Friday, June 9, 2023

National Portrait Gallery UK Threatens Wikimedia Foundation With Copyright Lawsuit (Updated)

Derrick Coetzee, an administrator of Wikimedia Commons (the media repository for Wikipedia) is being threatened with a copyright infringement lawsuit by the National Portrait Gallery in London, specifically, their legal counsel, Farrer & Co LLP.

Our client contacted the Wikimedia Foundation in April 2009 to request that the images be removed but the Wikimedia Foundation has refused to do so leaving our client with no option but to commence legal proceedings against you personally through the UK Courts.

According to the National Portrait Gallery, Coatzee downloaded about 3,000 high-resolution images from their site by circumventing their security measures. Coatzee claims the photographs are in the public domain and thus outside of U.S. copyright protection. He may be (somewhat) right under the case of Bridgeman v. Corel, which ruled that exact photographic copies of public domain images could not be protected by copyright because the copies lack originality. However, the National Gallery is located in the UK, with its servers also located in the UK, and Bridgeman was a decision by the United States District Court for the Southern District of New York, making it relevant pretty much only in the Southern District, and to some extent New York State.

What does this mean? Coatzee may be liable under UK law regardless of what Bridgeman v. Corel actually holds.

The National Portrait Gallery is also making additional claims: a violation of its database right; that Coetzee unlawfully circumvented protection methods designed to keep folks like himself from downloading the content; and breach of contract.

Coatzee received an e-mail from The National Portrait Gallery last Friday (July 10th). He has made it available for viewing here.

The National Portrait Gallery has a full web page dedicated to explaining their copyrights in their images as well as ways of acquiring licensing rights here.

Update: July 17, 2009

Donn Zaretsky rightly points out that Bridgeman was originally decided under UK law. Donn highlights the Bridgeman case (pay particular attention to notes 24 and 25).

Does this make sense from a policy perspective? Do we really want the holders of the original works of art (now in the public domain) to withdraw digital and hard-copy images from circulation?

Update #2: July 17, 2009

Not to say we were right on target, but here’s my policy argument, via the BBC, straight from the horse’s mouth:

The British Association of Picture Libraries and Agencies has backed the National Portrait Gallery’s stance.

“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 then for free, they will cease to invest in the digitisation of works, and everyone will be the poorer,” it wrote in an email to its members.


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Comments: 2

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  • I’d say you’ve been right on target! Someone’s paying for these high-res photos to be created, and if they can’t benefit, then indeed “…they will cease to invest in the digitisation of works, and everyone will be the poorer…”

  • MJ Williams

    The British Association’s argument is powerful, but might stoop to a bit of disingenuous fearmongering. It assumes these images are created and available only because they are protected by copyright (or rather by contract via licensing). (And disregards the vast internal purposes of digitization; museums digitize and will continue to digitize their collections separate from an ability to license the resulting images.) At the same time this argument reveals how closely museums and like institutions seek to perpetuate themselves as exclusive sources for images, even of public-domain works. (And ignores that precisely because of digitization, museums need not be the sole source for high-quality imagery of public-domain works.) All to say, the issue is far more complex than one of stark “public interest” pitted against proprietary rights.

    (And I would say more, but am preparing for the bar exam next week!)

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