and less potential enjoyment of our collective heritage as humans.

Museums should be supported and well funded. But they should lock up our shared culture behind copyright, especially for such poor returns.

July 18, 2009 at 2:46 am
(4) Josh says:

Gregory, the NPG aren’t saying Wikipedia can’t have any photos of their paintings, what they’re saying is that they shouldn’t be the highres ones used for the zoomify function on the NPG website.

And if photos of out of copyright material can’t be copyrighted, then where does that leave photographers?

As for being a small % of income — every revenue stream is important, not how much it brings in. In a recession less sales will happen all round, less rentals, etc. etc.

July 18, 2009 at 3:17 am
(5) Kate says:

This is very interesting and raises some issues that I have not considered before. The role of museums and galleries in this era of new generation technologies has to be considered. As does the question of under what mandate does Wikipedia operate? Many of the issues that we face are about situations that would have been inconceivable just a few years ago. I shall read with interest what others have to say.

July 18, 2009 at 5:54 am
(6) Raj says:

On the NPG website a pack of 12 postcards = £5.99. £15,000 divided £5.99 = more than 30,000 postcards to be sold (minus the cost of printing them, the shop space for stocking them, the staff cost for ensuring they’re on display, and theft). Say every visitor buys 3 postcards, that’s 20,000 visitors you’re needing to equal the money from photo rights (which the NPG says is far more anyway). Plus there are the jobs linked to the digital imagery aspect which get threatened by this too. It’s far too easy to say we’ve the right to this. Where’s the responsibility that comes with rights?!!!!

July 18, 2009 at 6:53 am
(7) Daniel Kinzler says:

@Josh: you asked: “if photos of out of copyright material can’t be copyrighted, then where does that leave photographers?”

In case of *reproductive* photography, the photographer simply provides, and charges for, a service. On the other hand, a photographer creating a new *original* work would be able to license exclusive rights on that.

Copyright is about the protection of original, creative work. Reproduction is, per definition, nither creative nor original.

July 18, 2009 at 6:59 am
(8) Raj says:

It could be argued that taking a photo of a landscape is just reproduction, you don’t do anything to the light or elements in the scene, you just push the shutter.

Reproducing a painting in a high-res photo to the level where the grains in the canvas can be is a skilled task.

July 18, 2009 at 8:13 am
(9) Beth says:

As an artist and webmaster, lower resolution images make sense to be allowed to be used. I put images of my own artwork online, knowing that others cannot take the images for illicit reproduction because they are low rex.

That said, high rez images are a serious potential stream of income. Reproduction prints can be made from these — by anyone with access to the images.

I believe the question is less of “should images be released to public use” and more “what quality of images are available to public use”.

Put it in literary terms: a short quote of someone else’s writing is allowable with no further thought. But you can’t quote half a page without permission.

July 18, 2009 at 2:36 pm
(10) Nancy says:

What about the part of the Guardian article that says the gentleman who uploaded the photos hacked his way past the NPG’s software, which was designed to prevent access to high-res complete images? Does this mean that hacking is suddenly legal, because photos are involved? I’m sure we’d all feel differently if Mr. Coetzee had uploaded images of our bank statements, claiming that only the original printed statements were protected under U.S. law.

This, to me, isn’t about how many postcards the NPG sells. It’s about licensing vs. fair use vs. theft – as a writer and photographer, I know all too well that anything beyond fair use – limited quotations, low-res images – takes money right out of my pocket and puts it into someone else’s. I have to side with the NPG on this one.

July 18, 2009 at 6:43 pm
(11) lilburne says:

There is an awful lot of rubbish being pushed by senior wikipedians like Gregory Maxwell.

http://commons.wikimedia.org/wiki/User:Gmaxwell

in support of their theif,.

Not least of which is the suggestion that the NPG is going to lock away the portraits and throw away the key. The images were available on their site as witnessed by the fact that 3000 of them were taken and uploaded to wikipedia.

As we all know a 500px image is more than enough for most website use, or to illustrate an article. The BBC website rarely uses anything bigger than 250px. The 1000 px size images that the NPG make available are even good enough for newspaper printing.

However, one should note that ion the wiki mailing lists Mr Maxwell thinks that the 3000 px images his associate stole aren’t nearly big enough:

“It’s also worth noting that the large image we have are actually
small… “

July 18, 2009 at 8:10 pm
(12) HaeB says:

Josh: You are wrong in the assumption that the NPG only objected once the higher resolution images were uploaded. They also have tried to get lower resolution images deleted on Wikipedia for years, at least since 2005. And if they had made a convincing argument that these images were copyrighted in the U.S., these images would certainly have been deleted. (Wikimedia adminstrators clean the site of numerous copyright violations every day, working many hours to protect the rights of copyright holders.)

But the Wikimedia Commons has chosen to rely on Bridgeman v Corel instead, the generally accepted US court decision on the matter.

July 18, 2009 at 8:26 pm
(13) HaeB says:

Nancy: Don’t believe NPG’s spin that the software was “designed to prevent access to high-res complete images”. The maker of the software explicitly denies that claim by the NPG:

“we provide Zoomify as a viewing solution and not an image security system”

“Our recommendation to photographers and others whose images are their products is that they select some images for high-resolution display and/or as a marketing tool. They can then protect the majority of their collection by not presenting it at full resolution or as complete works. It is important to clarify that many customers – famous museums for example – are using our solution and the general consensus seems to be that they are more worried about making their collections accessible than about protecting them from copying. Never to have any of their content on the web would also imply never selling posters (which can be photocopied or scanned very easily).”

In other words, among Zoomify’s customers the NPG’s attitude is pretty much an extreme.

