Copyright Aid

I have come across an image in Wikimedia and the 'author' purports that it is in the public domain as the original painting is out of copyright.

However, it transpires that the image has been scanned from a book published in 1996 by the British Museum and translated into Swedish.

It also transpires that the original painting is kept by the British Library which states on its website:

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The British Library holds copyright on all its images.

We may only make available images from books and manuscripts on which the original authors' and artists' copyright has now expired because they died more than 70 years ago, unless special permission has been granted by the rights-holder.

[and on the FAQ page:]

Why do I need permission to use materials held in the Library that are in the public domain and out of copyright?

The original work(s) are in the public domain; the copies the Library supplies are in copyright as they are new copies of the original materials. This is why you will need to clear permission.

How do I obtain permission to use images from the British Library's collections?

You will need to contact Permissions to negotiate the rights charge. As a guide to our charges, please consult our Permission Fees Schedule. Complete and return our Permission Application form to obtain permission to use our images.

Do I need to state how I intend to use the material(s)?

Yes, you will need to inform the Library of usage of the material(s), and if you wish to adapt, crop, or alter the materials from its original state.

Will there be a permission fee charged for reproducing the images?

In most cases there is always a fee charged, how much will depend on several factors. As a guide to our charges, please consult our Permission Fees Schedule.

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Therefore, the British Library charges reproduction fees where images provided by them are used for commercial purposes.

Three questions arise:

1) how can the image on Wikimedia be in the public domain, given the above?

2) surely the publishers of the 1996 book cleared permissions and paid reproduction fees?

3) should I steer clear of using the Wikimedia image for a commercial project in case I incur the wrath of the British library!?

I would be grateful for any help in this matter.

Hi Amanda,
For many years a photograph of an original painting has been considered to be a separate artistic work, because of the skill and judgement used by the photographer to ensure that the painting was correctly lit (the surface of many oil paintings being shiny this can cause unwanted reflections) and the colours of the painting were correctly reproduced. If the painting was out of copyright, or was in copyright and the photographer had obtained the permission of the artist to photograph it, then his photograph would be eligible for copyright as a separate work. This is pretty much the situation outlined in the British Library conditions you quoted.
However in 1999 in America a case called Bridgemern Art Library v Corel Corp was heard in the Southern District Court of New York in which this concept was overturned, and a number of photographs owned by the Bridgeman Art Library of old, out of copyright paintings were held not to be capable of having copyright and thus the defendants Corel Corp had not infringed any copyright by reproducing them. As a result of this decision, US jurisprudence now tends to follow this line. Wikimedia, being an American organisation, will probably use this yardstick for assessing what is in the public domain.
This American court decision has no direct effect on UK law which continues to treat copyright as existing in the photograph of a public domain work.
Moving to your second question, if the publishers were based in the UK then I would have expected them to have sought permission from the British Library to use the image, but if they were based in another jurisdiction such as the USA it is possible they based their use on the Bridgeman decision and viewed the image as being in the public domain. Normally if a photograph (or any other copyright work) is used with permission in a book, there would be a notice to this effect somewhere in the book, either under the image itself or on the page after the title page.
As for your third question, I think the approach you have taken with this photograph is the sensible way to proceed, that is to say, try to establish the provenance of the photograph in each case. When doing this bear in mind that some museums do allow the public to photograph works of art so these photographs would be under the control of the individuals concerned who might well be authors of books on art, or have waived copyright and put their images in the public domain in the interests of widening access to cultural history. If you have done a reasonable amount of research and still turned up no reason to doubt any Wikimedia claim, then you would be in a strong position if you were unlucky enough to face an allegation that you infringed copyright. In the UK you would not face damages if the court was satisfied that you had no reason to believe copyright existed.

Section 97 Copyright Designs and Patents Act 1988 Provisions as to damages in infringement action.
[ ... ] Where in an action for infringement of copyright it is shown that at the time of the infringement the defendant did not know, and had no reason to believe, that copyright subsisted in the work to which the action relates, the plaintiff is not entitled to damages against him, but without prejudice to any other remedy.

