Wikimedia, Gage and Orphan Works

Whenever two or three photographers are gathered together issues of copyright are seldom far away, and increasingly they hit the news too.

Almost all the pictures on this site are by me. When I wrote and blogged for a commercial site ( for eight years I was required to have explicit written consent for any images used other than those that were unequivocally in the public domain, and its a policy that I’ve stuck to pretty rigidly here. After all, I don’t like others taking my images in vain.

The strength of the Internet is very much in how it links sites together, and takes users on some fascinating journeys. If I want readers to see an image by another photographer, I’d generally prefer to take them to that photographers website, where as well as the image I refer them to they may find other things to interest them. A good link is much more than an image.

Wikimedia and the NPG

Three things about copyright have come to my attention recently. The first hit the national news when the English National Portrait Gallery (NPG) threatened Wikipedia over the uses of images from its collection.

The pictures in the collection are clearly out of copyright, being paintings of considerable age. The dispute is over whether the NPG can claim copyright in its reproductions of these images.

Despite the fact that it takes skill and considerable expense to make accurate photographic reproductios of paintings, it would seem to me to be something that was clearly and deliberately outside the traditional definition of copyright. This clearly stated that it must involve articles of artistic intent rather than those that were a matter of mechanical reproduction.

So far as I’m aware, British courts have never been asked to rule on this specific matter, and although at least one leading UK copyright lawyer has given his opinion that such works are copyright, I’ve heard others express a differing view. In the US, the case of Bridgeman v. Corel gave a clear decision that such works were in the public domain, but still many museums continue to claim copyright.

Phineas Gage

A similar case exists over the privately owned daguerreotype of Phineas P Gage 1823-1860 in the Wilgus collection. I can’t get too worked up over it  –  it isn’t a great example of the daguerreotype art although Gage is mildly interesting – an early victim of an industrial accident, he was a railway builder who had his head pierced through by an iron rod he was using to pack gunpowder which exploded prematurely. Although the rod went in his left cheek and out through the top of his head, he survived for a further 11 years. The photo shows him holding the large rod and with a missing eye.

The dispute here was largely that the image was originally placed on the web site with a visible watermark across Gage. Following a rather furious Internet spat, the owners have re-posted it with the watermark across the case – possibly more interesting than the actual portrait!

Private Ownership and Public Institutions

Both these cases are essentially not so much about copyright as about the business interests of the owners of the original in supplying high res images for reproduction. Owners of public domain images are in general under no obligation to put them on the web and have every right to charge a fee for supplying files, and to impose a suitable licence on their use.

A note on the Gage page states: “High resolution photographs without a watermark are available for reproduction. Contact us for information on usage fees. For several years we have had an informal business supplying images in our collection to publishers, film, and television producers for a modest fee. We often grant permission for educational and non-profit usage, asking only for a credit line and, perhaps, a copy of the publication if it interests us.” I find it hard to find fault with this.

For the National Portrait Gallery, the situation is I think different. It is a publicly funded body, and it’s my and others taxes that have paid for these images and indeed for their reproduction. The pictures belong to us and it is a central part of the NPG’s remit to make them available as widely as possible. Hard to see a better way to meet its obligations than by allowing Google to use them.

The NPG appears to have a poor reputation over its attitude to reproduction of works in the collection. In the comments on the  Wikimedia blog you can read this from someone working for a UK publisher:
I’d just like to say that the National Portrait Gallery is one of the worst offenders in the world in its digital practices. The terms and conditions (quite apart from the cost) associated with getting permission to use one of their images – itself a pretty offensive idea, I know – are so bad that you can’t really afford to do business with them.

This is particularly bad because the NPG often holds the only good image of a historical figure. I’m publishing the only book in some decades about a minor 18th-century writer, for instance, whom the NPG owns the only contemporary painting of. It’s the obvious choice for a cover image. But we can’t afford the money or the legal obstacles, so it’s not on our cover. Instead we’re using an obscure etching of a sketch made towards the exact same painting.

If I had to name one museum or gallery in the UK as the chief villain in this all-too-common story, the NPG would be the one.”

It does seem likely that a compromise will be reached in this case also; an NPG spokeswoman is reported by the BBC to have been said that they would be willing to supply medium resolution images of its public domain works to Wikipedia.

Orphan Works

The third thing that I read a month or two ago was a post by Dan Heller on the “odds between the myth and reality of the OWA” (Orphan Works Act.)

What I think this makes clear is that the problem that photographers – or at least 99% of photographers – have is not the likely consequences of the OWA, but with US Copyright Law as it has been since 1976 (at least.) This essentially went against the terms of the Berne Copyright Convention in requiring registration of works at the US Copyright Office for effective copyright protection.

As Heller states, “99% of photographers don’t register their works. So, for them, the OWA is inconsequential.

He goes further to argue that for the 1% who do register the OWA is “a new sales opportunity, one that cannot be compared to any other: the searchable database might allow users to find your works.”

This post in May was Heller’s first in association with PicScout, a partnership that didn’t long survive the posting.  The PicScout bot, used by Getty Images, Corbis and others to discover unauthorised image usage, has aroused some strong feelings on the Internet, for example being described by William Faulkner  as “potentially criminal and certainly unethical.” Faulkner points out – among other things – that it’s behaviour is expressly forbidden in the terms of usage of Getty Images’ own web site.

2 Responses to “Wikimedia, Gage and Orphan Works”

  1. argv01 says:

    You said: “This essentially went against the terms of the Berne Copyright Convention in requiring registration of works at the US Copyright Office for effective copyright protection.”

    Your mixing facts. US copyright law does not require registration, just like every other country that signed the Berne treaty. One is just as eligible to the same protections for non-registered works as any other country — same methods, same damages, same judicial process.

    The US just added *additional* protections within its own copyright law that go *beyond* Berne: statutory damages. But to be eligible for these additional protections, copyright holders need to register those works. This doesn’t violate Berne at all.

    The provisions for OWA are there to protect infringers from paying those extra statutory damages, and only under certain conditions. If those conditions don’t apply, they would again by liable for statutory damages. If those conditions were met, *or* if the works were not registered works, the infringers are still liable for damages outside of statutes. Just as if the OWA never existed.

    The net-net: only copyright holders that register their works could possibly be affected by the OWA, eliminating 99% of photographers.

  2. The point is that although US law as you correctly say does not require registration, it only gives any effective protection to registered works. It is essentially a way to get around the requirement of the Berne treaty which aimed to remove the need for such registration.

    The US could have enacted law providing for damages as it did without requiring registration. It chose to set up its own parallel system that essentially sidelined Berne.

    And it is entirely because of this that – as I quote Heller writing – the OWA will be inconsequential for those 99% of photographers.

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