Art Isn’t Free: The Tragedy of the Wikimedia Commons

7/17/09Follow @wroush

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owned by everyone—in which case the gallery has no right to prevent sharing and reproduction of the works?

The Wikimedia Foundation has a firm stance on the question. The foundation says its position “has always been that faithful reproductions of two-dimensional public domain works of art are public domain, and that claims to the contrary represent an assault on the very concept of a public domain.” It’s supported in this position by a 1999 New York District Court decision, Bridgeman Art Library v. Corel Corp., in which a federal judge ruled that a photograph intended merely as a faithful copy of a work of art lacks originality, and therefore isn’t entitled to copyright protection. If the work itself is in the public domain, under this interpretation, then the photograph is too.

The Bridgeman decision obviously doesn’t have any force in the United Kingdom, where the presumption is still that a photograph of a painting is copyrighted. Farrer & Co. make this argument at length in their letter—and a coalition of UK museums called the Museum Copyright Group goes even farther, arguing that the Bridgeman ruling “is of doubtful authority even in the USA.” (District court decisions aren’t necessarily binding on other courts, and the Supreme Court has never ruled on the question.)

But assuming that courts in the UK, where the images were made and stored, will find that Coetzee’s actions are an open-and-shut case of copyright violation, it still won’t be simple for the National Portrait Gallery to enforce its claims, given that Coetzee is an American citizen and that the Wikimedia Foundation’s Web servers are in the United States. Enforcing UK copyrights in the United States is “possible to do, but it can be quite expensive,” Struan Robertson, a copyright attorney at London-based law firm Pinsent Masons, told the UK tech news site The Register.

So untangling all the legalities may take a while. That will give Coetzee, the Wikimedia Foundation, and the EFF plenty of time to rally support around their argument, which will likely be that the decision in Bridgeman should be the model for copyright policy around the world, and that the National Portrait Gallery, by attempting to assert its copyright in the images, is showing itself to be an enemy of the free exchange of ideas.

Houses at Auvers, Vincent Van Gogh

Houses at Auvers, Vincent Van Gogh

But it would be unjust to paint the museum as the villain in all this. Before there are any digital images to be exchanged, somebody has to make them—and that costs money. The National Portrait Gallery says it has spent over £1 million over the last five years to digitize its collection, which now consists of more than 60,000 online images. Many other museums are undertaking similar efforts, including Boston’s Museum of Fine Arts (MFA), whose collection of more than 160,000 online images is believed to be the world’s largest.

Having made high-resolution images of their treasured artworks, museum curators would probably like nothing better than to give them away. But they can’t afford to. As you may have noticed, our non-profit cultural institutions aren’t exactly swimming in cash, especially now that the the economic crisis has hit their usual donors so hard. For art museums, licensing images for use on posters, T-shirts, book covers, calendars, textbooks, and all the rest provides a vital revenue stream. If anyone could make a coffee mug showing Van Gogh’s Houses at Auvers without having to pay the MFA, that stream would dry up, and the museum would have a harder time making its art available at all.

The National Portrait Gallery put the situation this way, in a statement e-mailed to one inquirer: “The Gallery supports Wikipedia in its aim of making knowledge widely available and we would be happy for the site to use our low-resolution images, sufficient for most forms of public access, subject to safeguards…The Gallery is very concerned that … Next Page »

Wade Roush is a contributing editor at Xconomy. Follow @wroush

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  • Jussi-Ville Heiskanen

    What amuses me personally most about this whole thing is that the museums are wanting to have it both ways. At first the argument against letting Public Domain be Public domain was that if not curated by museums in a painstaking fashion, what would spread on the net would be poor quality images. Now the shoe is on the other foot, and the museums would be *ever so happy* to have poor quality images spread on the web, as long as they had a wholly unjustified monopoly on high quality reproductions that are faithful to a Public Domain work.

  • http://professor-moriarty.com/ overton

    Technology has advanced to a stage where it is now possible replicate these works using 3D laser scanning and 3D printing. The result being that you can then make copies which are exact replicas. One page 2 of this article is a Van Gogh painting, these replicas would faithfully reproduce the exact painted surface.

    The final digital files to control the 3D printer would fall even further into the category of “slavish copy”, and in wiki-logic should be made freely available, despite the fact that the act of creating them would cost £1000s.

    Who would risk such an enterprise?

  • anon

    There is one major point that everyone seems to be ignoring: what if the paintings are not worth it?

