At least 500 images will have to be deleted from the National Portrait Gallery

[Mike Godwin-3]

Klaus Graf writes:

> For years there was no doubt that Bridgeman v. Corel was accepted on
> Commons. It is said that British courts would'nt accept Bridgeman v.
> Corel but there is no proof for this. It is true, in the contrary,
> that the NY US judge has diligently discussed UK law with the result
> that also according UK copyright law mere reproductions are NOT
> protected.
>
> Bridgeman vs. Corel is an essential point for Commons and for all
> Wikimedia projects. This is not an issue some Commons pseudo-experts
> could decide. Before 500+ pictures of PUBLIC DOMAIN PAINTINGS are to
> be deleted the board of the Foundation should decide if Moeller's
> quote above is still its position.

I think it's still the Foundation's position, Klaus. We've gotten the  
occasional note from the National Portrait Gallery in the UK,  
asserting copyrights in reproductions of very old paintings, but to my  
knowledge we've never actually faced anything like legal action or a  
DMCA takedown notice regarding such images.  I think the National  
Portrait Gallery may be afraid to put their claims to the test in  
actual litigation, since doing so would be a straightforward assault  
on the public domain, and could raise international enforcement issues  
besides.  While I respect the Commons community's engagement in the  
issue of keeping Commons clear from copyright problems, it should be  
stressed that it is unclear whether the Foundation currently has any  
legal problems as a result of the public-domain paintings in question  
appearing on Commons.


--Mike Godwin
General Counsel
Wikimedia Foundation





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[Michael Maggs]

Mike

Could I just check, please, whether you were just replying to an
out-of-the-blue email from Klaus or whether you have replied after a
review of

[[Commons:Deletion requests/National Portrait Gallery images (first
set)]] where your email has now been publicly quoted.

The policy we at Commons have been working to is that images must be
free in both the US and in the source country.  I assume that is still
the WMF general position?

The problem in the UK is that - contrary to what Klaus said - there is
now a binding Court of Appeal judgement (Hyperion Records v Sawkin)
which makes it very clear that the Bridgeman principle will _not _stand
up in a UK court.  You can find details of the UK case law at [[Commons
talk:When to use the PD-Art tag#Reply to call for revision
<http://commons.wikimedia.org/wiki/Commons_talk:When_to_use_the_PD-Art_tag#Reply_to_call_for_revision>
]].

If it's official WMF policy that Bridgeman is assumed to apply in all
countries, even in countries where there is jursiprudence to say that it
will not, a formal statement to that effect would be most helpful.  It
will mean we can keep the NPG images, and quite a few others, and we can
also dismantle much of the policy we have put in place to ensure that
this issue is looked at on a country-by-country basis. We can for
example delete the policy page [[Commons:When to use the PD-Art tag]]
almost entirely.
<http://commons.wikimedia.org/wiki/Commons_talk:When_to_use_the_PD-Art_tag#Reply_to_call_for_revision>

regards

Michael






Mike Godwin wrote:

> Klaus Graf writes:
>
>  
>> For years there was no doubt that Bridgeman v. Corel was accepted on
>> Commons. It is said that British courts would'nt accept Bridgeman v.
>> Corel but there is no proof for this. It is true, in the contrary,
>> that the NY US judge has diligently discussed UK law with the result
>> that also according UK copyright law mere reproductions are NOT
>> protected.
>>
>> Bridgeman vs. Corel is an essential point for Commons and for all
>> Wikimedia projects. This is not an issue some Commons pseudo-experts
>> could decide. Before 500+ pictures of PUBLIC DOMAIN PAINTINGS are to
>> be deleted the board of the Foundation should decide if Moeller's
>> quote above is still its position.
>>    
>
> I think it's still the Foundation's position, Klaus. We've gotten the  
> occasional note from the National Portrait Gallery in the UK,  
> asserting copyrights in reproductions of very old paintings, but to my  
> knowledge we've never actually faced anything like legal action or a  
> DMCA takedown notice regarding such images.  I think the National  
> Portrait Gallery may be afraid to put their claims to the test in  
> actual litigation, since doing so would be a straightforward assault  
> on the public domain, and could raise international enforcement issues  
> besides.  While I respect the Commons community's engagement in the  
> issue of keeping Commons clear from copyright problems, it should be  
> stressed that it is unclear whether the Foundation currently has any  
> legal problems as a result of the public-domain paintings in question  
> appearing on Commons.
>
>
> --Mike Godwin
> General Counsel
> Wikimedia Foundation
>
>
>
>
>
> _______________________________________________
> foundation-l mailing list
> foundation-l@...
> Unsubscribe: https://lists.wikimedia.org/mailman/listinfo/foundation-l
>
>
>  

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[Jimmy Wales]

Speaking only for myself, not the Board, and speaking only in my
traditional capacity, I can say that I very strongly support keeping
these images.  Public domain paintings are public domain.  This is not
about borderline cases around exact dates.  This is OLD stuff.

