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

[Ray Saintonge]

Robert Rohde wrote:
> 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.

One should never be cocky about winning these things.  Once engaged the 
defence needs to be carefully crafted.  There is always uncertainty when 
a provision in the law has not been tested in the courts.

We also need to consider that NPG raised three areas of law: copyright, 
database rights and contract.  If all of them are raised in a lawsuit 
all need to be addressed.  Discussion so far has been limited to 
copyright.  Contract raises the question of what distinguishes a 
contract from terms of usage that must be sought on another page of the 
site.  The database rights claim may be the difficult one to overcome, 
though I note there that all the cited law is from regulations rather 
than statutes.  Copyright is a child of statutes; mere regulations may 
not expand these rights unless the statute provides clear authority to 
do so.

Ec