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Wikimedia Foundation, Wikimedia Deutschland urge Reiss Engelhorn Museum to reconsider suit over public domain works of art

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The following content has been republished from the Wikimedia Blog. The views expressed in this piece are those of the author alone; responses and critical commentary are invited in the comments section. For more information on this partnership see our content guidelines.

On October 28, the Reiss Engelhorn Museum in Mannheim, Germany, served a lawsuit against the Wikimedia Foundation and later against Wikimedia Deutschland, the local German chapter of the global Wikimedia movement. The suit concerns copyright claims related to 17 images of the museum’s public domain works of art, which have been uploaded to Wikimedia Commons. The Wikimedia Foundation and Wikimedia Deutschland are reviewing the suit, and will coordinate a reply by the current deadline in December.

The Wikimedia Foundation and Wikimedia Deutschland stand firmly in our commitment to making public works freely and openly available. Public institutions such as galleries and museums serve a similar mission, and have historically been our allies in making the world’s knowledge accessible to all. With this lawsuit, the Reiss Engelhorn Museum is limiting public access to culturally important works that most of the world would otherwise not be able to access.

The paintings, portraits, and other works of art at issue in this case are housed in the Reiss Engelhorn Museum, but exist freely in the public domain. However, German copyright law may apply to photographs of works in the public domain, depending on a number of different factors, including the artist who created the work, the amount of skill and effort that went into the photograph, creativity and originality in the photograph, and the actual art itself. The Reiss Engelhorn Museum asserts that copyright applies to these particular images because the museum hired the photographer who took some of them and it took him time, skill, and effort to take the photos. The Reiss Engelhorn Museum further asserts that because of their copyrights, the images of the artwork cannot be shared with the world through Wikimedia Commons.

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A 1777 landscape by Ferdinand Kobell, one of the images on Wikimedia Commons potentially affected by the lawsuit.

The Wikimedia Foundation and Wikimedia Deutschland believe that the Reiss Engelhorn Museum’s views are mistaken. Copyright law should not be misused to attempt to control the dissemination of works of art that have long been in the public domain, such as the paintings housed in the Reiss Engelhorn Museum. The intent of copyright is to reward creativity and originality, not to create new rights limiting the online sharing of images of public domain works. Moreover, even if German copyright law is found to provide some rights over these images, we believe that using those rights to prevent sharing of public domain works runs counter to the mission of the Reiss Engelhorn Museum and the City of Mannheim and impoverishes the cultural heritage of people worldwide.

Many cultural institutions have made it their mission to make their collections more accessible to people around the world. In October, the Museum für Kunst und Gewerbe in Hamburg, Germany made its collection available for free online. Amsterdam’s Rijksmuseum has provided free online access to all of its paintings, including the ability to download and use the reproductions under the CC0 Public Domain Dedication license. In Denmark, SMK (Statens Museum for Kunst, The National Gallery of Denmark) has released its digital images and videos under the CC-BY license. The British Library and the Japan Center for Asian Historical Records jointly released more than 200 Japanese and Chinese prints into the public domain.

These cultural institutions are upholding the values of the public domain and protecting the right to take part in our cultural heritage. The Reiss Engelhorn Museum’s attempt to create new copyright in public domain works goes against European principles on the public domain.

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A 1863 portrait of Seligmann Ladenburg by Johann Jakob Serr, one of the images on Wikimedia Commons potentially affected by the lawsuit.

In a Communication on August 11, 2008, the European Commission wrote: “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”.

Over the years, the Wikimedia movement has enjoyed rich partnerships with museums and galleries around the world through the GLAM-Wiki initiative, which helps cultural institutions share their resources with the world through collaborative projects with experienced Wikipedia editors. The relationships have allowed millions of people from around the globe to access and enjoy institutional collections in places they may never have the chance to visit. Wikimedia Deutschland alone has worked with more than 30 museums in Germany to make their collections freely available to anyone, anywhere through the Wikimedia projects. These partnerships are part of a vital effort to allow cultural institutions and Wikimedia to serve their missions of free knowledge and shared culture.

People around the world use Wikipedia to discover and understand the world around them. Thanks to the Internet, many traditional barriers to knowledge and learning have disappeared. Denying online access to images in the public domain prevents people from exploring our shared global cultural heritage. We urge the Reiss Engelhorn Museum to reconsider its position and work with the Wikimedia community to make their public domain works more broadly available.

