From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Thursday, 21 August 2014

Taking a selfie inside the National Gallery: a copyright infringement?

From the National Gallery
permanent collection:
E. Manet, Woman with a Kat, ca 1880-82
A few days ago a number of UK newspapers reported that, following similar moves by a number of other UK institutions, also the National Gallery in London has changed its strict no-photos-(please) policy "after staff realised they were fighting a losing battle against mobile phones", The Telegraph explains

In particular, this decision has been motivated by the difficulties that have arisen to distinguish between visitors using the free wi-fi provided by the Gallery "to research paintings" [of course, what else?] "and those trying to take pictures with mobile phones." 

Since late July the new photography policy of this glorious cultural institution has quietly replaced the old one: visitors may now take photos of the Gallery's permanent collection on their own devices for personal, non-commercial purposes. Tripods remain off limits, and visitors will also be “discouraged” from blocking other people’s views while taking pictures. In any case, similarly to the National Portrait Gallery and the Tate, the National Gallery "will maintain restrictions on members of the public photographing their temporary exhibitions, for reasons of copyright" [as well as, presumably, in some other cases for reasons of security or conservation].

So, would the taking of a picture of temporary exhibitions or displays with loans be really a potential copyright infringement? It might well be, provided of course that the particular work photographed is still protected by copyright [which might be the case also for works in the permanent collection, although for those paintings it is likely that the Gallery also owns the copyright]


Kats in panoramic view
No freedom of panorama, darling

The conclusion above is because the so called freedom of panorama under UK copyright does not apply to paintings. Section 62 (Representation of certain artistic works on public display) of the Copyright, Designs and Patents Act 1988 ('CDPA') states: 

(1) This section applies to-
(a) buildings, and
(b) sculptures, models for buildings and works of artistic craftsmanship, if permanently situated in a public place or in premises open to the public.
(2) The copyright in such works is not infringed by-
(a) making a graphic work representing it,
(b) making a photograph or film of it, or
(c) making a broadcast of a visual image of it.
(3) Nor is the copyright infringed by the issue to the public of copies, or the communication to the public, of anything whose making was, by virtue of this section, not an infringement of the copyright.

This means that while taking the picture of, say, a copyright-protected sculpture in the permanent collection [thus excluding loans and temporary exhibitions] of a museum would not be a copyright infringement, the same may not be true for the picture of a painting, no matter whether in the permanent collection, loan display or temporary collection of a museum [see the recent UK IPO's Copyright Notice, p 3].

UK freedom of panorama is narrower than the corresponding provision in Article 5(3)(h) of the InfoSoc Directive, which allows EU Member States to provide for an optional [just think that an art-rich Member State like Italy does not have it] exception or limitation for "use of works, such as works of architecture or sculpture, made to be located permanently in public places".

So freedom of panorama would not apply. 

However, could there be cases in which other copyright exceptions may be invoked successfully by those naughty visitors who happen to take particular types of pictures in front of paintings they are not allowed to photograph? What about portraits or self-portraits (also known as selfies) [Merpel sighs: of course, what else? Ordinary people-free photographs of paintings are not just boring but also so passé, especially considering the quality of one’s own digital reproductions of paintings in comparison to those freely available online]?

Multi-infringement alert:
Jerry Hall posing with Lucian Freud's
representations of her
Can a selfie in front of a painting call for the incidental inclusion defence?

If you pose in front of a copyright-protected painting to take a selfie (as the Guardian journalist did and you may do too, albeit perhaps more skilfully) in one of the Gallery's temporary exhibitions, can you then tell the guard who has just approached you that it was incidental inclusion of copyright material?

Section 31 CDPA states:

(1) Copyright in a work is not infringed by its incidental inclusion in an artistic work [eg a selfie, whose main element is ... yourself], sound recording, film or broadcast.
(2) Nor is the copyright infringed by the issue to the public of copies [eg sharing the selfie via Twitter, Facebook, etc], or the playing, showing or communication to the public, or anything whose making was, by virtue of subsection (1), not an infringement of the copyright.
(3) A musical work, words spoken or sung with music or so much of a sound recording or broadcast as includes a musical work or such words, shall not be regarded as incidentally included in another work if it is deliberately included. 

According to Copinger and Skone James on Copyright [one this Kat's own "As Lessig says" references] the term 'incidental', though not further defined in the statute, bears its ordinary meaning as something casual or of secondary importance. Similarly, Laddie Prescott and Vitoria say: "The Act contains no definition of 'incidental', but this is an ordinary English word with connotations of what is casual, not essential, subordinate, merely background, etc. It is submitted that while what is incidental is a question of fact and degree, an important consideration would be as to whether the taking [semble, what has been copied] enables the work to compete with or act as a substitute for the work which is included."

