Copyrights - It Depends On Your Definition of "Original" - NPG v. Wikipedia

Copyright infringement cases rarely make headline news, but the case Britain's National Portrait Gallery (NPG) has brought against Wikipedia has brought up a fascinating new twist to the rhetoric. Essentially NPG's complaint is that a Wikipedia user, Mr. Derrick Coetzee, copied high-resolution images of 3,300 paintings from their website and posted them on Wikipedia. The images, NPG asserts, are all recent original photographs taken by the NPG and that the NPG holds their copyright, therefore Mr Coetzee has infringed upon their copyright. The fact that Wikipedia has not taken the images down is at the heart of NPG's case.

The 3,300 images in question are of historical portrait paintings; downloaded by Mr. Coetzee to use as head shots for his post. The works of art are very old paintings which are in the Public Domain. But the photos of the paintings are new, thereby, according to the NPG, copyrightable.

Mr Coetzee's position is that the paintings are out of copyright, and since the images he downloaded are quite literally copies rather than original or even transformed or derived works then there cannot be any copyright for him to have infringed upon.

Arguments are being thrown around challenging both sides, either Wikipedia/Coetzee did infringe or did not. So does the NPG have a case? They are relying on s.1 and s.4 of Britain's Copyright, Designs and Patents Act 1988, which provides that original artistic works, including photographs, enjoy copyright protection. This of course, begs the question of what 'original' means.

A US court has ruled on this very issue, in Bridgeman Art Library v Corel Corp.

There the court interpreted the law such that a faithful photographic copy does not enjoy copyright. And again, Coetzee would argue the contested "images" are copies in and of themselves as they were online images.

The NPG makes other claims, including breach of contract, bypassing of technical protection measures and database right infringement, adding more interesting aspects to the case. The database infringement is another murky area that as yet is still empirically undefined.

Sidenote: Jack Reznicki has an excellent program to help you out with photo copyright called 'Copyrights & Copywrongs 2'.

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Filed under: Photo News July 31, 2009
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