Sunday 19 July 2009

National Portrait Gallery: photographs of paintings

There's been quite a bit of discussion about a legal threat made against a wikipedia administrator Derrick Coetzee. What he is accused of doing is of having accessed the National Portrait Gallery (NPG)'s website and downloaded some 3,300 high resolution images from its database. Solicitors acting for NPG have alleged 4 different causes of action:
  • breach of contract
  • unlawful circumvention of technical measures
  • infringement of NPG's database right
  • infringement of copyright

I'm not going to discuss the first 3 claims (if anyone is interested please let me know and I can write about them in another post). I will say that the first two claims seem hopeless to me to the point of being misconceived while the database claim depends on some facts about the NPG database and its extraction that I do not know.

There's also a question about jurisdiction. Mr Coetze appears to be based in the United States, the NPG is claiming under English law. Assume for the moment that that is not a problem.

In this post I'll try to explain what I think the legal controversy is all about. Obviously there's a huge debate about policy, both for the general question of whether photographs of paintings should be the subject of copyright in themselves, and also whether the NPG itself should or should not be allowing organisations like wikipedia to use its stock of digitised photographs. I'll leave that debate to another forum.


The problem starts with the requirement of s.1(1)(a) of the Copyright Designs and Patents Act 1988, which states that copyright "subsists" in an original literary, dramatic, musical or artistic works. If the work is not original then it cannot be the subject of copyright.

What does "original" mean? Everyone seems to agree that it doesn't cover the same ground as the terms "novel" or "inventive" do from patent law. Roughly speaking: copyright not about ideas but the expression of those ideas: you can copy the idea but not the expression.

In English law there seems to be two strands of thought on what "original" means:
  • "Original" implies "not copied". An author may adapt something that already exists but they must put enough "independent skill and labour" into that adaptation to result in something that is "original".
  • "Original" means that sufficient" independent skill and labour" has gone into the work. It really doesn't matter if its an identical copy of something that already exists provided that enough originality has gone into the copying.

Strand 1: "original" means "not copied"

An early, and classic attempt to get to grips with originality came in University of London Press Ltd v University Tutorial Press Ltd (1916). The court was considering whether university examination papers were "original". Peterson J said:
The word “original” does not in this connection mean that the work must be the expression of original or inventive thought. Copyright Acts are not concerned with the originality of ideas, but with the expression of thought, and, in the case of “literary work", with the expression of thought in print or writing. The originality which is required relates to the expression of the thought. But the Act does not require that the expression must be in an original or novel form, but that the work must not be copied from another work - that it should originate from the author.

No-one had suggested that the examination papers were direct copies of anything, but that the examiners had drawn on the general stock of knowledge in mathematics and so the papers were not "original". That means that the case did not directly concern whether or not there can be "original copying". Strictly speaking that part of the judgment is what lawyers call an obiter dicutum — something that is said in passing but which does not have binding authority on future cases (though it can be pretty persuasive).

In British Northrop Limited v Texteam Blackburn (1973), Megarry J cited University of London and added:
A drawing which is simply traced from another drawing is not an original artistic work: a drawing which is made without any copying from anything originates with the artist.

Again the case was actually about whether drawings were original enough, so again this is strictly an obiter dictum.

The saga continues: Northrop was approved by the Court of Appeal in Merlet v Mothercare (1986) (concerning copies of designs for a baby's rain cape) but again the main question was whether the designs were original enough.

The first strand of thought in English law culminates in the case of Interlego v Tyco Industries(1988) in which Lord Oliver said:

It takes great skill, judgment and labour to produce a good copy by painting or to produce an enlarged photograph from a positive print, but no one would reasonably contend that the copy painting or enlargement was an "original" artistic work in which the copier is entitled to claim copyright. Skill, labour or judgment merely in the process of copying cannot confer originality.

This decision comes with a health warning: it was made by the Judicial Committee of the Privy Council. Its decisions, though strongly persuasive, are not binding on English courts.

Strand 2: "original" means "with independent skill...."

The other strand of thought can be seen in the House of Lords decision in Walter v Lane (1900). The Times employed reporters who took a verbatim note of speeches made by Lord Rosebery, and transcribed the notes into copy that was published in the newspaper. The Times claimed copyright on the reports.

One of the issues before the court was whether the reporters were the "authors" of the reports. The House of Lords decided that they were.

At first sight this is a fairly unpromising authority since, at that time, copyright in works of literature did not have an originality requirement. Indeed Lord Halsbury was quite scathing about the use of the word "original" in the Court of Appeal. For that reason a succession of High Court judges have questioned whether or not Walter v Lane is still good law but the question was not decided until Express Newspapers v News (UK) (1990) when Sir Nicholas Browne-Wilkinson decided that Watler v Lane was good law after all.

In Express Newspapers there had been a relatively long interview (at least 8 hours according to the report) with a member of the Royal Family, excerpts of which had been reproduced by the newspaper. So the situation differed a little from the reporter taking down a speech situation in Walter v Lane.

