Swedish Court: Wikipedia Hosting Photos Of Public Artwork Is Copyright Infringement For Some Reason

from the art-thou-crazy? dept

Wikimedia has, of course, a somewhat tortured history when it comes to copyright and artwork that appears on Wikipedia. Whether it's political logos, German museum art, and this goddamned monkey, Wikipedia often finds itself targeted over uploaded photos of artwork and copyright claims that too often appear to be either baseless or at cross-purposes with the world of art more generally. When you mix all of this up with a strange sense of entitlement by those who produce public art over how that art is photographed, the result is a Swedish court declaring that Wikipedia has violated copyright by hosting pictures of public Swedish statues.

The controversial judgement is a victory for the Visual Copyright Society in Sweden (Bildupphovsrätt i Sverige - BUS), which sued Wikimedia at Stockholm District Court for publishing photos of Swedish public sculptures and other public artworks without first getting permission from the artists.

“We are naturally very disappointed,” Wikimedia's Swedish operations manager Anna Troberg told The Local after the supreme court gave its guidance to the district court. “We view this as an anachronistic and restrictive interpretation of copyright laws. It also runs counter to recommendations from the European Court of Human Rights.”
It also blatantly strains the boundries of common sense. The statues in this case are presented in Sweden in public, by my reading were commissioned as public works by artists who were paid for their efforts with taxpayer dollars, and the images for which were uploaded to Wikipedia by individual administrators for Wikipedia articles. The Swedish court appears to have twisted itself into a pretzel in order to generate this ruling.
In its judgement the supreme court affirmed that Swedish copyright law does permit members of the public to take pictures of public artworks. But, the court said, “it is different when it’s a database where artworks are made available to the public to an unlimited extent without copyright-holders receiving any remuneration. A database of this kind can be deemed to have a commercial value that is not inconsiderable,” the supreme court said in a statement. “The court rules that the copyright-holders have the right to absorb this value. It is not relevant whether or not Wikimedia has a commercial aim.”
Just so everyone is clear, the court is saying that artists should receive compensation for the public art for which they've already been paid, so long as we're talking about pictures of that public art being stored in a database, as opposed to a person simply snapping a picture.

But where is the line between individuals taking pictures and creating "a database"? How does it suddenly become copyright infringement for a non-profit entity like Wikipedia to host these images on its servers, but it's not if you or I do so? Wikipedia has said that it will be consulting with its legal team to talk next steps, with the focus being on how to change the nature of the debate to zero in on how outdated the law and this ruling are, but when was it ever acceptable for taxpayer-funded art to be controlled by private interests?


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  • icon
    Richard (profile), 6 Apr 2016 @ 9:53am

    what about

    Facebook, Instagram etc etc and all the other places where such images can be found?

    reply to this | link to this | view in chronology ]

  • icon
    DannyB (profile), 6 Apr 2016 @ 9:53am

    But Artists Need To Get Paid !

    But didn't they already get paid?
    With public money?


    Oh, but artists 'moral rights' are being violated.
    What moral right? The right to censor a valuable database that anyone worldwide can use?

    reply to this | link to this | view in chronology ]

    • icon
      Ninja (profile), 6 Apr 2016 @ 10:31am

      Re: But Artists Need To Get Paid !

      But Artists Need To Get Paid

      Multiple times. Through eternity. As long as the money comes to us intermediates and almost nothing go to the artists unless they sue, of course.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 7 Apr 2016 @ 10:34am

        Re: Re: But Artists Need To Get Paid !

        The one sided nature of IP laws makes it very clear that neither the artists nor the public weren't considered when these laws were being made.

        Big service providers were partially being considered when the DMCA was written. They have their exemption (and I think the exemption is a good thing) though the DMCA still poses a huge cost for them to keep up with and so they weren't being fully considered.

        Disney and other similar organizations were being considered. The laws are one sided in favor of a distributor that wants content removed and the laws do not allow one person to pretend to represent Disney when they really don't.

        The artists (ie: artists are the ones that upload content) are hardly taken into consideration. The penalty structure is stacked very strongly against them. If someone falsely claims 'ownership' their content the system strongly encourages the content to first be removed before the artist must later prove that they in fact do own the content under penalty of perjury. The person falsely claiming to own the content is not under penalty of perjury and the penalty structure is very much stacked in favor of the person making the false takedown claim even if they are wrong.

        This is unlike real property laws where the burden is on the person claiming to own something that's not in their possession to prove that they own it before any action can be taken against the property.


