User:Dcoetzee/NPG legal threat

Below is a letter I received from legal representatives of the National Portrait Gallery, London, on Friday, July 10, 2009, regarding images of public domain paintings in Category:National Portrait Gallery, London and threatening direct legal action under UK law. The letter is reproduced here to enable public discourse on the issue. For a list of sites discussing this event see User:Dcoetzee/NPG legal threat/Coverage.

Update: I am now being represented in this matter pro bono by Fred von Lohmann, a senior intellectual property attorney for the Electronic Frontier Foundation.

• Coverage and discussion of this event
• My attorney's response to this letter

I have received no response from them since the response letter was sent in 2009. For more recent developments, see en:National Portrait Gallery and Wikimedia Foundation copyright dispute.

Some other relevant resources:

• National Portrait Gallery site, National Portrait Gallery (London) on Wikipedia
• Farrer & Co site
• Bridgeman Art Library v. Corel Corp. on Wikipedia
• "Public Domain Art in an Age of Easier Mechanical Reproducibility", by Kenneth Hamma, Executive Director for Digital Policy, J. Paul Getty Trust.
• "Archives or Assets?", Peter B. Hirdle, President of the Society of American Archivists

---

from	Amisquitta <(e-mail removed)>
to	Dcoetzee <(e-mail removed)>
date	Fri, Jul 10, 2009 at 9:33 AM
subject	The National Portrait Gallery: Legal Issues

Dear Mr Coetzee

This is a message from Farrer & Co LLP (Ref: JPW/ALM) 66 Lincoln's Inn Fields, London, WC2A 3LH, UK). We are a firm of London based solicitors (lawyers) who act for the National Portrait Gallery in London. It has been brought to the attention of our client that in March 2009, without our client’s consent, you:

(a) accessed our client’s database of images;

(b) downloaded more than 3,300 high resolution images from our client’s database;

(c) circumvented the technical measures that our client put in place on its website to prevent those high resolution images from being copied; and

(d) uploaded those images to the Wikipedia website.

In doing so you have acted unlawfully in a number of different ways which we shall describe in more detail below.

Our client contacted the Wikimedia Foundation in April 2009 to request that the images be removed but the Wikimedia Foundation has refused to do so leaving our client with no option but to commence legal proceedings against you personally through the UK Courts. The purpose of this message is to inform you of the nature of our client’s claims against you and to give you an opportunity to settle the claims before legal proceedings are commenced.

Copyright in Photographs of Paintings

s.1(1)(a) of the Copyright, Designs and Patents Act 1988 (as amended) (“CDPA”) provides as follows (emphasis added):

“Copyright is a property right which subsists in accordance with this Part in the following descriptions of work—

(a) original literary, dramatic, musical or artistic works,

s.4(1) of the CDPA provides as follows (emphasis added):

“In this Part “artistic work” means—

(a) a graphic work, photograph, sculpture or collage, irrespective of artistic quality,

The images that you downloaded from our client’s website and then uploaded to the Wikipedia website are all original photographs taken within the last thirty years on behalf of our client. The images are therefore copyright works under s.1(1)(a) of the CDPA and the copyright in those images belongs to our client.

There is a common misconception that, as a result of the decision in Bridgeman v. Corel, copyright can never subsist in a photograph of a painting. That conclusion is erroneous because:

1. the judgment in Bridgeman v. Corel is a decision of the US Courts and therefore, whilst it might amount to a precedent under US law, it has no effect under UK law; and

2. in the UK, whilst the precise circumstances that gave rise to the Bridgeman v. Corel litigation have never been the subject matter of a claim decided before the UK Courts, practicing lawyers and legal academics alike generally agree that under a UK law analysis the judgment in Bridgeman v. Corel is wrong and that copyright can subsist in a photograph of a painting.

For the avoidance of doubt, the allegation of copyright infringement made against you below is an allegation under UK law. Furthermore, 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.

