On Fri, Jul 10, 2009 at 5:05 PM, Thomas Daltonthomas.dalton@gmail.com wrote: <snip>
I don't know as much about UK copyright law as perhaps I should, given my choice of hobby and my location, but I would be surprised if there was enough creativity or work involved in taking a photograph of a painting for it to be independently copyrightable.
There are serious legal disagreements about this, but people have argued for some time that the UK is perhaps the purest example of a "sweat of the brow" state with respect to their copyright law. In other words, the prevailing view of many has been that UK law rewards an author's effort irrespective of creativity (neither "creative" nor "creativity" appear in the UK statute at all).
There has never been a good test case, but serious people have opined that Bridgeman v. Corel (the US case establishing PD-Art for photographs of PD works) would have been decided the opposite way in UK courts. In other words, there have been opinions that the effort involved in creating high quality photographs is by itself sufficient to embue that photograph with copyright protection in the UK even if the work being photographed is PD. However, though there is no statutory requirement for creativity, there is one for originality. Hence, most of the arguments in the UK hence turn on whether such a photograph would qualify as "orginal" or not. Some people believe that merely moving the image into a new medium is sufficiently novel to qualify for protection, while others dispute this. Again, there isn't a lot of guidance on this point.
As repugnant as the conclusion might be, it is entirely possible that the NPG could win this case under UK law and establish that photographs of PD works are definitively not PD in the UK. It's not a sure thing, and comptent legal representation would no doubt make an important case out of it, but my reading of the commentaries in this area would such suggest that a victory by the NPG is entirely possible (and perhaps more likely than not) assuming the issue is decided based solely on UK copyright laws.
-Robert Rohde