        But IP laws are what you get when sociopathic corporations get to undemocratically write laws with no consideration from anyone else.
        IP laws strongly reflect the fact that it is big business (with money) that has the most influence in writing laws. Copy protection lengths and retroactive extensions shows a lack of public consideration and it shows a strong consideration for the distributors that lobbied for these extensions. The one sided penalty structure against artists that upload their works shows a lack of artist (and public) consideration. The DMCA exemptions for service providers shows a business consideration for those service providers that have money to buy representation. The representation that's lacking in these laws is public and artist representation.

        reply to this | link to this | view in chronology ]

    • icon
      art guerrilla (profile), 6 Apr 2016 @ 2:32pm

      Re: But Artists Need To Get Paid !

      i guess i don't get it: wasn't this basically work-for-hire, such that if public monies paid for the artwork, and it was publicly owned, on public property, within public view (presumably being the whole point of public display), then how could the 'public' (government body) NOT own the artwork and all attendant rights ? ? ?
      i suppose it is possible the public could pay the artist's and yet the artist have a contract to retain all rights, blah blah blah... how that works on a so-called public work of art, then seems totally at odds with the very concept...
      BUT, that still obviates the idea of OTHER individuals taking their own pictures of public art, and how THAT becomes the property of the original artist...
      i don't get it as a matter of law and/or equity...
      is it just they are greedtards ? ? ?
      seems to be...

      reply to this | link to this | view in chronology ]

    • identicon
      Pseudonym, 6 Apr 2016 @ 11:29pm

      Re: But Artists Need To Get Paid !

      I know you're kidding, but just to be clear, no, these aren't moral rights. Moral rights cover things like:

      - The right to be identified as the creator of the work.
      - The right to prevent the use of the artist's name on any work which the artist did not create.
      - The right to preserve the integrity of the work from mutilation or distortion.

      So that would cover things like:

      - The artist's name should be attached to the metadata associated with any picture of it on Wikipedia.
      - Nobody may use photographs of the artwork to, say, push a political agenda which the artist does not agree with.

      All stuff that Wikipedia could easily abide by, and probably does already, and are not the subject of this case.

      reply to this | link to this | view in chronology ]

  • identicon
    Dave, 6 Apr 2016 @ 10:14am

    Before you jump on the Swedes you should check whether your country has similar restrictions on Freedom of Panorama. For the USA (which does have restrictions) - see https://commons.wikimedia.org/wiki/Commons:Freedom_of_panorama#United_States

    reply to this | link to this | view in chronology ]

    • icon
      Chronno S. Trigger (profile), 6 Apr 2016 @ 10:26am

      Re:

      But that's just talking about buildings or bridges or highways. It says nothing about statues. I don't doubt that in the US the laws for bridges and the laws for statues are completely different.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 6 Apr 2016 @ 11:41am

        Re: Re:

        @Chronno - read further down - "artworks and sculptures" are NOT OK to photograph in the USA (complex rules about pre-1923 and pre-1978)

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Apr 2016 @ 10:34am

    And then they talk about spreading culture and how the new generation is less cultured...

    The best chance to have the sculptures (and your country) known and you're killing it because of copyrights.


    And yet, someone will tell me that the copyright's purpose is to foster knowledge blahblahblahblahblah.


    Btw, does the swedish government pay every time someone visits their country because they saw an artwork on the net and decides that it wants to see in person?

    Guess not.

    reply to this | link to this | view in chronology ]

    • identicon
      Mel, 7 Apr 2016 @ 7:41am

      Re: The best chance to have the sculptures (and your country) known and you're killing it because of copyrights.

      It's all part of the Right To Be Forgotten. Honoring the court's decision, not looking at the Wikipedia article, I still don't know that those statues exist, and I still don't care.

      reply to this | link to this | view in chronology ]

      • identicon
        Lisboeta, 7 Apr 2016 @ 8:48am

        Re: Re: The best chance to have the sculptures (and your country) known and you're killing it because of copyrights.

        Is it just Wikipedia/media that is being taken to task? What about all the tourism sites that include photos as an inducement to visit the country: architecture; sculpture and other public art; museum exhibits; parks and gardens; landscapes; food, etc.? And has anyone told the Swedish Public Art Agency? I do hope their database conforms to the ruling.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Apr 2016 @ 10:47am

    Love this part, apparently WikiPedia provides no value

    A database of this kind can be deemed to have a commercial value that is not inconsiderable,” the supreme court said in a statement. The court rules that the copyright-holders have the right to absorb this value.

