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On October 28 the Reiss Engelhorn Museum (REM) in Mannheim, Germany, filed a lawsuit against the Wikimedia Foundation for making high-resolution images of public domain artworks from its collection available for download. The contested images include photos of works by the Rococo painter Anna Dorothea Therbusch, the Flemish still life painter Alexander Coosemans, and the Dutch Golden Age painter Jacob Ochtervelt, as well as a drawing of Michelangelo’s Moses by Peter Anton von Verschaffelt and Cäsar Willich‘s circa-1862 portrait of Richard Wagner.
While many more photos of works from the REM collection are available on Wikimedia Commons, the institution is seeking the removal of 17 specific images of artworks that it commissioned from its in-house photographer, Jean Christen. The museum subsequently filed an additional lawsuit against Wikimedia Deutschland. Unlike the amateur photos that make up the bulk of the images of works from the REM collection available on the Wikimedia Commons, the institution claims it has copyright to the photos it commissioned from a professional photographer who used a tripod and a special lighting rig. Wikimedia, predictably, disagrees.
“Copyright law should not be misused to attempt to control the dissemination of works of art that have long been in the public domain, such as the paintings housed in the Reiss Engelhorn Museum,” the Wikimedia Foundation’s Legal Director, Michelle Paulson, and General Counsel, Geoff Brigham, wrote in a blog post.
The intent of copyright is to reward creativity and originality, not to create new rights limiting the online sharing of images of public domain works. Moreover, even if German copyright law is found to provide some rights over these images, we believe that using those rights to prevent sharing of public domain works runs counter to the mission of the Reiss Engelhorn Museum and the City of Mannheim and impoverishes the cultural heritage of people worldwide.
The 17 offending images, which Wikimedia has collected in one gallery, were all uploaded to the site by one Andreas Praefcke, a very active Wikimedia contributor and prolific collector of postcards of theaters and concert halls. On his Wikimedia user profile page, he explains how he sources his images: “I have uploaded many of my own photos of buildings, churches, and sculptures, my own scans of public domain images, and images of public domain works of art from the web (especially from auction and museum catalogues).” Accordingly, his REM uploads are all credited to the museum, often acknowledging Christen as the photographer and the specific exhibition catalogue where the digitized image first appeared.
While the REM is the first museum to sue Wikimedia over images of artworks, another institution threatened legal action over a similar situation involving many more images in 2009. At the time, US-based Wikimedia contributor Derrick Coetzee (who has since been banned from the site) had downloaded some 3,014 high-resolution photos of artworks in the collection of the UK’s National Portrait Gallery (NPG) from the gallery’s website and then uploaded them to Wikimedia. While the NPG held a copyright to the high-quality photos under British law, it did not under US law.
The museum threatened to sue Coetzee, claiming it could lose as much as £339,000 (~$509,000) per year in licensing fees for the copyrighted photos. The NPG eventually backed down and revised its licensing practices, allowing for the free download of 53,000 low-resolution photos of works from its collection for non-commercial use through a Creative Commons license. It also began offering free licenses for academic uses of more than 87,000 high-resolution photos of pieces in its collection.
“Image licensing is really important to the NPG and across the sector, and we’ve always been keen to carefully manage the balance between what we make available for free and what we charge for,” the NPG’s Head of Rights and Reproductions Tom Morgan told the Museums Journal in 2012. “Obviously this is quite complex — on one hand, if people are making money from a museum’s content then it’s right the museum should share that profit but we also want to support academic and education activity. So we took the opportunity to look at the way in which we could deliver this service and automate it.”