The National Portrait Gallery in London has threatened to take legal action against a U.S. citizen who posted images of the gallery's paintings of rich, white, and dead British people onto Wikimedia Commons. The NPG sent a detailed letter to Wikimedia contributor Derrick Coetzee claiming that his actions constitute copyright infringement, database infringement, and breach of contract under U.K. law. The NPG said in its letter that it would not take legal action against Coetzee if he removes the images from the site, as well as deletes all other copies of the images he possesses, by July 20. Coetzee said on his Wikimedia Commons page that he is being represented pro bono by the Electronic Frontier Foundation's Fred von Lohmann.
Although Coetzee's posts would likely be considered fair use in the U.S., the concept of fair use (called "fair dealing" under the U.K. statute) is not as broad in the U.K. Across the pond, the fair dealing exception applies only to certain non-commercial uses, and differs depending upon the type of work at issue. Accordingly, it's debatable whether Coetzee's use fits within the fair dealing exception.
As Wikimedia Foundation's Erik Moeller noted in a blog post, "It seems obvious that a public benefit organization and a volunteer community promoting free access to education and culture should be allies rather than adversaries." But the NPG claims Wikimedia has been unresponsive to its attempts of reaching a compromise.
The NPG told TechRadar.com that its main problem with Coetzee's uploads is that the images are high resolution, which the museum fears will cause a loss in licensing income. The gallery says it would be happy to provide lower-resolution images for Wikimedia's use, as some other museums have done. The NPG says it was only forced to send the letter to Coetzee when Wikimedia did not respond to its request to discuss the matter, but Wikimedia maintains NPG never offered to reach such an agreement.
Such a compromise might not seem to be such a bad idea -- until you compare a lower-resolution image the NPG implies it would approve of with a high-resolution image uploaded by Coetzee. The higher-resolution image allows viewers to scrutinize the portrait even more closely than NPG's own site allows -- which is useful for anyone interested in art history and painting technique who can't make the trip to Trafalgar Square.
Nevertheless, Wikimedia stated that it is open to compromise with respect to specific images, but that it does not believe Coetzee violated any applicable law in uploading the images. Summarizing Wikimedia's position, Moeller states:
The Wikimedia Foundation sympathizes with cultural institutions' desire for revenue streams to help them maintain services for their audiences. And yet, if that revenue stream requires an institution to lock up and severely limit access to its educational materials, rather than allowing the materials to be freely available to everyone, that strikes us as counter to those institutions' educational mission.
(Courtney French is a rising second-year law student at Georgetown University and a CMLP legal intern.)