Wednesday, 9 December 2015

Copyright infringement and public domain artworks: German museum sues Wikimedia

Last week Wikimedia announced that it is being sued by a German museum for copyright infringement after 17 images of public domain works of art were uploaded to Wikimedia Commons.

Reiss Engelhorn Museum © Rudolf Stricker/Wikimedia

The works of art in question are housed in the Reiss Engelhorn Museum in Mannheim, one of the largest publicly-owned museums in southern Germany. Those works are no longer protected by copyright. However, German copyright law may apply to photographs of public domain works, depending on factors such as the amount of skill and effort exercised, the creativity and originality of the photograph, and the actual art itself. The museum asserts that the images taken of those works are new creations protected by copyright as the photographer exercised the requisite time, skill and effort.

The lawsuit sheds light on shifting copyright licensing practices by museums and cultural institutions towards wider public access and use. Although licensing image reproduction rights has traditionally provided a significant stream of revenue for museums and galleries (for example, the National Portrait Gallery reported £334,000 in revenue from reproduction rights in 2011/12), institutions have increasingly provided free online access to their collections under the terms of Creative Commons (CC) licences. These range from the CC0 “no copyright reserved” licence, which effectively means relinquishing all copyright and similar rights held in a work and dedicating those rights to the public domain (as used by Amsterdam’s Rijksmuseum, which has provided free online access to all its paintings and granted the right to download and use reproductions) to the CC BY “attribution” licence, whereby licensees may copy, distribute, display and perform the work and make derivative works if they credit the author or licensor (as used by Denmark’s Statens Museum for Kunst in relation to its digital images and videos).

These policy changes in favour of wider copyright licensing models may have been influenced by case law: the 1999 case of Bridgeman Art Library v Corel resulted in a ruling that exact photographic copies of public domain images could not be protected by copyright in the United States because the copies lack originality, a decision that has been strongly debated by experts ever since. Although this decision is not technically binding upon UK courts, the New York court follows UK Privy Council dicta from Interlego v Tyco Industries: "skill, labor or judgment merely in the process of copying cannot confer originality”.

It is perhaps because of these ambiguities in legal application that the 2009 dispute between the National Portrait Gallery and Wikimedia, where over 3000 images of public domain artworks from the NPG’s website were uploaded to Wikimedia, ended before it reached the court. At the time the NPG said it was "concerned that potential loss of licensing income from the high-resolution files threatens its ability to reinvest in digitisation". Nonetheless, in 2012 it began to make changes to its image licensing policy, allowing 53,000 low-resolution images to be downloaded free of charge for non-commercial uses via a Creative Commons licence.

William Wilberforce by Sir Thomas Lawrence, oil on canvas, 1828
© National Portrait Gallery, London

The European Commission has expressed its support of such initiatives: “it is important to stress the importance of keeping public domain works accessible after a format shift. In other words, works in the public domain should stay there once digitised and be made accessible through the internet.” This was reinforced by the Europeana Charta of 2010 that reads: “No other intellectual property right must be used to reconstitute exclusivity over Public Domain material. The Public Domain is an integral element of the internal balance of the copyright system. This internal balance must not be manipulated by attempts to reconstitute or obtain exclusive control via regulations that are external to copyright”.

Meanwhile, Wikimedia’s lawyers have appealed to directly to public sentiment, declaring that restricting the dissemination of images of public domain works “impoverishes the cultural heritage of people worldwide” and “prevents people from exploring our shared global cultural heritage”, whilst undermining the role of copyright laws as a means of rewarding creativity and originality. It will be interesting to see whether the German court's approach in the Reiss Engelhorn Museum lawsuit upholds this view or leads to a reversal of the wider sharing of public domain works.

Wikimedia’s statement can be found here.

A full list of the affected images can be found here.

The GLAM-Wiki initiative ("galleries, libraries, archives, and museums" with Wikipedia) helps cultural institutions share their resources with the world through collaborative projects. Learn more here.

Thursday, 3 December 2015

La Bella Principessa: a Da Vinci or a copy?

The famous British art forger, Shaun Greenhalgh, who was imprisoned between 2007-2012, recently claimed to be the author of La Bella Principessa, a painting attributed to Leonardo Da Vinci, with an estimated value of $150 million.

La Bella Principessa (image: Wikipedia)

The attribution to the Italian painter has always been strongly challenged.

The artwork was documented for the first time in 1998, when it was sold at a Christie’s auction as an early 19th century painting created in the style of the Italian Renaissance. The work was auctioned and sold for $21,800.

In 2008, however, some experts concluded that, in fact, the painting was a Da Vinci, and from that time the work was exhibited in Italy as an authentic Da Vinci painting. The portrait, still in private hands, is now widely thought to depict the 13-year-old Bianca Sforza, the daughter of Ludovico Sforza, the Da Vinci patron. The work would have been commissioned on the eve of her marriage in 1496.

This was confirmed in 2010, when Martin Kemp – one of the world's most famous Da Vinci experts, and emeritus professor of the History of Art at Oxford University – published a book entitled "La Bella Principessa: The story of the New Masterpiece by Leonardo Da Vinci," which stated that the painting was done by the famous Italian artist. It therefore followed that museums and other experts believed Kemp’s assessment.

Unfortunately, it may be that the Principessa is not be so Bella after all. Most recently, Greenhalgh published a book of his memoirs, entitled "A Forger’s Tale," where he claims to have painted the painting in 1978, when he was working in a Co-op supermarket – with a girl called Sally, a cashier who Greenhalgh claims to have known in Bolton in 1975, being the alleged inspiration behind the girl portrayed in the painting.

This story shows how Leonardo Da Vinci has moved to the centre of an inflated industry of fakes. It is also a cautionary tale that art evaluation cannot be based exclusively on scientific analysis, but should also include human eye and expertise. Indeed, Kemp's authenticity claim of La Bella Principessa rests on testing its papers and materials, which date back at least 250 years ago: post-Da Vinci, but quite before Greenhalgh.