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?