    I mean, people have heard of these famous painters; it’d definitely be nice to be able to freely use their digitised work, but do people really care about it so much that they’d be willing to sacrifice their public domain rights in order to get them?

    And if the public cared so much, wouldn’t the museums be getting enough money from them not to have to resort to looking for commercial revenue?

    I say, this whole art thing is grossly overrated.

  • Eivind Kjørstad

    Actually, I think your central thesis, that if it’s permissible to freely copy such high-resolution photocopies of PD-works, then nobody will want to finance the digitization of such work is flawed.

    By your own numbers 60K paintings where digitized for a million, which isn’t infact very expensive, it comes out as 15/painting.

    My bet is, there are plenty of Wikipedians and others who’d gladly produce high-quality digitizations of paintings, if one would only LET THEM. Witness how Project Gutenberg has digitized thousands of PD-works, and scanning, ocring and manually correcting the unavouidable OCR-errors is a process that is MUCH more work than taking a professional digital photo of a painting.

    Essentially, the museums position seems to be “If we took the photo, you may not copy it, and you may not take the photo yourself”, which comes pretty close to saying “This work may not be available on wikipedia at all, despite it being in public domain”.

  • Amateur6

    I agree in principle with Eivind — perhaps this will move duplication efforts out of the hands of (private, for-profit) museums and into the hands of (public, non-profit) organizations such as Project Gutenburg.

    Project Warhol, anyone?

    (you know, for the whole “multiple copies” thing)

    And by the way, Wade, are you sure you’ve completely squared this post with your position on Google Book Search? Seems to me they may be more comparable than you might think.

  • pianom4n

    You act like the US and Wikipedia are the free riders here, which is just false. Do you know how many US taxpayer dollars go to putting works in the public domain? Try billions. Everything ever made the Federal Government, meaning everything from the Library of Congress, everything from NASA, etc.

    The free riders are smaller and third world countries who don’t contribute works like this. (not that I have a problem with it)

    And Eivind os 100% correct. This would nowhere near a problem if you were allowed to take photos (without flash) of the paintings. But they don’t. They’re trying to impose a perpetual copyright, and that’s the real problem.

  • mjkerpan

    Comparing the situation of the National Portrait Gallery to that of, say, the MFA in Boston is a bit disingenuous. First, the NPG is a public, governmental entity, rather than a private (albeit nonprofit) one. The NPG’s situation is rather more akin to that of the Library of Congress’s or the Smithsonian’s art collections, both of which are made available (in high resolution, even) for all non-commercial use. In some cases, those institutions are even the ones who have POSTED the materials in question. If such a strategy works for the Smithsonian and LoC (which also have free admission, btw), why can’t it work for the NPG in the UK? Is UK governmental funding for the arts even worse off that in the US or something?

  • HaeB

    According to the NPG’s 2007/2008 annual, the surplus from their reproduction rights sales (the “Picture Library”) was £130,000, less than 1% in size compared to the overall budget of £16,610,000.

    And that includes all media. According to a 2009 Freedom of Information Act request, the NPG’s income from licensing to other websites was between £10,000 and £19,000 during the last five years.

    How exactly is that “a vital revenue stream”?

  • http://www.dailygrommet.com Jules Pieri

    The biggest issue here is that the horse is out of the barn and it’s really hard to get him back in. You address this in the article….the sheer availability of digital content has devalued it. I spent a few months in a startup that was trying to provide a legitimate, easy platform for people to “do the right thing”–share their images, writing, photos, videos under their terms (Creative Commons licenses) and also be compensated when desired. It was a long row to hoe given the basic psychology of free. I have to admit that even after working in this business, I once used a photo in my blog without proper credit to the creator, and she rightly busted me. So even KNOWING all the ins and outs of this issue, I behaved badly. Most people don’t even know about the issues!

  • http://professor-moriarty.com/ overton

    pianom4n This would nowhere near a problem if you were allowed to take photos (without flash) of the paintings.

    If you’d be satisfied with a photo taken without flash, you ought to have been satisfied with the medium resolution files they did provide. At least they don’t have parallax and perspective problems, or incorrect colour.

    As for the LoC images the vast majority of those online are 1K along the longest side.

    HaeB How exactly is that “a vital revenue stream”?

    If they’d make a lot they’d be accused of profiteering, if they make a little its not worthwhile. Damned if they do damned if they don’t.