A German-language statement from Wikimedia Deutschland is available on their blog. A full list of the images affected is on Wikimedia Commons.

Michelle Paulson and Geoff Brigham are the Legal Director and General Counsel, respectively, at the Wikimedia Foundation.

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If the photographer's work is legally the "intellectual property" either of the photographer as a person, or of the entity which hired the photographer, then laws regarding such "intellectual property" should be followed by Wikipedia or any entity publishing such. The issue is not "this is a photo of art, and everyone should be able to see it and duplicate it freely" as that would mean that no copyrights should exist at all. I regret to say that my sympathies are with the museum which appears to be the proper owner of a copyright on the photographic images, and that this complaint with regard to copyright is ill-taken here. Of course we can always use the "the copyright is not valid here" but that is the argument used in the past by the folks who "pirated" textbooks overseas in places which did not recognize their copyrights, and to which the United States, United Kingdom, and many other nations objected strenuously in the past. Wikipedia usage must, perforce, note the copyrights, and assert "fair use" or other grounds for using non-free images. Collect (talk) 13:56, 29 November 2015 (UTC)[reply]

You can't copyright public domain works, period. By asserting they hired the photographer, I don't know if they meant hired him personally by giving him money or that they authorized him to take the photos by virtue of sentence agreement he never agreed to, like most museums do. At best they can be upset with the photographer. At worst they got nothing. In any case, public domain is free so Wikipedia can use those photos regardless, without permission from anyone. DreamGuy (talk) 14:27, 29 November 2015 (UTC)[reply]

In the United States, as a result of the decision in Bridgeman Art Library v. Corel Corp., "exact photographic copies of public domain images could not be protected by copyright in the United States because the copies lack originality." I don't know what the situation is like in Europe, but were the museum in the US, there would be no question these images would legally be in the public domain. Gamaliel (talk) 16:21, 29 November 2015 (UTC)[reply]

(ec)OK -- so you mean that since the Pyramids are "public domain" that if a major photographer took a picture of them now, that the photographer who spent hours taking the photo has no copyrightable interest in the photo he took, and that all photos of the Pyramids are automatically "public domain" (I do not assert that Cheops has any enforceable rights on them)? That means of course that none of Ansel Adams works are copyright since the places he took photos of are "public domain"? And since textbooks were "public domain" in China, that therefore we can reprint them all as they can not have any copyright as they were not copyright in China? Sorry -- that is not supported by case law or international treaty. The rule of law is this - "intellectual property" exists, and anyone insisting that one can not actually create anything since (I presume) all words are "public domain" is not on the winning side of the "intellectual property" debate. We might be able to claim "fair use" of the material, but we can not and ought not open up the can of worms that you propose. And we are bound by treaty to respect the laws of the other country in cases such as this. Collect (talk) 16:28, 29 November 2015 (UTC)[reply]

And re: Kaplan's decision on the art images in the Corel case: "little doubt that many photographs, probably the overwhelming majority, reflect at least the modest amount of originality required for copyright protection." Thus refuting Gamaliel's claim as to what the Corel decision actually was. If there is any originality in the photograph, beyond "slavish copying," then he found the image could be copyright under US law. Collect (talk) 16:35, 29 November 2015 (UTC)[reply]

It is not my original claim, I was quoting our Wikipedia article, so if you feel it is inaccurate, WP:SOFIXIT. It is my understanding that Bridgeman Art Library v. Corel Corp. only applies to unoriginal photographs of two-dimensional artworks already in the public domain, not photographs of three-dimensional objects which are the original artistic expression of photographers. Gamaliel (talk) 17:45, 29 November 2015 (UTC)[reply]

