German Museum Sues Wikimedia Foundation Over Photos Of Public Domain Works Of Art

from the once-public-domain,-always-public-domain dept

The mission of museums and art galleries is generally to spread knowledge and appreciation of beautiful and interesting objects. So it’s rather sad when they start taking legal action against others that want to help them by disseminating images of public domain works of art to a wider audience. This obsession with claiming “ownership” of something as immaterial as the copyright in a photograph of a work of art made centuries ago led the UK National Portrait Gallery (NPG) to threaten Derrick Coetzee, a software developer, when he downloaded images from the NPG and added them to Wikimedia Commons, the media repository for Wikipedia, of which he was an administrator. That was back in 2009, and yet incredibly the same thing is still happening today, as this Wikimedia blog post explains:

On October 28, the Reiss Engelhorn Museum in Mannheim, Germany, served a lawsuit against the Wikimedia Foundation and later against Wikimedia Deutschland, the local German chapter of the global Wikimedia movement. The suit concerns copyright claims related to 17 images of the museum’s public domain works of art, which have been uploaded to Wikimedia Commons. The Wikimedia Foundation and Wikimedia Deutschland are reviewing the suit, and will coordinate a reply by the current deadline in December.

The problem, as usual, is that the museum is claiming that the photographs are new creations, and therefore covered by copyright:

The Reiss Engelhorn Museum asserts that copyright applies to these particular images because the museum hired the photographer who took some of them and it took him time, skill, and effort to take the photos. The Reiss Engelhorn Museum further asserts that because of their copyrights, the images of the artwork cannot be shared with the world through Wikimedia Commons.

As Wikimedia points out:

Even if German copyright law is found to provide some rights over these images, we believe that using those rights to prevent sharing of public domain works runs counter to the mission of the Reiss Engelhorn Museum and the City of Mannheim and impoverishes the cultural heritage of people worldwide.

The disagreement over the use of the NPG’s images back in 2009 gradually fizzled out. The Museums Journal reported in 2012 that:

The National Portrait Gallery (NPG) has made changes to its image licensing to allow free downloads for non-commercial and academic uses.

The change means that more than 53,000 low-resolution images are now available free of charge to non-commercial users through a standard Creative Commons licence.

And more than 87,000 high-resolution images are available for free for academic use through the gallery?s own licence. Users will be invited to give a donation in return for the service.

Meanwhile, high-resolution NPG images are still available on Wikimedia Commons, although Wikipedia notes that these are prudently hosted in the US, where their legal position as works in the public domain seems clearer. It’s really time for other countries to catch up with the US and recognize that photos of public domain works of art are still in the public domain, and that sharing them with the world is something to be praised as helpful, not pursued as harmful.

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Comments on “German Museum Sues Wikimedia Foundation Over Photos Of Public Domain Works Of Art”

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26 Comments
Anonymous Coward says:

So did the photographer make significant artistic choices in Lighting and subject matter, thus failing to meet the commission of documenting the artwork but using the old art to create new work deserving of copyright. Or did they do their best make exact representations of the artworks which I believe is what they were hired for, but would not qualify for a new copyright, at least under US laws. Are the differences in German copyright law significant to render this quick analysis null and void?

Anonymous Coward says:

Re: Re:

” Are the differences in German copyright law significant to render this quick analysis null and void?”

German copyright law doesn’t know a real difference between reproductions i.e. taking a picture of a painting and some random photo with a phone.

In both cases the photographer created a picture by using some techniques e.g composition, lighting, no reflections etc..

At least that is how a court in Berlin saw it earlier this year after a lawyer used this as his argument.

Anonymous Coward says:

Re: Re:

Exactly what I was thinking. If he made faithful copies, as I suspect he did, then it is not a transformative work. Also, they talk about the effort he made to do the work so they want a copyright for the sweat of his brow. But to me, by making a big deal about the amount of work they know they don’t have a real argument.

Vic says:

Take it further

I wonder what would be the copyright status of a photo taken of a photo? Is it a new “creation” as well? Or, since the process is the same, it is not a “new masterpiece”? If only the process has to change (together with related nuances/techniques), then what is a copyright status of a “creative” screen capture of a photo? If someone does that, can he/she claim a new copyright? It’s not much different of photographing… One does have to chose a few aspects of a screen capture process, post-processing, different saving options…

Bruce E (profile) says:

Effort

Presumably all the effort that the photographer went to in taking the photos was to make the photos as close to faithful representations of the actual public domain work. In a sense, while it takes some skill to know what to change, the reality is that finding what is a faithful representation is much more of an algorithmic work than a creative work, and the end result is, by definition, as close to the original work as possible.

That to me is enough to make the resultant work not copyrightable, even if it does involve a lot of skilled labour.

If instead the photographer took the photos from special angles with special lighting and lens choice, then the resultant photo would be a creative work and subject to independent copyright.

Anonymous Coward says:

Double-Bind.

The National Portrait Gallery “reported £334,000 in revenue from reproduction rights in 2011/12. Following costs of £222,000, this left a profit of £112,000”. This income was partly used to digitise the collection, which is only 1/3 of the way through – leaving 200 000 pictures unavailable to the public domain until they can figure out a new way to pay for it.

ltlw0lf (profile) says:

Re: Double-Bind.

This income was partly used to digitise the collection, which is only 1/3 of the way through – leaving 200 000 pictures unavailable to the public domain until they can figure out a new way to pay for it.