Thank you for this comprehensive reply. The image on Wikimedia was actually scanned from a reproduction of the image in a book published in 1996, and not photographed, which puts a different complexion on the issue (The 'author' I referred to in my original query was not the author of the book, but the person who scanned the image from the book and uploaded it on to Wikimedia.)

Also, my understanding is that a direct copy of an original work by mechanical means such as scanning does not constitute a new copyright. (Therefore, it could be argued that if the British Library has scanned the images rather than photographed them, they cannot claim that they have copyright.)

Your reply has also raised an issue about another image on Wikimedia. The image is part of a collection of reproductions by the Yorck Project in Germany and is licensed under the GNU license, but according to Wikimedia it is in the public domain worldwide. (The original painting is in an art gallery in Antwerp.)

How can it be considered to be in the public domain worldwide if UK law regards the photo as a separate copyright? Or is the fact that it is licensed alter the terms?

I do find this whole area of copyright very confusing!

Hi again Amanda,
I would agree with you that an image scanned from any source would not attract copyright through lack of originality (ie no human creative input). Clearly such scanning would be copying and would therefore infringe copyright in the image in the book unless either the book illustration was out of copyright or permission to do the scanning had been obtained beforehand. One problem here is that if a person scanned the book illustration for private research purposes, that would have been lawful under the fair dealing rules, but it would not be lawful if the scanned image was subsequently published via Wikimedia etc.
My comments on scanning would apply equally if the British Library had done the scanning, although if this was the case, it may not have infringed copyright if it was done for one of the purposes permitted by Sections 42 and 43:

42 Copying by librarians or archivists: replacement copies of works.
(1)The librarian or archivist of a prescribed library or archive may, if the prescribed conditions are complied with, make a copy from any item in the permanent collection of the library or archive—
(a) in order to preserve or replace that item by placing the copy in its permanent collection in addition to or in place of it, or
(b) in order to replace in the permanent collection of another prescribed library or archive an item which has been lost, destroyed or damaged,
without infringing the copyright in any literary, dramatic or musical work, in any illustrations accompanying such a work or, in the case of a published edition, in the typographical arrangement.
(2) The prescribed conditions shall include provision for restricting the making of copies to cases where it is not reasonably practicable to purchase a copy of the item in question to fulfil that purpose.

43 Copying by librarians or archivists: certain unpublished works.
(1) The librarian or archivist of a prescribed library or archive may, if the prescribed conditions are complied with, make and supply a copy of the whole or part of a literary, dramatic or musical work from a document in the library or archive without infringing any copyright in the work or any illustrations accompanying it.
(2)This section does not apply if—
(a)the work had been published before the document was deposited in the library or archive, or
(b)the copyright owner has prohibited copying of the work,
and at the time the copy is made the librarian or archivist making it is, or ought to be, aware of that fact.
(3) The prescribed conditions shall include the following—
(a)that copies are supplied only to persons satisfying the librarian or archivist that they require them for the purposes of—
(i)research for a non-commercial purpose, or
(ii)private study,
and will not use them for any other purpose;
(b)that no person is furnished with more than one copy of the same material; and
(c)that persons to whom copies are supplied are required to pay for them a sum not less than the cost (including a contribution to the general expenses of the library or archive) attributable to their production.

Obviously neither of these exemptions would result in an image which was in the public domain unless of course the original work was in the public domain.
The point about the reproduction of the work in the Antwerp art gallery is that it has been released under licence (in this case through the GNU licence system but equally it could have been done under the Creative Commons system). Copyright may still exist, but the copyright owner is permitting anyone to use his image for free (although often with a stipulation that it should not used commercially). This is not the same as something being in the public domain, which means the work is entirely free of copyright, either because the copyright term has expired or because the work was not eligible for copyright in the first place (for example the scans mentioned earlier). On that basis Wikimedia would appear to be misusing the term 'public domain' in this instance, possibly because of your final remark that copyright can be very confusing.
If you are really interested in this subject I can recommend an excellent book which manages to de-mystify some of the legal twists and turns: Copyright for Archivists and Records Managers 4th Edn 2010 by Tim Padfield published by Facet ISBN 978-1-85604-705-0. You can get it through Amazon.