The quote I gave is actually in the "Wikipedia article" which you might not have noticed. I also suggest you read [1] A Guide to Copyright for Museums and Galleries by Anna Booy, Robin Fry, Peter Wienand; Routledge,; Dec 6, 2012, which I trust meets the Wikipedia requirements as a scholarly source on the topic. Note specifically the treatment of photographs of photographs - where the statement is made that the new photograph can absolutely be subject to copyright is it is made other than, for example, by a technician who is using a fixed focus camera with fixed lighting. As there is no claim that the photos at hand were "slavish copies" and in fact there is an assertion that considerable skill was used in the making of the images, this learned book as well as the actual Corel decision, which I sure you read through, support the copyright nature of the images. See also [2] "The Vatican could only license the copyrights of a public domain work due to an old quirk of copyright law. The original artwork may be in the public domain, but a photograph of that artwork may be copyrighted as a new unique work. The photograph taken today becomes a new copyrighted work with new intellectual property rights. Museums often charge for photographs of works in their collection, and publication royalties provide a modest income stream to fund conservation." The Sistine Chapel art is not, as far as I can tell, "three dimensional". For some reason, I consider the use of funds for art conservation to be a "good thing." Collect (talk) 18:05, 29 November 2015 (UTC)[reply]

As a former art teacher, I also consider the use of funds for art conservation to be a good thing. I also consider open access to public domain resources such as images to be a good thing, and necessary for underfunded classrooms, where one does not necessarily have the resources to fund art conservation in such a manner. Gamaliel (talk) 18:27, 29 November 2015 (UTC)[reply]

Art museums which lack money sell off their art. Your view, alas, would lead to more of that, in my opinion. Cheers. Collect (talk) 18:35, 29 November 2015 (UTC)[reply]

If any art museums are going out of business because they don't make enough money selling ,jpgs, I haven't heard of it. Gamaliel (talk) 18:40, 29 November 2015 (UTC)[reply]

[3], [4] ad nauseam. "The New York Times reports on a trend among European museums to sell part of their collections to pay for acquisitions or meet other financial obligations as government cultural subsidies have been cut back. Other museums have sold artworks to offset the costs of failed state banks or other state debts. Whether the sales fund acquisitions or government budget cuts has significant consequences.", etc. Any cuts in funding - including royalties - can harm museums. Drastically. Yes - we could say "all art is free" but the net result would be massive closings of museums. Do museums actually close? See [5]. The Louvre has many sections now "closed" on a regular basis. [6] " the museum cannot maintain all of its rooms open every day." Yes, Virginia - museums can close down when they do not have the funds to operate. (New York Sun reference) Collect (talk) 19:51, 29 November 2015 (UTC)[reply]

I am aware that many museums are struggling and I am troubled by this. But there is no evidence here to place the blame for this on images falling into the public domain. Correlation does not imply causation. (David Hume reference.) Gamaliel (talk) 20:14, 29 November 2015 (UTC)[reply]

You are, as always, hitting the nail right on the point. If we ban all museums from getting any royalty monies, that does not mean they would have less money to operate. I hate to say this but reducing income does mean one has less money, and your Hume quote does not and can not be interpreted as you seem to imply. Collect (talk) 23:13, 29 November 2015 (UTC)[reply]

It is not as simple as you wish it to be. Lowering admission prices, for example, would seem to automatically mean they have less money to operate, but in fact it often translates to more frequent and more loyal visitors, who also spend more in the gift shop. Museums, archives, and libraries have found the free dissemination of images has done much to build support, financial and otherwise, for their institutions and their goals of the preservation and dissemination of information and culture and does not always translate to less money. Gamaliel (talk) 00:41, 30 November 2015 (UTC)[reply]

you know what guys? At the end of the day, we know nothing about this is reality. Maybe we should leave it to the lawyers to decide this, who are paid to do this and have a much better hold on the law then we do. Mdann52 (talk) 07:47, 30 November 2015 (UTC)[reply]

There is a balance of power regarding copyright, one already shifted far, far away from the rights of the public toward those of the heirs of heirs. Those yet fighting for the right of everyone on the planet to have access to the sum total of all human knowledge should try not to fight like the Iraqi Army, which is to say, they need to put up some defense beyond tying pretty ribbons on armored personnel carriers and boxes of assault weapons and leaving these gifts behind to slow down the advancing ISIS troops. Private copyright is defined by a mishmash of idiotic and contradictory notions, and the same is true of the public domain. It should not be Wikimedia's role to unilaterally hand over advantage by refusing to stand up for itself in a world where people retain no right they don't fight for. Does it make sense that people tell us that taking a shot of a canvas with ridges and texture is two-dimensional, but putting a coin on a photocopier is three-dimensional? No. Problem is, no line a court could draw would make sense, because copyright itself doesn't make sense. Wnt (talk) 15:05, 30 November 2015 (UTC)[reply]