    This part is great. So a database, website, search mechanism, etc. provide no additional value. All of the value belongs to the copyright holder. This is the same mindset that movie studios and music labels have, that the content is 100% of the value and the platform that brings this content to the consumer provides no value. Frankly I think the net should be scrubbed of all of this stuff and let it no longer be spoken of. When nobody comes to see the artwork, listen to the music or watch the movie, the creators will be clamoring for some way to get notices.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Apr 2016 @ 10:20am

      Re: Love this part, apparently WikiPedia provides no value

      and the whole point of copy protection laws shouldn't be so that publishers and distributors can absorb any possible value something may have. It's so that we have more valuable and freely available content to index and enjoy.

      reply to this | link to this | view in chronology ]

  • identicon
    Andre Costa, 6 Apr 2016 @ 10:55am

    Supreme Court

    A correction to the text "a court" should read "the supreme Court". Sadly :(

    reply to this | link to this | view in chronology ]

  • icon
    Nihiltres (profile), 6 Apr 2016 @ 11:11am

    Those poor sick pits

    Typo to be fixed: "hosting pitcures" in the first paragraph. Too bad this isn't Wikipedia, or I'd fix it myself. :)

    reply to this | link to this | view in chronology ]

  • icon
    Synonymous Howard (profile), 6 Apr 2016 @ 11:15am

    uploaded to Wikipedia by individual administrators for Wikipedia articles

    I'm going to pick on your language here Tim, because technically correct is the best kind of correct.

    First of all, any registered user can upload a photograph, not just admins. Second of all, most photos are uploaded to Wikimedia Commons rather than English Wikipedia, so that they can be used on other language Wikipedias or other Wikimedia projects.

    reply to this | link to this | view in chronology ]

  • icon
    Bergman (profile), 6 Apr 2016 @ 12:24pm

    My mother makes a scrapbook of every vacation she goes on

    The main difference between a scrapbook and a database is the words "on a computer." Given how every picture she takes these days when on vacation is digital and she frequently shares them with family members via social media, the difference between her scrapbook and a database is almost entirely semantic.

    Guess we'll have to take Sweden off the list of places that are acceptable tourism destinations.

    reply to this | link to this | view in chronology ]

    • identicon
      Bruce C., 7 Apr 2016 @ 12:44am

      Re: My mother makes a scrapbook of every vacation she goes on

      No, the difference is private use vs. public. You view scrapbook with family/friends. Wikipedia is open to the internet at large. In the fair use defense analysis used in the US, this relates to the impact to the market of the copyright holder.

      It doesn't help the ruling very much though. It's still the false doctrine of lost sales to assume that every person who views a public sculpture on Wikipedia would have purchased a photo or a replica of the sculpture.

      reply to this | link to this | view in chronology ]

  • identicon
    Rocky, 6 Apr 2016 @ 1:13pm

    Auction house catalogs

    So, I wonder if the auction houses that sells art are paying for having the art displayed in their catalogs. After all, it is a very commercial act isn't it?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Apr 2016 @ 2:09pm

    Portlandia nods her brass head at this judgement.

    After all, someone could conceivably be making oodles off of selling a book of "Statues of Sweden", for which the presumed sculptors would get a presumed kickback.

    reply to this | link to this | view in chronology ]

  • identicon
    Copywrong, 6 Apr 2016 @ 5:33pm

    Out Of Satan's Anus

    Copywrong was evil the moment it was conceived. This particular ruling is not an aberration, it is THE essence of copywrong. No good comes from owning something which by logic should/cannot be owned. https://openclipart.org/download/219031/Thomas-Jefferson-Copywrong.svg

    Intellectual slavery.

    reply to this | link to this | view in chronology ]

  • identicon
    Whatever, 6 Apr 2016 @ 5:40pm

    Of course Wikipedia is at fault. Wikipedia is the attack dog of Google and blacked out their site to lie about SOPA. It's about time someone brought these piracy enablers to justice.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Apr 2016 @ 5:55pm

    "it is different when it’s a database where artworks are made available to the public to an unlimited extent without copyright-holders receiving any remuneration"
    =
    "It is different because we say so"

    reply to this | link to this | view in chronology ]

  • icon
    PaulT (profile), 7 Apr 2016 @ 12:26am

    "artists who were paid for their efforts with taxpayer dollar"

    Taxpayer krona, surely? :)

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Apr 2016 @ 10:18am

    Wikipedia has a huge audience. They should just remove the image and, in its place, explain why the art isn't there linking to an article explaining how copy protection laws have generally gone overboard and having some information about these laws in various countries including statutory laws and case laws. They should especially name names.