It doesn’t sound like any of it was in the public domain to begin with if they are charging people for reproduction rights on the photographs of the public domain works.

What I really don’t understand about this is why NPG doesn’t view this for what it is…advertising. Put the pictures up on wikipedia themselves, with attribution and a free/open license (or public domain,) and it serves as great advertising for folks visiting Germany to stop by and see the real thing in person. Of course, the real reason is that they make way too much mad-money using an unethical loophole in the copyright process to re-lock-up public domain works, but I suspect the museum probably has a big sign everywhere outlawing pictures of the works too.

Gotta lock up that culture, for the sake of everyone, so nobody gets to look at it without paying the toll (troll).

PaulT (profile) says:

Re: Re: Double-Bind.

“It doesn’t sound like any of it was in the public domain to begin with if they are charging people for reproduction rights on the photographs of the public domain works.”

Well, public domain doesn’t mean they can’t charge. It just means that nobody has to pay them, and they can’t stop others from doing the same. If they are able to force people to pay and/or block others from taking and distributing similar photographs, it’s either not public domain, or they’re violating the meaning of that right.

DB (profile) says:

U.S. law might not apply, but it's clearly not eligible for a new copyright

You can’t derive the copyright rules from first principles, or even reading legislation. Instead there is a sometimes-conflicting set of precedents and interpretations that make up the actual rules.

In the U.S. there is a strong principle that “sweat of the brow” has no standing. Working really long and hard at something doesn’t make it more copyright-able.

That’s contrary to most people’s expectation. But upon careful reflection, that’s the only reasonable approach. Because if the people that worked the longest and hardest got on a specific work got the copyright, I can assure you that the people that wrote the digital camera firmware would hold the copyright on every picture.

art guerrilla (profile) says:

Re: U.S. law might not apply, but it's clearly not eligible for a new copyright

maybe contrary to expectations if sheeple never gave it more than five seconds thought…
otherwise, these scenarios should immediately spring to mind: i work for decades, weally, weally hard for an undogly number of hours, but my end product is still not very good, in fact, not ‘worth’ anything, it is so bad…
am i ‘owed’ something from some unknown someones for my ‘effort’ ? ? ?
don’t be daft, punk…
another me in an alternate universe bangs out a pop song in less than an hour which goes mega-viral and ‘earns’ me billions of dollars…
may not be ‘morally’ ‘right’, but sure is right legal-wise…

Anonymous Coward says:

We need a satelite

We need to put up some servers in space to house media that is free for anyone who can get a connection. Too many countries are locking up the work of individuals who wish it to be free. The world benefited when it had a wild country that ignored oppressive regimes who tried to lock up knowledge itself. Today our laws are twisted bastards of their former selves. Works that have been around since my parents were kids are somehow still private and bound in more and more red tape every year. Everyone in the world can create. Computer software and hardware will soon level the playing field to such a degree that pre-teens will be signing mult-million dollar network deals to continue making something they are doing for fun. In ten years we will have millions of content creators from everywhere in the world flooding our waking lives with entertainment infinity better than we can find today.

Anonymous Coward says:

Takedown notice on 4:33 of *silence* !

http://www.youredm.com/2015/11/28/soundcloud-finally-goes-too-far-removes-silent-track-for-copyright-infringement-2/

Now reaching an all time low, Soundcloud has removed a track that is nothing but 4 minutes of pure silence due to “Copyright Infringement” claims.

The title of the track that D.J. Detweiler used is in his upload, John Cage – 4’33, is actually the name of a popular orchestral performance that consists of exactly 4 minutes and 33 seconds of silence.

Jyjon says:

It's about the photographs not the art, idiot.

I am not sure which is sleazier techdirt or the Museum. This isn’t about public domain works of art that were made a long time ago.

This lawsuit is about recent photographs.

I like techdirt, except when you decide to mislead and/or lie about stuff to bolster your arguments about things that annoy your writers.

I am sick of websites going after click-bait articles to draw people in. For me, it makes me leave and not come back. I have no respect and don’t beleive a word on click-bait sites, not worth my time. I guess the techdirt editors prefers to be insignificant, a joke.

nasch (profile) says:

Re: It's about the photographs not the art, idiot.

This isn’t about public domain works of art that were made a long time ago.

This lawsuit is about recent photographs.

I have to agree with A/C. Did you click on an ad by mistake or something, because that is exactly what this article is about. Even the headline spells it out: “German Museum Sues Wikimedia Foundation Over Photos Of Public Domain Works Of Art”.

Bruce says:

Wikimedia are hypocrites

Last time I heard Wikimedia don’t pay taxes in Germany or indeed contribute financially to any of the running costs, including the extensive costs of conservation, tech, photography, staffing etc required, which is where any monies raised in licensing images goes to to ANY cultural institution. These photographs don’t just magically appear courtesy of some photographic fairy. Equally, many museums/galleries are increasingly making material available via CC licences for non-commercial use. Equally, contrary to popular opinion most galleries, archives and museums have to raise most of their funding from other sources, including image licensing. Wikimedia are using these images to drive activity to their site and to make things look pretty. Finally, it might be useful if American’s complaining about this maybe for once take a look beyond their own borders and how their own cultural institutions are funded to consider that different countries organise things in different ways. For example, you may have to pay ‘X’ amount of dollars to got to American galleries but in the UK for example it’s free.

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