WMF should absolutely be fighting against copyright maximalism when it makes sense to do so. If people are trying to assert "copyrights" that they actually have no legal right to claim in the first place, someone needs to stand up and challenge that. The Mickey Mouse Copyright Perpetuation Act has already done enough damage, to say nothing of "automatic copyright" and the like. Nothing much to be done about those, but let's at the very least not let it creep farther still. If museums lose some money because of that, well—that's unfortunate, but we shouldn't refuse to challenge bogus claims so a museum can make a buck. Seraphimblade ^{Talk to me} 16:07, 30 November 2015 (UTC)[reply]

It was amazing to me in 1996 or whenever the first library that I went to first got the Internet that we could see great works of art on a computer. I think that was mainly because computers had only recently become capable of handling images that detailed.— Vchimpanzee • talk • contributions • 20:25, 30 November 2015 (UTC)[reply]

Hello everybody! We’d like to thank you all for your thoughtful comments. These complex copyright issues can raise some interesting discussions, and we see that this post was no exception. Our legal team would like to offer clarification on the Foundation’s perspective. As with our wikilegal posts, this comment is not intended as legal advice. The legal team can only represent the Wikimedia Foundation. Please see our full disclaimer for more information about the legal team’s role.

As a general principle, copyright law is intended to incentivize (and reward) originality, not effort. In our view, photographers who faithfully digitize certain two-dimensional artworks are engaged in extremely important and useful work; but that work is not protected by copyright. In order to create a protected “derivative work” (i.e., a new copyrightable work based upon a prior, underlying work), artists must introduce their own original, distinguishable, and non-trivial variation to the underlying work. In this case, the entire point of photographing these public domain images is to replicate them as exactly and with as few original modifications as possible. As a result, we believe these images are unprotected copies of public domain images, not protected derivative works.

To be clear, we do not believe this means that photographs of three-dimensional objects such as the pyramids are exempt from copyright protection. Such images often incorporate a photographer’s original expression—for example, changes in angle, distance, framing, and subject—even if the image contains an artwork within the public domain. This is why photos of three-dimensional objects are typically treated as copyrightable on Commons, assuming of course that the photos are not already in the public domain for other reasons.

We understand and appreciate the concerns about museums’ revenue streams. Photographing public domain works can be expensive, and it’s understandable that museums would want to exert some kind of control over the fruits of that labor, even if they lack a proper basis under copyright law for doing so. Fortunately, there is preliminary (but mounting) evidence to suggest that open access approaches produce net benefits for museums. For example, a 2013 guide by the World Intellectual Property Organization (WIPO) argues that “providing unfettered access to museum images is actually good business”; primarily because open access “increas[es] circulation and deliver[s] significant promotional opportunities back to the museum.” Another report published by the Council on Library and Information Resources (CLIR) noted that “[r]eal and perceived gains far outweigh the real and perceived losses for every museum in the study that has made a transition to an open access approach.” One of these benefits included major website traffic increases of “20 to 250 percent, with many museums reporting increases of at least 100 percent.” Curators reported receiving “better and more interesting inquiries from scholars and the public” concerning the images in their collections. The CLIR report also cites scholarship indicating that open access would not significantly affect museum profits because museum rights and reproductions operations are not usually a source of profits at all.

Many cultural institutions, including the Reiss Engelhorn Museum, are supported by public funds and are charged with increasing accessibility to art by the public. As we outlined in our post, several prominent cultural institutions have launched highly successful open access initiatives, including, among others, the Museum für Kunst und Gewerbe in Hamburg, Germany, Amsterdam’s Rijksmuseum, SMK (Statens Museum for Kunst, The National Gallery of Denmark), the British Library, and the Japan Center for Asian Historical Records. Of course, none of this prevents museums from continuing to sell merchandise containing public domain images. In addition, images incorporating a museum’s trademarks will also continue to be protected. Book publishers have been successfully selling hard copies of public domain works for decades, and we expect museums could do the same regardless of the copyright status of their images. Stepping back to look at the big picture, the Wikimedia Foundation regards cultural institutions, including the Reiss Engelhorn Museum, as natural allies in achieving the movement’s vision of spreading the sum total of human knowledge. We continue to hope that the Museum will reconsider its position and work with us to help people around the world enjoy the public domain works that it houses. Jbuatti (WMF) (talk) 00:48, 3 December 2015 (UTC)[reply]

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