I call on the National Portrait Gallery to release these images under a
free license.  Barring that, I propose that we ignore any illegitimate
and unjust false claims to copyright in these things, unless and until
they are willing to take us to court.

Mike Godwin and the Wikimedia Foundation have the final say, of course,
and I respect that.  But I hope we encourage courage in this area.

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[John Vandenberg]

On Thu, Jul 24, 2008 at 6:18 AM, Michael Maggs <Michael@...> wrote:

> Mike
>
> Could I just check, please, whether you were just replying to an
> out-of-the-blue email from Klaus or whether you have replied after a
> review of
>
> [[Commons:Deletion requests/National Portrait Gallery images (first
> set)]] where your email has now been publicly quoted.
>
> The policy we at Commons have been working to is that images must be
> free in both the US and in the source country.  I assume that is still
> the WMF general position?

I sincerely hope this will not be the general position of WMF _ever_.
English Wikipedia for one accepts PD-1923 content even if it isnt PD
elsewhere, as does English Wikisource where the images are highly
relevant to the project mission.

I firmly hope the WMF will continue to define its copyright policy in
a precise manner where the cases are simple (obvious violations are
not acceptable), and sensibly where the situations are not so simple.
The definition of "free content" is quite different to "public
domain", despite considerable overlap in the clear cases.  It is silly
to think that everything that even the most conservative person calls
public domain can be backed by laws in two jurisdictions, and it is
ludicrous to have WMF force projects to remove content because it
might not be considered PD in the future, based on a presumed court
case that hasn't yet happened, or due to lack of information that is
unlikely to come to light.

For example, "This Land" by Woody Guthrie only became clearly PD after
people pulled out all stops to prove it was, spurred on by a copyright
case.  It was however PD all along.

http://w2.eff.org/legal/cases/JibJab_v_Ludlow/
http://en.wikisource.org/wiki/10_of_the_Woody_Guthrie_songs

--
John Vandenberg

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[Magnus Manske-2]

On Thu, Jul 24, 2008 at 12:21 AM, Jimmy Wales <jwales@...> wrote:

> Speaking only for myself, not the Board, and speaking only in my
> traditional capacity, I can say that I very strongly support keeping
> these images.  Public domain paintings are public domain.  This is not
> about borderline cases around exact dates.  This is OLD stuff.
>
> I call on the National Portrait Gallery to release these images under a
> free license.  Barring that, I propose that we ignore any illegitimate
> and unjust false claims to copyright in these things, unless and until
> they are willing to take us to court.
>
> Mike Godwin and the Wikimedia Foundation have the final say, of course,
> and I respect that.  But I hope we encourage courage in this area.

Yes! Now if the Foundation could set up a page clarifying the official
position on this, we could just point to it in the future.

Magnus

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[Marco Chiesa]

On Thu, Jul 24, 2008 at 9:48 AM, Magnus Manske <magnusmanske@...>
wrote:

> On Thu, Jul 24, 2008 at 12:21 AM, Jimmy Wales <jwales@...> wrote:
> > Speaking only for myself, not the Board, and speaking only in my
> > traditional capacity, I can say that I very strongly support keeping
> > these images.  Public domain paintings are public domain.  This is not
> > about borderline cases around exact dates.  This is OLD stuff.
> >
> > I call on the National Portrait Gallery to release these images under a
> > free license.  Barring that, I propose that we ignore any illegitimate
> > and unjust false claims to copyright in these things, unless and until
> > they are willing to take us to court.
> >
> > Mike Godwin and the Wikimedia Foundation have the final say, of course,
> > and I respect that.  But I hope we encourage courage in this area.
>
> Yes! Now if the Foundation could set up a page clarifying the official
> position on this, we could just point to it in the future.
>
> Magnus
>
>
>

Maybe I'm being naive, but how much such a decision would be UK-specific?
Particularly in the sense that the images are published in the US? Italy has
a similar problem, although we have the complication that the Law assigns a
sort of copyright to the museum, even if the work of art is photographed by
a random visitor. The body governing the museums in Florence sent us a take
down notice from it.wikipedia a few years ago, and probably some images are
still on commons (but cannot be used on it.wp).
Regarding the NPG images, I think the main problem would be that a UK reuser
would infringe the NPG copyright, while she reads that those images are PD;
the NPG may decide that suing Wikipedia is not a great idea, but suing some
British student that puts up his own website may be; transiting through the
US to remove copyright appears to me as a kind of money laundering...

