|
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?
(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?
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.
ReplyDelete(Sadly, it is an argument which is most unlikely to gain any serious traction)
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?
ReplyDeleteIs 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?
ReplyDelete@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
ReplyDelete@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)
This thread would seem to mirror the recent thread of possible copyright infringement with the social media posting of goal scoring.
ReplyDeleteSame considerations then of possible contract violations (as opposed to, or in conjunction with, copyright violations).
@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
ReplyDelete@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'
ReplyDeleteAs ever, thanks Eleonora!
ReplyDeleteIt'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
Sounds sensible Andy :-)
ReplyDeleteThanks 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
ReplyDeleteFreedom of panorama or freedom of paranoia?
ReplyDeleteI 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
Hi Ashley, all copyright involves a bit of paranoia I guess, so you are certainly free to indulge in it.
ReplyDeleteAs 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.
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.
ReplyDeleteTrue, 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