Infringement of Copyright

s.16(1) of the CDPA provides as follows (emphasis added):

“The owner of the copyright in a work has, in accordance with the following provisions of this Chapter, the exclusive right to do the following acts in the United Kingdom—

(a) to copy the work (see section 17);….

(d) to communicate the work to the public (see section 20);…

and those acts are referred to in this Part as the “acts restricted by the copyright”.”

s.16(2) of the CDPA provides as follows (emphasis added):

“Copyright in a work is infringed by a person who without the licence of the copyright owner does, or authorises another to do, any of the acts restricted by the copyright.”

By downloading our client’s copyright works and then uploading them to the Wikipedia website in breach of our client’s website terms you have breached our client’s copyright under sections 16(1)(a), 16(1)(d) and 16(2) of the CDPA.

Furthermore, by posting the images to the Wikipedia website you are expressly authorising users to themselves make further copies of those images on their own screens and hard drives in the manner permitted by the GNU Free Documentation License. Therefore, by authorising that use you are also primarily liable under 16(2) of the CDPA for every subsequent copyright infringement committed by every member of the public that re-uses those images anywhere in the world.

Database Right in Our Client’s Database of Images

s.3(A)(1) of the CDPA provides as follows:

“In this Part "database" means a collection of independent works, data or other materials which -

(a) are arranged in a systematic or methodical way, and

(b) are individually accessible by electronic or other means.”

Our client’s website includes a searchable database of over 60,000 carefully chosen, curated and watermarked images. There can therefore be no doubt that our client’s database of images is a “database” for the purposes of s.3(A)(1) of the CDPA.

s.(13)(1) of the Copyright and Rights in Databases Regulations 1997 (“the Regulations”) provides as follows:

“A property right ("database right") subsists, in accordance with this Part, in a database if there has been a substantial investment in obtaining, verifying or presenting the contents of the database.”

For the reasons given above there can be no doubt that database right subsists in our client’s database under s.(13)(1) of the Regulations.

s.14(1) of the Regulations provides as follows:

“…the person who takes the initiative in obtaining, verifying or presenting the contents of a database and assumes the risk of investing in that obtaining, verification or presentation shall be regarded as the maker of, and as having made, the database.”

s.15 of the Regulations provides as follows:

“The maker of a database is the first owner of database right in it.”

Therefore, there can be no doubt that our client is the maker of our client’s database and therefore the owner of the database right in our client’s database under sections 14(1) and 15 of the Regulations

Infringement of Database Right

s.16 of the Regulations provides as follows (emphasis added):

“(1) Subject to the provisions of this Part, a person infringes database right in a database if, without the consent of the owner of the right, he extracts or re-utilises all or a substantial part of the contents of the database.

(2) For the purposes of this Part, the repeated and systematic extraction or re-utilisation of insubstantial parts of the contents of a database may amount to the extraction or re-utilisation of a substantial part of those contents.”

By downloading over 3,300 of our client’s images and then uploading them to the Wikipedia website in breach of our client’s website terms you have breached our client’s database right under s.16 of the Regulations.

Unlawful circumvention of technical measures

s.296ZF(1) of the CDPA provides as follows:

“In sections 296ZA to 296ZE, "technological measures" are any technology, device or component which is designed, in the normal course of its operation, to protect a copyright work other than a computer program.”

s.296ZA(1) of the CDPA provides as follows:

“This section applies where -

(a) effective technological measures have been applied to a copyright work other than a computer program; and

(b) a person (B) does anything which circumvents those measures knowing, or with reasonable grounds to know, that he is pursuing that objective.

As you know, the images from our client’s website that you have copied were made available from our client’s website using “Zoomify” software. As you know, Zoomify is an application that is used to publish photographic images in such a way that an entire high resolution image is never made available to a user although high-resolution extracts or “tiles” are made available one-at-a-time. Our client used the Zoomify technology to protect our client’s copyright in the high resolution images.