Could this be the case of a selfie shared on Twitter in respect of, say, a Lucian Freud painting on temporary display at the National Gallery or, as it really happened a couple of years ago, at the National Portrait Gallery? Could your own selfie be considered a competitor of or even a substitute for authorised (and likely professional) digital reproductions of the painting in question? 

In Panini the Court of Appeal of England and Wales had to consider whether inclusion of individual club badges and the Premier League emblem on Panini's collectible stickers depicting well-known football players was tantamount to an infringement of the copyright held by the Football Association Premier League (‘FAPL’) and a number of football clubs or whether, instead, their inclusion was merely 'incidental' as per Section 31 CDPA.

The Court recalled that, when discussing the bill that would eventually become the CDPA before the House of Lords, the minister responsible for its progress (Lord Beaverbrook) put it: "What is incidental will depend on all the circumstances of each case." This also means, said the Court, that "'incidental' was not intended to mean 'unintentional'". Furthermore, 

"in principle, there is no necessary dichotomy between "integral" and "incidental". Where an artistic work in which copyright subsists appears in a photograph because it is part of the setting in which the photographer finds his subject it can properly be said to be an integral part of the photograph: if it is part of the setting in which the photographer finds his subject, it will, necessarily, appear in the photograph unless edited out. In that sense the work in relation to which copyright is said to be infringed (work 'A') is integral to the photograph (work 'B') which is said to constitute the infringement. But that does not lead to the conclusion that the inclusion of work 'A' in work 'B' is, or is not, "incidental" for the purposes of section 31(1) of the Act. That, as it seems to me, turns on the question: why – having regard to the circumstances in which work 'B' was created – has work 'A' been included in work 'B'? And, in addressing that question, I can see no reason why, if the circumstances so require, consideration should not be given as well to the commercial reason why work 'A' has been included in work 'B' as to any aesthetic reason."

Surely thinking where
to take the next selfie
The Court concluded that Panini's inclusion of club badges and the FAPL emblem in its stickers was not incidental because, when creating the image of the player as it appeared on the sticker or in the album it then sold, Panini intended to produce something which would be attractive to a collector. The image of a player in strip without his own club badge and the FAPL emblem would not be perceived as authentic by an informed collector, and therefore it would not be attractive to him/her. For this reason, the Court found it "impossible to say that the inclusion of the individual badge and the FAPL emblem [was] 'incidental'" [whether this conclusion is consistent with the extract from Laddie Prescott and Vitoria quoted above remains questionable in this Kat's opinion]

Things might be different for a portrait or a selfie, as these are often - if not most of the time - taken for non-commercial purposes and simply shared online as a testimony of the fact that one visited the National Gallery. Furthermore, for the defence to apply, in principle it would not make a difference whether posing in front of a certain painting was a deliberate choice or not.

However, considering the in-applicability of Section 62 to paintings and the ambiguities of Section 31, one cannot completely rule out that taking a photograph that, among other things, includes a copyright-protected work outside the permanent collection might be a breach of the National Gallery's own regulations, as well as – in certain cases - a copyright infringement. 

Yet, in an age in which mobile devices are everywhere and have actually forced the Gallery to change its own photography policy, how realistic is it to think that this or other similar institutions would sue their visitors (how many of them, all of them?) for copyright infringement for taking unauthorised pictures in front of their "restricted" paintings?

What do readers think?

15 comments:

patently said...

I dare say that Rumpole would enjoy running the argument that a selfie was neither artistic nor original, purely to see the look on his client's face.

(Sadly, it is an argument which is most unlikely to gain any serious traction)

G said...

I'm not an IP expert but why can't a painting count as a work of artistic craftsmanship for the purpose of CPDA 1998, s 62? If it was part of the permanent collection in a fixed location surely that is no different to a statue in a square (it's only held there by it's own weight or bolts and could easily be moved). What degree of permanence would be required for the freedom of panorama to bite?

Anonymous said...

Is freedom of panorama about taking photos or about publishing such photos? It appears from the post that taking photo of a book in a bookstore (book cover - copyright) /poster placed in a public place is not allowed. Am i right?

Eleonora Rosati said...

@G: Both paintings and works of artistic craftsmanship fall within the "artistic works" category, yet I doubt paintings could be considered as falling within works of artistic craftsmanship: see s4 http://www.legislation.gov.uk/ukpga/1988/48/section/4

@Anonymous on Thursday, 21 August 2014 15:12:00 BST: Freedom of panorama is about both taking a photo (s62 para 2) and communicating/making available/distributing it (s 62 para 3). As to photographing the cover of a book in a bookstore, I doubt anyone would claim copyright infringement, as no market for the book would be harmed by your picture (cf pictures of paintings, which may have a value per se)

Anonymous said...

This thread would seem to mirror the recent thread of possible copyright infringement with the social media posting of goal scoring.

Same considerations then of possible contract violations (as opposed to, or in conjunction with, copyright violations).

Eleonora Rosati said...

