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UK Affirms that Photographs of Public Domain Art Are Fair Use

Lorenzo Lotto, "Portrait of a Woman inspired by Lucretia" (16th century), oil on canvas. (via National Gallery/Wikimedia). The image on Wikimedia through the Google Cultural Institute is one of the high resolution images of public domain art protected against new copyright.
Lorenzo Lotto, “Portrait of a Woman inspired by Lucretia” (16th century), oil on canvas. (via National Gallery/Wikimedia). The image on Wikimedia through the Google Cultural Institute is one of the high resolution images of public domain art protected against new copyright.

An ongoing dispute with digital cultural heritage is whether high-resolution images of artworks in the public domain have a copyright when the photograph itself is new or improved. As Ben Sutton covered for Hyperallergic last week, the Reiss Engelhorn Museum in Mannheim, Germany, filed a lawsuit back in October against the Wikimedia Foundation, which has high-resolution images available of the museum’s public domain art that were commissioned from its in-house photographer.

The UK Intellectual Property Office (IPO), meanwhile, has clarified that even images like this are still within the public domain. Communia, an advocate for public domain policies, reported last week that IPO updated their Copyright Notice: digital images, photographs and the internet in November. The notice clearly acknowledges that the use of “specialist skills” to improve images cannot “be considered as ‘original’.” Here’s the full excerpt on the issue:

Simply creating a copy of an image won’t result in a new copyright in the new item. However, there is a degree of uncertainty regarding whether copyright can exist in digitised copies of older images for which copyright has expired. Some people argue that a new copyright may arise in such copies if specialist skills have been used to optimise detail, and/or the original image has been touched up to remove blemishes, stains or creases.

However, according to the Court of Justice of the European Union which has effect in UK law, copyright can only subsist in subject matter that is original in the sense that it is the author’s own ‘intellectual creation’. Given this criteria, it seems unlikely that what is merely a retouched, digitised image of an older work can be considered as ‘original’. This is because there will generally be minimal scope for a creator to exercise free and creative choices if their aim is simply to make a faithful reproduction of an existing work.

The clear language for these digital images is an encouraging step in respecting the public domain status of the artwork. As TechDirt pointed out in their coverage, back in 2009 the National Portrait Gallery in London threatened to sue Wikimedia Commons in regards to images from their collections.

In the United States, the Bridgeman Art Library v. Corel Corp decision in 1999 ruled similarly that photographs of art in the public domain do not have the originality necessary for copyright. Nevertheless, copyright in the UK is still in flux. Ars Technica reported on Saturday that through a consultation ongoing in the UK government, photographs of designer objects still under copyright might be limited to those with a license (for instance, a Robin Day chair). So while limitations on photography, digital images, and cultural heritage copyright are still being debated, the lines between what is and what is not within the public domain are still shifting.

h/t Communia

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