Art for Art's $ake?

It is rather depressing to hear that once again Wikimedia is being threatened with a copyright suit for publishing digital images of works of art which are themselves in the public domain. Like the spat between the UK's National Portrait Gallery and Wikimedia back in 2009, the current case involves another museum, this time it's the ReissEngelhorn Museum in Mannheim, Germany. Arguably Germany's domestic copyright law is less sympathetic to facsimile photographic copying of works of art than is thought to be the case under UK law. In fact of course both jurisdictions are likely to follow the EU acquis found principally in the Infopaq case where the CJEU decided that the test for originality was whether the new work was an expression of the spirit of the author. No doubt, like the 2009 dispute, the Reiss Engelhorn's complaint may well feature other matters such as database right and/or technical prevention measures, however this posting is concerned just with the copyright aspect.

The latest development is depressing for a number of reasons, not least because one might have hoped this would be settled law by now, considering that one of first test cases on the subject - the Graves Case - took place in 1869, a mere seven years after copyright protection in the UK had been extended to include photographs. In that case the photographer Henry Graves won his case, with the trial judge (Blackburn J) concluding "And it seems to me that a photograph taken from a picture is an original photograph, in so far that to copy it is an infringement of this statute [the Fine Art Copyright Act 1862]." Despite this slightly elliptical reasoning, the courts in England and Wales have not seriously upset this finding ever since. Although the test for originality more generally has been refined on many occasions, most notably in recent times in Designers Guild [2001], Hyperion Records [2005], Baigent v Random House [2006] and more specifically with regard to photography, in Antiquesportfolio.com v Rodney Fitch [2001], the line taken by the UK courts has been that if the photographer uses sufficient skill and labour in his or her choices (such as the timing, choice of viewpoint, exposure, depth of field, lighting etc) then the resulting photograph would be entitled to copyright as an original work. In contrast to this, in the US case of Bridgeman Art Library v Corel Corp [1999], the District Court of the Southern District of New York sought to apply UK law to the subject of photographs of classic works of art, and came to the opposite conclusion, namely that copyright did not subsist in mere photographic reproductions. And that was at a time when such photography was based on the use of film which arguably required greater skill on the part of both the photographer and the printmaker when it came to correctly reproducing the colours of a painting. By comparison, today's digital photography together with the widespread use of sophisticated editing software to faithfully recreate colours requires rather less skill and labour. And although not a case about photography, in Interlego AG v Tyco Industries, the UK Privy Council found that where design drawings were being manually copied, "[t]here must in addition be some element of material alteration or embellishment which suffices to make the totality of the work an original work. But copying per se, however much skill and labour be devoted to the process, cannot make an original work"

In mainland Europe, photography has always been something of a Cinderella artform. A typical response of the national courts can be seen in the Jimi Hendrix portrait case reported on by Marie-Andree a couple of months ago. And as well as Infopaq, in Painer [2001] we have a decision of the CJEU which provides additional clarity on the specific subject of originality in photographs. Taking German national law and the two CJEU decisions, Infopaq and Painer, all together, I wouldn't rate the Reiss Engelhorn Museum's chances of success in court as being too good.

And although the matter was settled, it is worth looking back at the outcome of the NPG & Wikipedia dispute from six years ago. According to the Wikipedia article referred to above, it would appear that the NPG resolved from an early stage not to resort to litigation, and the status quo today is that Wikimedia continues to host the images at the heart of the dispute. No money appears to have changed hands, so are we to conclude that the NPG effectively lost the battle? They have certainly amended their conditions of access allowing a large number of low resolution images to be freely accessed, and have made higher resolution images available 'for free' to the academic community. But it remains to be seen whether the Reiss Engelhorn will be forced to adopt a similar outcome.

There is without doubt a valid argument that works in the public domain should be readily accessible by the public, especially in the digital age, but where each work is unique and often very valuable (such as art), can such access invariably be free? There is considerable expense involved in the digitisation process itself, in preserving, restoring and protecting the original artworks, and in making them available to be viewed in person as well as online. Museums and art galleries cannot be expected to absorb this cost without passing at least some of it on to the public, although many institutions seek to offset these costs by charging commercial publishers and the like for access to high resolution images, rather than by charging higher public entry fees. But should copyright be used, possibly fraudulently, to underpin this business model? And if so, how can any work of art which is not already sited in a public place, ever be said to be truly in the public domain? And given that the EU has recently given museums, libraries and archives greater ability to make their orphan works available to the public, while recouping no more than the cost of digitization, how does this new right sit with the less justifiable (ab)use of copyright in cases where the copyright in the original is known to have expired long ago?