There are at least a couple of different things worth mentioning here.

1. I think nobody disputes the fact that the paintings are in the public domain with respect to copyright.

2. If the photos hold any copyright or not will be up to UK law to decide. US law has nothing to say in this matter.

What is in front of the lense has no bearing on if a photo has copyright protection or not. I think most people agree that even the most casual partyclicker owns the copyright to her/his images. A tree in the jungle usually do not have any copyright attached to it. Does that mean all pictures of this tree is in the public domain? And argument like that becomes absurd.

My guess is that the photos are copyrighted no matter how little we like it. If you want to play the “creative work” card, most pictures taken in the world would be in the public domain. Little or none creativity goes into most pictures taken. It is merely documentation of the “I was there” kind.

Also, the person downloading and then uploading the images MUST have known he was doing something forbidden by the gallery and he did it despite this fact. So there is definitely an intention behind the action.

Here is what should have been done: Go to the gallery, take your own pictures and post them as public domain.

Alternatively – contact the gallery, get the medium sized images and everyone is happy!

I agree that an institution like this actually gains a lot on making the works they own available. And maybe there should even be a law that said that they has to make it available on the internet if they receive the taxpayers money. But the gallery can not be forced to use Wikimedia as their chosen way of publishing the works. Adding Wikimedia to the list would be a nice service, but Wikimedia should be the ones to contact the gallery to ask for the material.

1. The NPG is not saying that images of the works in its care should not be available through Wikipedia; its saying the cracked zoomify versions shouldn’t be available there, as the commercial use of large-scale images helps support their digitisation programme. The NPG is happy with its 500 pixel images being available on Wikipedia, and that’s really just in line with 99% of all other images available there.

2. Through encouraging clickthroughs from Wikipedia to the NPG site, where the zoomify images are available, Wikipedia has the opportunity to allow its users to discover all the complex interlinking of images, artists, resources, products etc that the NPG has spent a lot of time working on, to increase both the availability and the discoverability of resources.

3. Some people out there seem to live in a bit of a cloud cuckoo land, where all Government-funded institutions have free rein to spend whatever they like on whatever takes their fancy. News Flash. The NPG has all kinds of demands on its resources, like storage, conservation, education, research, etc. etc. The Director does not have a notline to the Chancellor of the Exchequer on his desk. They do, however, have a commitment to providing the best possible mix of publically available information and images, alongside the creation of a revenue stream that helps support their activities. How is the flagrant theft of their zoomify images any different from walking into their premises and shoplifting postcards? Both activities are done without the Gallery’s consent. Are they both ok because ‘its the taxpayer who funds production’?

I reiterate, this argument is not, I repeat not, about the NPG resisting access to images of works in its care. It is about the NPG’s right to restrict access to large scale images, while encouraging access to lower-resolution versions of the same images.

The opinion of the silk “that UK copyright law protects photographs of works of art” is beside the point. It only does so if the works of art in question are themselves copyrighted, and in this case they are not. It also makes points which in so far as they are true, are not on point, like the notion that a 2D copy of a 3D work is copyrightable. Here we are dealing with a 2D copy of 2D public domain works.

Even 2D copies of 3D works is the subject of fierce dispute – see for example a Waikato Law Review article by Anne Kingsbury. In speaking of UK and NZ legislation, she notes that “Sections 73(3) and 62(3) mean that it is also not a copyright infringement to photograph these kinds of works and sell the photographs or make and sell postcards. Printing drawings or photographs on T-shirts and selling these will also not in-
fringe. It is irrelevant that these are commercial uses; they are still permitted under the exceptions.”.

In relation to a similar case in New Zealand (Radford v Hallensteins) the court there threw out a lawsuit by a sculptor against a maker of T-shirts which had an image of the sculpture. NZ and English law were discussed thoroughly (vol. 15, page 83);

“… the High Court Judge held that s 73 applied and that there was no infringement. The Judge considered both s 73 and the English provision s 62 and its antecedents, and commentary thereon. He said that s 73:
‘sets out to allow members of the public, including players in the market, to copy in two-dimensions sculptures permanently in the public domain and even for profit; and it does so by setting aside any copyright in the work that the author might otherwise enjoy’.
However s 73 [s 62 in the UK] is interpreted, that clear policy is not for compromise. The sculptor in that case was understandably aggrieved …”

The same academic review (on copyright law and the protection of public art and works on public display) mentioned that under both the UK and NZ legislation, which are very similar, it’s likely that working materials associated with the works (notes, sketches, designs) are also not protected. This raises the possibility that databases associated with the public domain works would likewise not be protected.

Webb also asserts that the “Bridgeman v. Corel case … doesn’t apply in the slightest in the UK”.

The Bridgman case applies at least as much as the silk’s opinion. There are layers of authority, some binding, some not. A UK court could disregard both. It might regard the US decision in “Bridgeman v. Corel” by Judge Kaplan as being of at least persuasive authority, particularly since he specifically discussed UK law. It is, at the least, a case decided in a recognized common-law jurisdiction, which the opinion of James QC is not.