Cruccone
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[Jussi-Ville Heiskanen]

Magnus Manske wrote:

> On Thu, Jul 24, 2008 at 12:21 AM, Jimmy Wales <jwales@...> wrote:
>  
>> Speaking only for myself, not the Board, and speaking only in my
>> traditional capacity, I can say that I very strongly support keeping
>> these images.  Public domain paintings are public domain.  This is not
>> about borderline cases around exact dates.  This is OLD stuff.
>>
>> I call on the National Portrait Gallery to release these images under a
>> free license.  Barring that, I propose that we ignore any illegitimate
>> and unjust false claims to copyright in these things, unless and until
>> they are willing to take us to court.
>>
>> Mike Godwin and the Wikimedia Foundation have the final say, of course,
>> and I respect that.  But I hope we encourage courage in this area.
>>    
>
> Yes! Now if the Foundation could set up a page clarifying the official
> position on this, we could just point to it in the future.
>
> Magnus
>
> _______________________________________________
>  

My personal view is that this situation is best summed
up in an allegorical fashion. So let me tell a story from
when I was 3 to 4 years old:

I was enjoying a hot sumer at the cottage of a family
who were very good friends of my family, way up in the
North of Finland.

So one morning as I was walking down the path to the
lake, skipping from stone to stone on the path, I stepped
on a stone that was in fact a frog.

The wet and soft and slippery skin of the little amphibian
felt very startling and I was naturally caused mild
apprehension by its suddenness.

As it leaped away though, my parents and the rest of the
onlookers explained to me how to approach the situation.
Even though I felt more than a tinge of apprehension from
the unpleasant sensation caused in such an unexpected
fashion, the frog surely must have been much much much
more scared than I.

And this I feel is how we should view the National Portrait
Gallery. Or at least I am lead to believe by the views that
have been expressed, that they are much more afraid of us
than we are of them.

Yours,

Jussi-Ville Heiskanen


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[Nemo_bis]

Marco Chiesa:
>the Law assigns a
>sort of copyright to the museum, even if the work of art is photographed by
>a random visitor.

And even against the panorama freedom...

>Regarding the NPG images, I think the main problem would be that a UK reuser
>would infringe the NPG copyright, while she reads that those images are PD;
>the NPG may decide that suing Wikipedia is not a great idea, but suing some
>British student that puts up his own website may be; transiting through the
>US to remove copyright appears to me as a kind of money laundering...

In fact somebody said that we should add «A template "don't use in... because..."»[1].

Nemo

[1] http://commons.wikimedia.org/w/index.php?title=Commons:Deletion_requests/National_Portrait_Gallery_images_%28first_set%29&diff=12989871&oldid=12989826
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[Henning Schlottmann]

Michael Maggs wrote:
> The problem in the UK is that - contrary to what Klaus said - there is
> now a binding Court of Appeal judgement (Hyperion Records v Sawkin)
> which makes it very clear that the Bridgeman principle will _not _stand
> up in a UK court.  You can find details of the UK case law at [[Commons
> talk:When to use the PD-Art tag#Reply to call for revision
> <http://commons.wikimedia.org/wiki/Commons_talk:When_to_use_the_PD-Art_tag#Reply_to_call_for_revision>
> ]].

I strongly deny that Sawkins v Hyperion Records Ltd is by any means
authoritative to the question of reproductions of 2D works of art. The
infringed creative rework in that case were so vastly greater than a
mere reproduction, that I can't believe you even bring it up in our
context.

The question of originality in the reproduction of 2D images under UK
law is quoting Michalos (see
http://commons.wikimedia.org/wiki/Commons_talk:When_to_use_the_PD-Art_tag)
  "presently an open question in English law." On that page I pointed
out, why I believe we should stand on the side of freedom and public
domain and cite a UK legal scholar who thinks so as well and has strong
arguments.

Ciao Henning


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