Sunday, July 19, 2009

Who owns the images?

The battle over Internet images is a contentious one, which is why the where I post and other "official" news sites are so insistent that we only use the images that we are legally allowed to use. Unfortunately for the (often) innocent user, the definition of "legal" is constantly changing. If there's money to be made, you can be sure that some organization will be demanding it. The battle heated up this week as the National Portrait Gallery sued Wikipedia and PhD student Derrick Coetzee for uploading images from their website. If the museum wins, they will be expanding copyright restrictions, adding additional fees and restricting access, much as other industries like the music industry are doing (or trying to do). If this were an issue of some company copying the images for paintings and posters to be sold for profit, making t-shirts or mugs, I can see their point. But in this case, who is making money from this? As far as I can see, it's not Wikipedia or Mr. Cretzee.

Furthermore, if you want to point at somebody who does steal openly from artists and market the merchandise, look at the pirate Chinese art sites? As far as I know, few organizations are going after these rip off websites which openly steal from living artists and use the artwork to make "genuine oil paintings," mugs, t-shirts and other goodies which they sell via the Internet. In those cases, it's up to the artist to fight for his or her rights. Then there's the case of Shepard Fairey who pleaded guilty last week but because he's a famous, white male artist is being treated with kid gloves.

In the case of the National Portrait Gallery, the images are hundreds of years old. The original maker is long dead and probably didn't make that much money when alive. I don't like rip offs but in this case, who is really being ripped off - the public which can't afford a trip to the UK but would love to see those images or the museum which receives money from the British government, donations from the public and has the right to print postcards, t-shirts, mugs and other merchandise and sell it? Who benefits? Follow the money.

Drawing up battle lines – art gallery takes on Wikipedia

The appearance of some of the world's most famous portraits on a website could create a legal landmark

By Andrew Johnson (Sunday, 19 July 2009)

In her coronation robes, Elizabeth I looks formidable and stately – the Virgin Queen in her pomp, an image to propel rivals into battle. Some 400 years after her portrait was painted, that is precisely what she has done.

Hers is one of more than 3,000 images from the National Portrait Gallery uploaded onto the free internet encyclopedia Wikipedia in April by Seattle-based Derrick Coetzee. The gallery, founded in 1856, responded last week by threatening legal proceedings against the PhD student.

That action unleashed outrage in cyberspace and quickly led to a stand-off between the proponents of free information and cultural institutions wanting to protect one of their few revenue streams – licence fees for reproducing images of their artworks. The row also goes to the heart of an Internet revolution, which does not recognize borders or national laws.

The gallery has instructed the law firm Farrer and Co, which represents the Queen, to sue Mr. Coetzee unless the pictures are removed. They claim that letters to Wikipedia were unanswered. While the portraits are long out of copyright, the photographs are not and, the gallery argues, the digitization process to create high resolution images has cost it around £1m. They are, they say, therefore entitled to a license fee.

Wikipedia, which is supporting Mr Coetzee, argues that the portraits are owned by the public. Moreover, they work with many global cultural institutions, which are glad to have their images widely disseminated. A further complication is that Mr. Coetzee is a US citizen based in America, where copyright laws around images of publicly owned art are different. The gallery points out that Wikipedia's servers are based in the UK and come under the jurisdiction of a UK court. (see correction below).

But Alison Wheeler, an editor and administrator for Wikipedia in the UK, said the Inland Revenue takes the opposite view. "It's a very significant case, and very complicated," she said. "It gets to the heart of the internet. The Inland Revenue argues that if you buy something online, it doesn't matter where the server is located, you still pay tax. So the gallery wants it both ways.

"My view is that our taxes have paid for these, but you can't see them unless you live in London. People have a right to see them. I think the gallery has taken advice from other institutions and decided now is the time to act and settle this matter once and for all. There is no doubt they are taking it seriously."

Yesterday the leading art critic Brian Sewell waded into the row, calling the gallery managers fools. He added: "The National Portrait Gallery has always been managed by fools and this is another example of their folly. I'm on Wikipedia's side. The only thing the gallery has to preserve are the pictures themselves. The images must, in some sense, be public property already."

Media lawyer Duncan Lamont, of Charles Russell solicitors, disagreed. "This is the arrogance of new technology which thinks it can trample over rights and say, 'I'll have this for free'," he said. "Copyright law is very clear. If somebody has taken a great deal of effort to get the lighting right to produce the best picture possible then they should be protected."

Mr. Coetzee said he could not comment, as he is being represented by the Internet freedom campaign group Electronic Frontier Foundation. The group could not be contacted yesterday.

Your article states the following: "The gallery points out that Wikipedia's servers are based in the UK and come under the jurisdiction of a UK court."

This is entirely untrue. None of Wikipedia's servers are based in the United Kingdom, and none of Wikimedia Foundation's operations are conducted in the UK. Please correct this false statement of fact as soon as possible.

--Mike Godwin, General Counsel, Wikimedia Foundation
415-436-9333 x 608

image from: National Portrait Gallery:
Isaac Oliver, Elizabeth I (The Rainbow Portrait) c 1600

1 comment:

Uke Xensen said...

This is terrible news. I don't know about the UK, but my understanding of U.S. copyright law is that reproductions of flat images (paintings, photographs, drawings) cannot be copyrighted because the photography does not add a creative element but is a straight reproduction. I certainly hope the National Portrait Gallery does not prevail.

The Getty Museum, BTW, takes the opposite view. They acknowledge that many of their works are in public domain and post high-resolution photos of many of them on their website for people to use freely (asking only for acknowledgment, which is reasonable).