  • Joey Castellana

    The free-give-me-free crowd are, of course, simply sad.

    Computer geeks, the sexless set, people who think text messages are relationships and today’s “music” is art .. the great unwashed slightly chubby masses of the free-give-me-free crowd particularly prominent in the USA with their 44 ounce big-slurp-eee drinks, Clif Bars and blogs.

    Socialists, communists, the free-give-me-fee crowd, simple burglars, fat wanabees who can’t make the team but complain .. it’s all the same.

    How do they sleep at night … not very well. They are desperate to run counter to the entire thrust of human creation; they are desperate to “take down” the awake, creating, leaders.

    But they can’t because the total nature of humans is to create rather than steal; the free-give-me-free crowd don’t sleep.

    So they turn again to the Excitment of writing on computer bulletin boards, ranting (ultimately to themselves), masterbating hopelessly and .. again .. tweeting, twitting, ‘booking and posting.

  • Fritz

    While you are rather poetic, Joey, I fail to see an innate human desire for copyright–in fact the history of folk music suggests that reworking songs as you like is the most commonplace.

    But that’s not the point. If America chooses not to support a strong public domain that is it’s right. We are not limiting your ability to practice the law as you want _in your country_. If you choose to support a neutered public domain which puts duplication as a copyrightable act then that is your choice but don’t expect other countries to respect that. In the meantime take the gift of our federally funded public domain NASA galleries as a gift from a nation which (at lease sometimes) promotes the idea that a strong public domain is vital for society. But after a work has been published for a hundred years I fail to see why someone has a monopoly over profits derived from that work. It’s not a question of wanting everything free, it’s about being able to reasonably put images of public domain works online. Let the UK prosecute its own citizens who break their laws, that is not the job of the American government to enforce.

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  • J. van Doesburg

    There is some scientific discussion on the commons. In general the issue is not ” free or not free “, but sustainability. The museum’s argument is of course to have their contrribution to the commons returned (in order to be able to do another contribution for example), where as Coetzee’s and Wikimedia do not offer an argument how they could sustain in the long term the museums contribution. Elvind’s suggestion could be a way out, and recently already put into practice at van Gogh Museum in Amsterdam. Still I think Coetzee and Wikimedia should make an offer to the museum before can put the pictures at a public space. In general maintaing the commons means hard work, and sometimes also some kind of investment.

  • http://rolfblijleven.blogspot.com Rolf Blijleven

    We read: Coetzee copied 3,300 high-resolution images from the NPG’s online database, some of them [high resolution]. It is common practice for museums to put some digital image in low resolution on the web. High resolution images are normally kept under much tighter control, not accessible to the public, but to employees and e.g. researchers.

    So the question is: did Coetzee have permission? How did he get access to them? Coetzee studies computer sciences. Has he been hacking, or writing a tool to harvest images from sites, unbeknownst to the owners?

    Even if NPG has been negligent, they still are the proprietors of the digital images. So Coetzee and WikiMedia may argue, but they should settle for the low-res images that NPG does want to share.

  • http://www.xconomy.com/author/wroush/ Wade Roush

    Thanks, everyone, for your trenchant comments.

    @anon: I think you’re a bit too dismissive about the art, but thanks for the reminder that at bottom, this is all about the art itself — and if no one is interested in talking about the actual portraits, that may say something, about us or about the art or both…

    @eivind, @amateur6, @pianom4n: I agree it’s problematic that no one else is allowed make copies of the NPG images. It’s hard to see what real-world effect the “public-domainness” of the images has under these circumstances.

    @amateur6: I admit I have not squared this post with my post on Google Book Search. My thinking on Google Book Search has been evolving and I intend to get around to writing a new column about that soon. In short, I’m still of the opinion that we should give a lot of credit to anyone willing to do the work of scanning/digitizing/reproducing old materials (Google scanning old books in that case), but that doesn’t mean they should get monopoly control over the materials.

    @mjkerpan, @haeB: I don’t pretend to understand the NPG’s finances. There is a tradition in the U.S. (admirably upheld by NASA) of putting most images obtained at public expense in the public domain. If the NPG says they need the revenue from the licensing of these images to fund further digitization, they’re likely telling the truth.

    @J. van Doesberg: Yes, that’s exactly what I’m saying. This is about sustainability. We need to rise above the Napsterish debate over the place of copyright and talk about how to actually support the sharing of this work.