July 18, 2009 at 10:08 pm
(14) lilburne says:

Another wikipedian pops up spreading falsehoods. The Copyright, Designs and Patents Act 1988 says

“technological measures” are any technology, device or component which is designed, in the normal course of its operation, to protect a copyright work other than a computer programm

In the normal course of operation of zoomify one does not get access to the full image and as such is an effective measure. Just like the locks on my front door, which in their normal course of operation keep people out. However, they won’t stop a determined thief from picking the lock. Zoomify simply point out that a determined scrot may do the same with their software.

July 18, 2009 at 10:36 pm
(15) BT says:

@ Raj in response to “It could be argued that taking a photo of a landscape is just reproduction”: This issue revolves around the exacting reproduction of two-dimensional works of art, the copyright of which has clearly passed into the public domain many years after the death of the artist.

While I can sympathize with the desire to make as much money as possible, I find it repugnant that a “cultural institution” would treat works hundreds of years old as a cash cow for which they can claim total right, while preventing anyone else from making their own reproductions. If the government of Cambodia declared that nobody could take pictures of or video the stone murals at Angkor Wat or the Vatican did the same with the ceiling of the Sistine Chapel, I think more people would see this as the attempt to wall off on cultural treasures that belong to the world heritage and then put up a toll booth that it is.

July 19, 2009 at 2:23 am
(16) Raj says:

BT, The NPG have offered lower resolution photos for public domain, the objection is to someone hacking their website to copy off the high res photos. If Wikipedia’s desire was only for photos, then why isn’t it prepared to take the smaller ones which are more suitable for web viewing as single photos anyway (especially to people on dialup of which there are many, even in the USA).

July 19, 2009 at 2:37 am
(17) IT says:

@BT Who do you think should fund such galleries then? Taxpayers? It doesnot take long to notice few visitors make a donation for free entry.

July 19, 2009 at 2:42 am
(18) Theba says:

Why does Wikip think its the worlds moral guardian of access? it’s colonialization mentality to want to have everything and charity mentality to want to give everyone everything. and even more so as it applies American law to other countries.

July 19, 2009 at 3:40 am
(19) Josh says:

A quote from Xconomy blog: Wikipedia works as a free global encyclopedia because it has found a way around the “free rider” problem. That’s an economic situation in which the majority of users pay nothing and consume far more than their fair share of a resource, while a minority do all the work and feel insufficently rewarded.”

July 19, 2009 at 8:03 am
(20) Legal observation says:

This would all be fine, if UK law agreed with the uninformed views here.

Unfortunately there is case law from the House of Lords (Coca-Cola Go), the Privy Council (Interlego v Tyco Industries) and other cases (Rose Plastics v. William Beckett), all UK cases, that disagree.

People should check legal sources for themselves rather than naively buy into one sides’ claim that UK law does or doesn’t say anything here.

July 19, 2009 at 9:48 am
(21) Physchim62 says:

Legal observation makes a good point: indeed the list is far longer than the one s/he quotes!

UK law on the originally of photographs is basically unchanged since the 1883 case of Nottage v. Jackson: in the words of Cotton LJ, “‘author’ involves originating, making, producing, as the inventive or master mind, the thing which is to be protected, whether it be a drawing, or a painting, or a photograph.”

One could also cite the relevant EU law, Directive 93/98/EEC: “Photographs which are original in the sense that they are the author’s own intellectual creation shall be protected [by copyright]. No other criteria shall be applied to determine their eligibility for protection.”

The NPG simply has no legal basis for their claim. Hopefully their obnoxious scam will be exposed once and for as what it is: an illegal restraint on trade and an embezzlement of the culture that they have in their care.

July 19, 2009 at 9:52 am
(22) IT says:

@Physchim62 So who pays for the high res images to be created, and how is this money to be recouped? Don’t say “the government” because that’s just poor old suckers working 9 to 5 jobs who’re paying for it then.

July 19, 2009 at 10:22 am
(23) Physchim62 says:

@IT, digitalization would be paid for from the funds which support the NPG’s statutory duties, as digitalization is undoubtedly a part of those duties.

The ironic thing is that, the more these images are used, the more people will regard them as important, and the more likely the NPG is to receive private and corporate donations. Instead, the NPG spends the money on digitalization, then locks the images away so that virtually nobody can (economically) use them, despite the fact that the NPG has no legal claim to them whatsoever.

If I came up to you in the street and threatened to beat you up unless you gave me twenty quid, I would rightly serve time in prison. Yet that is exactly what the NPG is trying to do with its fraudulent copyright claims. I wouldn’t wish prison on anyone at the NPG, but I think it would be appropriate to see some dismissals from their staff as a result of this fiasco.

July 19, 2009 at 10:32 am
(24) Physchim62 says:

I find it particularly sad the position that “nobody will do this if there’s no monetary gain”. If that we really the case, then neither Wikimedia nor the National Portrait Gallery would ever have come into existence (nor this blog, for that matter).

I think the real reason behind the NPG’s intransigence is that licensing the fake copyright on these images provides somebody with a job, and that person doesn’t want to lose his job. It’s worse than a shame that he has convinced his superiors to risk a huge sum of money – easily more money than that individual has made for his employers during his entire employment – on trying to protect the illegal scam.

July 19, 2009 at 10:46 am
(25) IT says:

@Physchim62 HUH? Of course there’s monetary gain behind this blog. About.com pays its staff and writers, they don’t do it for free. And Wikimedia’s finances aren’t exactly open and forthcoming, as Gregory Kohs repeated requests for info show. And nevermind any copyright issues; the photos weren’t just openly available to be saved, you have to get through coding. That’s morally dubious for starters.

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