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

[Andrew Lih]

On Sat, Jul 11, 2009 at 8:52 AM, Robert Rohde<rarohde at gmail.com> wrote:
> 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.

Yes, and the letter from NPG seems to assert that:

"...we can confirm that every one of the images that you have copied
is the product of a painstaking exercise on the part of the
photographer that created the image in which significant time, skill,
effort and artistry have been employed and that there can therefore be
no doubt that under UK law all of those images are copyright works
under s.1(1)(a) of the CDPA"

This is where in the US, Bridgeman v Corel established that a
"slavish" reproduction of a PD work does not constitute a new work
that can be  protected by copyright.

-Andrew