Gallery Threatens To Sue Wikimedia Admin Over Portrait Uploads


Credit: National Portrait Gallery

An Electronic Frontier Foundation lawyer is representing an English American man threatened by London’s National Portrait Gallery for uploading images of its collection to Wikipedia.

The gallery is upset that Wikipedia admin Derrick Coetzee grabbed over 3,000 photographs of its portrait collection, converted them to hi-res and uploaded them to Wikimedia Commons, a repository for public domain and freely licensed works.

The gallery asked Wikipedia itself to remove the images, without success, so instructed its lawyers to contact Coetzee last week; he has posted the communication. The foundation argues it’s not responsible for user behaviour, and anyway: “It is our general understanding that the user in question has behaved in accordance with our mission, with the general goal of making public domain materials available via our Wikimedia Commons project, and in accordance with applicable law.” EFF’s Fred von Lohmann is now representing Coetzee.

Whilst the creators of the portraits themselves (and, therefore, the owners of their copyright) are long deceased, the case concerns the gallery’s photographs of the paintings, which it argues have separate and active copyright. One might argue that’s a disingenuous logic – though the original paintings are, to all intents, now in the public domain, by virtue of hanging in a gallery, the government-funded gallery’s claim works against the notion that they should equally be in the public domain in the digital world. It’s that which Coetzee and von Lohmann are likely to argue.



@Z!: In the US, copyright is generated by creativity. In the UK, they give more weight to the "sweat of the brow" guideline, e.g. if you expend effort, then you generate a new copyright, even if that effort is raising a camera and pressing the button with the intention of exactly replicating a public domain image. However, the UK courts have never ruled explicitly on this issue, unlike the US courts, so it's all a bit murky.


So here's how it works. Take painting "A". While the painting itself may be in the public domain, the owners do not have to let anybody come in and make a copy (photo) of it. Any previous copies (photos) made, as long as those copies have not been copyrighted, may be freely copied further.

The owners have the right to make copies themselves, and sell THOSE copies (posters, tshirts, photos, floaty pens, whatever) to anybody willing to lay out the money. They don't have to allow anybody else to copy their property… public domain or not.

Consider this as a printed work. Once in the public domain, any non-restricted copies of it may be freely copied, but you can't walk in to the British Library and ask them to Xerox a First Folio for you, since it's now in the public domain.

Of course, as I'm not a lawyer, I could be wrong… but I think it's a slippery slope if you start allowing photographs to be copied just because the material in the photograph is public domain. Lots of photographers selling photos of Yosemite National Park are going to be pretty upset with that interpretation.


Also, photos of paintings have virtually no creative input from the photographer since they are intended to faithfully reproduce the painting. As a copyright is intended to protect the creativity, I'm not sure how these photos would deserve protection


The paintings are out of copyright, the photos are works derived from the orignal (derivitive works). As such the copyright of the orignal works should be the the controling copyright.
An example, I record the playing of a public domain recording as a mp3. Just because the work is now in another format it does not extend the copyright of the work.


>> Unfortunately most galleries don’t let you take your own pictures…

I don't know about the National Portrait Gallery, but some galleries will let you take a picture without flash and without a tripod. With today's cameras using anti-shake technology I am wondering if a decent (at least for the web) photo can be taken in this case. Of course, if the picture is in storage, this whole train of thought is moot.

Paul Johnson

Unfortunately most galleries don't let you take your own pictures, on the grounds that flash makes them fade and tripods inconvenience other patrons


If I take a picture of a cloud in the sky, yes I can claim copyright to the picture even though I cannot claim copyright to cloud. The gallery certainly has a right to claim copyright on any of its photos no matter what the subject. Of course, if it is permitted, someone can always go and take their own pictures of the paintings and donate these to wikipedia.

Arwel Parry

Major error in your first sentence – Derrick Coetzee is not English – he's a US citizen resident in the US, which makes the whole affair legally very interesting since there is no doubt that no offence has been committed under US law.

Violet Petran

this seems like a hyper extension of copyright. The issue is not with the authors of the work at all but over photographs of the pictures!! what a stretch!

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