Good post by Mike Masnick from a couple years ago on Techdirt:

National Portrait Gallery Threatens Wikimedia Developer For Downloading Public Domain Images

from the what-public-domain? dept

Derrick Coetzee, a software developer and an administrator of Wikimedia Commons, the media repository for Wikipedia is being threatened by the National Portrait Gallery in London. Coetzee admits that he downloaded about 3,000 high-resolution images from the site, but notes that they are all of paintings that are in the public domain (nearly all are over 100 years old). Coetzee is in the US, where he notes Bridgeman v. Corel suggests that photographs of public domain paintings do not carry any copyright, since the photograph does not add any new expression. However, such issues are not settled in the UK, and the National Portrait Gallery is insisting that the photos are covered by copyright.

On top of that, the Gallery is claiming a violation of its database right. Database rights are an unfortunate mistake in European law, that allows a copyright-like right to be held on a database, even if the entries in that database are uncopyrightable — such as a collection of facts or a collection of public domain works. Finally, the Gallery is also claiming that Coetzee unlawfully circumvented protection methods designed to keep folks like himself from downloading the content — and thanks to the UK’s own anti-circumvention law, that too could make him guilty of infringement. Of course, that last one shouldn’t apply if the content isn’t actually covered by copyright, as Coetzee argues.

The whole thing, frankly, seems rather ridiculous, and a huge black mark on the National Portrait Gallery in the UK. Here was a chance to help educate the public and give people more reasons to go to the Gallery to see the actual photos, and they’re trying to stomp out that kind of education through abuse of copyright law. The people who run the Gallery should be ashamed of themselves. They ought to go back and read their own mission statement:

Founded in 1856, the aim of the National Portrait Gallery, London is ‘to promote through the medium of portraits the appreciation and understanding of the men and women who have made and are making British history and culture, and … to promote the appreciation and understanding of portraiture in all media’. How, exactly, does suing someone for getting those portraits more attention achieve that goal?

I wrote to John Dvorak around this time, in response to one of his Cranky Geeks appearances where he discussed this issue:

I’m a huge fan of yours. Love your Cranky Geeks, and just listened to the recent episode. I think you and Curry botched the discussion of the National Portrait Gallery paintings, copyright, and Wikipedia issue.

I am, by the way, an intellectual property attorney, and also a libertrian, and an ardent *opponent* of copyright and patent on libertarian, property rights grounds. (My legal site is www.KinsellaLaw.com; my libertarian site and anti-IP writings may be found at www.stephankinsella.com/publications/#IP.)

Curry’s comments were incoherent–I’m an IP lawyer but I don’t know what he was talking about with this creative commons and copyright comments. I think he’s confused–understandable, and the law is a mess, but still.

Your comments were confused primarily because you misunderstand the facts–you seemed to assume the dispute was about some Wikipedia user who posted his own photographs of public domain paintings. I believe it’s a different issue: he downloaded the high-quality photographs on the NPG site and put them up on Wikpedia. True, the underlying painting is public domain, but the question is whether the photograph itself qualifies as an original work subject to its own copyright (not a derivative work, as you seemed to think).  It seems the law in the US leans away from copyright–the amount of originality in taking a photograph meant to be merely a reproduction of a 2D painting seems trivial–but in the UK maybe different.

(A good discussion of the National Portrait Gallery/Wikipedia issue can be found on Mike Masnick’s Techdirt post here
http://techdirt.com/articles/20090713/0203135526.shtml)

Personally I think it’s ridiculous, of course, for the guy who photographs a public domain painting to have a copyright in the photograph, but there you have it.

Another issue is the argument that in order to obtain the photographs from their site he circumvented copyright protection schemes, in violation of the DMCA — another ridiculous law, in my view–but there you have it.