The Court of Appeal gave its seal of approval to Walter v Lane in Sawkins v Hyperion Records(2005). The court made clear its strong disagreement with the first strand of authorities culminating in Interlego.

Most relevant for the NPG claim is that the court adopted a statement from a text called The Modern Law of Copyright which directly addresses the "picture of a picture" question (apologies for the long quotation but it is worth reading through):

However, whilst the remarks made in Interlego may be valid if confined to the subject matter then before the Privy Council, they are stated too widely. The Privy Council was there considering fairly simple technical drawings. This is a rather special subject-matter. While the drawing of such a work is more laborious than it looks, it is a fact that any competent draftsman (perhaps, any conscientious amateur) who sets out to reproduce it exactly will almost certainly succeed in the end, because of the mathematical precision of the lines and measurements. This should be contrasted with, eg a painting by Vermeer, where it will be obvious that very few persons, if any, are capable of making an exact replica. Now, assume a number of persons do set out to copy such a painting, each according to his own personal skill. Most will only succeed in making something which all too obviously differs from the original – some of them embarrassingly so. They will get a copyright seeing that in each instance the end result does not differ from the original yet it took a measure of skill and labour to produce. If, however, one of these renders the original with all the skill and precision of a Salvador Dali, is he to be denied a copyright where a mere dauber is not? The difference between the two cases (technical drawing and old master painting) is that in the latter there is room for individual interpretation even where faithful replication is sought to be attempted while in the former there is not. Further, a photographer who carefully took a photograph of an original painting might get a copyright and, if this is so, it is rather hard to see why a copy of the same degree of fidelity, if rendered by an artist of the calibre aforementioned, would not be copyright.
This statement (and Sawkins in general) make me somewhat nervous.

The logic seems to go: applying some (but not enough) skill to copying a painting exactly results in a copyright, therefore the application of considerable skill ought to. But exactly the question we are asking is: is skill all by itself the criterion, or does that skill have to produce something new? The statement in Sawkins seems to do nothing but beg that question and thus resolve nothing.

Furthermore, the case concerned a musicologist who produced modern performing versions of the work by the French composer de Lalande. Far from being an exact copy, considerable work was involved, which included writing parts that were missing from the original. To my inexpert eye it seems to me that Mr Sawkins's work was "original" in the sense of not being a copy. A French court considering the same works agrees with my conclusion. Arguably the interesting discussion about paintings and photographs by Lord Justice Jacobs in Sawkins is also obiter dicta.

I also have great difficulty with Walter v Lane for a completely different reason. In English law a work does not become subject to copyright until it is recorded in some permanent form ("fixation"). It is normally accepted that the person recording a work might not be the author. Where an author dictates to a secretary (for example) there is no doubt that the work is the author's not their secretary's. It is very common in the modern music industry for musicians to jam together to produce a work but for the recording to be done by someone else. Again no-one supposes that the musicians are not the authors of the work. That principle does not seem to sit well with Walter v Lane.

Even in Sawkins it is recognised that a slavish copy would not be original. The question would be one of degree.

Is it different for photographs anyway?

I have been deliberately ignoring a direct authority from way back in the nineteenth Century — Graves' Case (1869). The court of the Queen's Bench had to deal with a case involving 3 photographs of engravings. Under the Fine Arts Copyright Act 1862 originality was a criterion for copyright. Blackburn J said:

All photographs are copies of some object such as a painting or statue. And it seems to me that a photograph taken from a picture is an original photograph, in so far that to copy it is an infringement of this statute.


The difficulty with Graves' Case is that it does not explain what "original" does mean for a photograph. It seems reasonable to assume that some photographs must not be original, otherwise there would be no need to restrict copyright to original ones. Nor is it clear from the report what kind of photographs they were and how they were taken.


As far as I can see, the authorities look bad for Mr Coetze but not by any means hopeless. If I had to argue the case for him, I might proceed as follows:
  • Walter v Lane is not good law because it did not consider the question of originality
  • National Express and Sawkins address works which are not exact copies and so any statements within them are obiter.
  • In Walter v Lane and National Express there was no existing "work" to copy (since they both deal with words that had been said but not written down and therefore fixed).
  • London University Press has (via Northrop) been adopted by the Court of Appeal and so is at least as good an authority as Sawkins although strictly speaking they are all obiter
  • Graves' Case is a ruling on the particular facts of the case which cannot be easily determined from the report so we cannot tell what criteria were applied by the court making it a problematic authority
  • Lord Oliver's view in Interlego should be strongly persuasive
  • Other jurisdictions with which we are closely connected (eg much of the EU) and with which there is considerable trade (the United States) do not accept that a photograph of a painting which attempts to be as faithful to the original as possible can command copyright, hence as a matter of comity our law should be developed in that way.
I have not given the subject a great deal of thought, and it may be that there is more to be found by a more thorough search, but it seems to me that Mr Coetze's position is not ideal, but nor is it hopeless.

1 comment:

kg said...

I am interested in the first three points. Thanks in advance.