    Or what they can do is ask for permission. If an author denies permission they should simply state in the article where the picture would appear that the image is not visible because the author or publisher (name names) refuses to give permission and while permission may or may not be needed depending on jurisdiction and fair use Wikipedia would like to avoid any potential lawsuits. If people know who is a jerk and who isn't about having an image on Wikipedia at least they can better know who to avoid giving business to (then you will have people and companies suing Wikipedia claiming they are hurting their business ... no, it's the business's own decision to abuse copy protection laws that's hurting their own business. People and organizations have a right to express the behavior of a business so that others can choose not to do business with them and I have the right to avoid any business or entity that abuses copy protection laws and to know about their abuse of these laws).

    reply to this | link to this | view in chronology ]

  • identicon
    al baker, 7 Apr 2016 @ 10:48am

    is it all photos now?

    "Yay, that's one in the bag, what next?"

    "I hear Google Earth also has some photos of Public works, and they've got loads of cash"

    "Cha Ching!!!"

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Apr 2016 @ 11:10am

      Re: is it all photos now?

      and if a government or relevant party asked for something to be removed Google should blur the image and replace it with a message that says so and so (name names) has requested that we remove the statue from here.

      A city with a bunch of blurred images on Google maps would look ugly anyways, isn't the whole point of having a monument or statute to decorate the city so that it looks better and attract businesses and citizens? Blurring everything out will degrade the appearance of the city in a bad way but it won't reflect badly on Google.

      reply to this | link to this | view in chronology ]

  • icon
    djl47 (profile), 7 Apr 2016 @ 11:56am

    e.g. Portlandia

    https://en.wikipedia.org/wiki/Portlandia_%28statue%29 Paid for with public money and private donations but the artist retained the copyright. The solution is obvious. Move all of this publicly funded art into a dark warehouse where nobody can violate the copyright.

    reply to this | link to this | view in chronology ]

    • icon
      trollificus (profile), 8 Apr 2016 @ 8:11am

      Re: e.g. Portlandia

      Given the 'quality' of some public art and its popularity with the public, that would be acceptable. Elitist art Nazis in positions of authority seem to have an almost vindictive attitude towards actual "popular" art and the benighted yahoos who like it (never mind these are the people who, you know, make up the "public").

      And best of all the grant-granting department gets paid to assess proposals, the contract for preparing the public space for the artwork gets handed out to someone on a particular political campaigns' donors list, same with the contracts for moving and warehousing the newly 'protected' art. All working as designed, and everybody gets paid except the artists.

      reply to this | link to this | view in chronology ]

  • icon
    procopius (profile), 9 Apr 2016 @ 7:26pm

    Who's the copyright holder?

    I am not a lawyer, and the media companies have managed to confuse and corrupt "intellectual property" to the point that a little old lady can be imprisoned for thirty years if her eight-year-old granddaughter downloads a picture, but I would have thought that if I commission an artist to produce a particular work, and I pay that artist the agreed fee, then I am the sole owner of the said work with all rights attached, including copyright. If a municipality commissioned a statue and then paid the artist, the municipality must be the copyright holder, not the artist. Or is copyright a multiple-owner kind of thing? That is, when I'm going to use a picture it's not enough to search for one copyright holder, there may be a couple of dozen and I have to find them all?

    reply to this | link to this | view in chronology ]

    • icon
      John Fenderson (profile), 9 Apr 2016 @ 10:29pm

      Re: Who's the copyright holder?

      "I would have thought that if I commission an artist to produce a particular work, and I pay that artist the agreed fee, then I am the sole owner of the said work with all rights attached, including copyright."

      In the US, this would not be true. You would have to have the creator of the work explicitly sign the rights over to you.

      This most commonly burns people who get their family photos taken at a professional studio -- they assume that they own the pictures they paid for. But they don't, the photographer does.

      reply to this | link to this | view in chronology ]

  • icon
    klaus (profile), 10 Apr 2016 @ 4:32pm

    Wrong

    Suing Wikipedia is a dick move. It's like taking a huge, steaming dump in the corner of the Sistine Chapel... punching Snow White in the guts at Eurodisney... talking on your phone during the Requiem Mass in D Minor...

    Some things are just wrong.

    reply to this | link to this | view in chronology ]


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