owned by everyone—in which case the gallery has no right to prevent sharing and reproduction of the works?
The Wikimedia Foundation has a firm stance on the question. The foundation says its position “has always been that faithful reproductions of two-dimensional public domain works of art are public domain, and that claims to the contrary represent an assault on the very concept of a public domain.” It’s supported in this position by a 1999 New York District Court decision, Bridgeman Art Library v. Corel Corp., in which a federal judge ruled that a photograph intended merely as a faithful copy of a work of art lacks originality, and therefore isn’t entitled to copyright protection. If the work itself is in the public domain, under this interpretation, then the photograph is too.
The Bridgeman decision obviously doesn’t have any force in the United Kingdom, where the presumption is still that a photograph of a painting is copyrighted. Farrer & Co. make this argument at length in their letter—and a coalition of UK museums called the Museum Copyright Group goes even farther, arguing that the Bridgeman ruling “is of doubtful authority even in the USA.” (District court decisions aren’t necessarily binding on other courts, and the Supreme Court has never ruled on the question.)
But assuming that courts in the UK, where the images were made and stored, will find that Coetzee’s actions are an open-and-shut case of copyright violation, it still won’t be simple for the National Portrait Gallery to enforce its claims, given that Coetzee is an American citizen and that the Wikimedia Foundation’s Web servers are in the United States. Enforcing UK copyrights in the United States is “possible to do, but it can be quite expensive,” Struan Robertson, a copyright attorney at London-based law firm Pinsent Masons, told the UK tech news site The Register.
So untangling all the legalities may take a while. That will give Coetzee, the Wikimedia Foundation, and the EFF plenty of time to rally support around their argument, which will likely be that the decision in Bridgeman should be the model for copyright policy around the world, and that the National Portrait Gallery, by attempting to assert its copyright in the images, is showing itself to be an enemy of the free exchange of ideas.
But it would be unjust to paint the museum as the villain in all this. Before there are any digital images to be exchanged, somebody has to make them—and that costs money. The National Portrait Gallery says it has spent over £1 million over the last five years to digitize its collection, which now consists of more than 60,000 online images. Many other museums are undertaking similar efforts, including Boston’s Museum of Fine Arts (MFA), whose collection of more than 160,000 online images is believed to be the world’s largest.
Having made high-resolution images of their treasured artworks, museum curators would probably like nothing better than to give them away. But they can’t afford to. As you may have noticed, our non-profit cultural institutions aren’t exactly swimming in cash, especially now that the the economic crisis has hit their usual donors so hard. For art museums, licensing images for use on posters, T-shirts, book covers, calendars, textbooks, and all the rest provides a vital revenue stream. If anyone could make a coffee mug showing Van Gogh’s Houses at Auvers without having to pay the MFA, that stream would dry up, and the museum would have a harder time making its art available at all.
The National Portrait Gallery put the situation this way, in a statement e-mailed to one inquirer: “The Gallery supports Wikipedia in its aim of making knowledge widely available and we would be happy for the site to use our low-resolution images, sufficient for most forms of public access, subject to safeguards…The Gallery is very concerned that