@Anonymous on Thursday, 21 August 2014 15:26:00 BST: indeed. On that, you might have seen that FAPL has said it would not sue those making goal vines: http://www.thelawyer.com/news/regions/uk-news/premier-league-lawyers-will-not-sue-fans-over-pirated-vine-videos/3024633.article?cmpid=inhou_478552

G said...

@Eleonora Rosati - thanks for the clarification. I see what you mean. It does seem like an odd distinction to make, but I suppose they wanted wiggle room on the idea of 'craft'

Bernard Horrocks said...

As ever, thanks Eleonora!

It's disappointing how The Telegraph appears to draw no distinction between the National Gallery and the National Portrait Gallery. Doh!

Exhibition no-photography restrictions can also be for contractual reasons too ("I will lend you my Constable to hang on your walls but you cannot photograph it under any circumstances" etc).

It doesn't follow by any stretch that a gallery like ours also owns the copyright in its collection works. Around 20,000 of Tate's 70,000 artworks are in copyright and of those only around 650 are Tate copyright (i.e. where we've perhaps bought the rights with the object or copyright has been assigned to us at some other point). Licences are in place for as many of the remainder as we've been able to trace rights holders for.

Section 62 of the 1988 CDPA is open to a bit of interpretation. Some folk say it should apply only to 3D items permanently situated (i.e. fixed / bolted / stuck / lodged / installed) in premises open to the public, whereas others broaden it out to include 3D items simply in a permanent public collection. I think the original intention of the section was so millions of folk photographing the Gherkin, Henry Moore sculpture outside Parliament, London Eye, John Lewis Hepworth etc didn't get sued.

My very best wishes,
Bernard Horrocks
Intellectual Property Manager
Chair, Museums IP Network
Tate Legal

Andy J said...

Eleonora, your link to Copinger & Skone James leads to the 2nd supplement which might mislead the casual reader into thinking it's a snip at £150, whereas of course the 16th edition of the main work, where the subject of incidental inclusion is discussed, is actually £685 (although this price includes the supplements). Since the second supplement was published in Nov 2013, and several important cases have been decided in the intervening period, those not blessed with deep pockets might prefer to wait for the third supplement to get more up to date analysis.

Eleonora Rosati said...

Sounds sensible Andy :-)

Charles said...

"Conservation"?
If this refers to the use of flash in galleries damaging exhibits, this has been an interesting, albeit slightly off-topic, debate over the years. The best answer now seems to be http://www.arthistorynews.com/articles/2936_Does_flash_photography_really_damage_paintings, or in short - 'no'.
(For the sake of clarity herein, the word 'flash' refers to the use of an electronic flash unit for photographic purposes, usable in connection with a camera, and not to male Roman statues, such as may be found in galleries).

Eleonora Rosati said...

Thanks Charles. The term "conservation" is indeed used by the NPG in its Photography Policy: http://www.npg.org.uk/about/gallery-planning-and-policies/photography-policy.php

Ashley Roughton said...

Freedom of panorama or freedom of paranoia?

I went to a restaurant recently and took a discrete photograph of my father (who was 80 that day) and apologised to the head waiter. He was nice about it and said "everybody does it now". Is it that bad? I suppose it is when photographing interferes with the purpose of the function space in the first place. But it is hardly a matter of copyright. Can't the kat tell us something about the last resort of all copyright and confidential information lawyers (and cases) - trespass?

Ashley

Eleonora Rosati said...

Hi Ashley, all copyright involves a bit of paranoia I guess, so you are certainly free to indulge in it.

As to confidence, it seems that it can go where copyright can't (just think of the Creation Records case), even if "everybody breaches it now." At any rate, I think there is a higher number of situations when taking the picture of your father might be just a breach of confidence, rather than (also) a case of copyright infringement.

Anonymous said...

I am thoroughly saddened by the fact that private photography may be prevented via copyright. Photography anywhere (and clandestine sound recording at concerts) are merely aids to memory for the individual.

True, some of these "fixations" may somehow later appear commercially and it is also true that it is the easiest to stifle this at the moment of fixation, but it is a sick sign and pandering to the convenience of the rights holders to prevent a normal, human activity.

It would be much fairer if those whose rights have been infringed by commercial use went after the infringers, rather than the naïve individuals.

The whole concept of "copy" and the associated rights is in dire need of re-thinking and re-structuring in view of the technical development, which makes "fixation" so easy that it is an insult to the intelligence of ordinary individuals to maintain that "normal use" of equipment getting cheaper and cheaper should be preventable.

As to a contract with the Devil, that you may show his privately owned Constable in a publicly owned gallery, but the public must not photograph it, it is precisely that, and we should not enter into contracts with the Devil. The general public must wait until the Devil's heirs decide that they want to sell his Constable, for instance by public auction and for instance to a publicly owned gallery.

Kind regards,


George Brock-Nannestad

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