By deliberately posting images from our client’s website to the Wikipedia website in which the Zoomify software has been circumvented you have therefore acted in breach of section 296ZA(1) of the CDPA.

Breach of Contract

Clearly visible on every page of our client’s website where an image can be seen there is a “Use this Portrait” menu on which two links are clearly visible:

• “License this image” and
• “Use this image on your website”

If you click on either of these links the first thing that you are told is that you need permission to reproduce our client’s images. Your downloading of our client’s images and subsequent uploading of those images to the Wikipedia website has therefore been carried out in direct contravention of the clear rules and this amounts to a breach of contract.

Jurisdiction of UK Courts

Whilst we know that you are based in the United States of America, your activities nevertheless give rise to claims under UK law because:

1. The servers on which our client’s website is hosted are based in the UK and therefore, technically, your unlawful downloading (which give rise to some of the copyright, database right and breach of contract claims described herein) took place in the UK; and

2. The pages of the Wikipedia website on which you have reproduced our client’s images are clearly directed at (amongst others) UK users of the website.

Next Steps

It should be clear to you that our client has grounds to commence proceedings against you in respect of your numerous breaches of their legal rights. If our client were to sue you through the UK Courts our client would be entitled to damages, injunctions and the recovery of its legal costs. However, our client is very keen to avoid commencing proceedings against you if this can be avoided. Our client has already indicated, in writing, to the Wikimedia Foundation that provided that all of its images are removed from the website it will not take any further action. However, the Wikimedia Foundation has ignored this request which requires our client to seek its remedy directly from you.

If, by 20 July 2009, you provide undertakings in writing in the manner described below, our client will refrain from taking any legal action against you. The undertakings that our client requires are undertakings to immediately:

(a) permanently remove from the Wikipedia website all images derived from our client’s website that you have posted to the Wikipedia website;

(b) permanently remove from any other website any images derived from our client’s website that you have posted;

(c) permanently delete from the hard drive of your computer (or any computer upon which you or anyone from the Wikiemedia Foundation have stored them) all images that you have derived from our client’s website;

(d) permanently delete from any recordable or storage media (including all discs, memory sticks, memory cards, phones and/or other devices) in your possession or control all images that you have derived from our client’s website;

(e) refrain in the future from downloading or uploading/posting any images derived from our client’s website;

(f) refrain in the future from circumventing the technical measures that our client uses to protect its copyright work  ; and

(g) refrain in the future from breaching any of the terms of use on our client’s website.

If you provide these undertakings by the deadline given above our client will refrain from demanding damages, injunctions and the recovery of its legal costs from you. If you do not provide written undertakings in the manner required by our client by the deadline given above our client reserves the right to issue proceedings against you and to seek damages, injunctions and the recovery of its legal costs from you.

Our client remains willing to enter into a dialogue with the Wikimedia Foundation to discuss terms upon which low-resolution images of paintings in its collection can be made available on the Wikipedia website and our client will continue to write to the Wikimedia Foundation with requests for discussion. However, to date, the Wikimedia Foundation has ignored our client’s attempts to negotiate this issue, preferring instead to take a more harsh approach that one would expect of a corporate entity.

Please note that, at the moment, the only method that we have of communicating with you is the Wikipedia mail service. It would be far more efficient if we could correspond with you by email and by post. We therefore request that you respond to this request by email to (email removed)@farrer.co.uk; (email removed)@farrer.co.uk and by post to Farrer & Co (Ref: JPW/ALM), 66 Lincoln’s Inn Fields, London, WC2A 3LH, United Kingdom and provide valid email and postal addresses so that we can send you a formal copy of our client’s letter of claim.

We look forward to hearing from you.

Yours faithfully

Farrer & Co LLP (Solicitors)

---

This e-mail was sent by user "Amisquitta" on the English Wikipedia to user "Dcoetzee". It has been automatically delivered and the Wikimedia Foundation cannot be held responsible for its contents.