[Foundation-l] About that "sue and be damned" to the National Portrait Gallery ...

[Robert Rohde]

On Fri, Jul 10, 2009 at 5:05 PM, Thomas Dalton<thomas.dalton at 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