German Museum Sues Wikimedia Over Photographs of Works of Art

Wikimedia is facing allegations that it has breached copyright law in Germany over the publication of photographs showing works of art which are in the public domain.  A German museum is arguing that the photographs do not fall under the public domain exception, because the photographs themselves come within the remit of protection afforded by copyright law.

The Reiss Engelhorn Museum in Mannheim, Germany, recently served a lawsuit against Wikimedia over photographs of works of art in the museum that appeared on the site. According to Wikimedia, the museum claims that the 17 images don't actually fall under the public domain exception and they maintain that they should receive copyright protection.  The Museum argues that the photographs are new creations, taken by a photographer hired by them. They claim that the photographer spent new time and effort on those images, therefore they are original and attract copyright protection. Therefore, the museum asserts that the images themselves do not fall under the public domain.

Arguably, Germany's domestic copyright law is less sympathetic to photographic copying of works of art than the case under the UK law however it would be hoped that by now such law would be settked.  One of first cases on the subject in the UK took place in 1869 (see the Graves Case), only seven years after copyright protection in the UK had been extended to include photographs. In that case the photographer won his case, with the judge concluding "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 Fine Art Copyright Act 1862]." The courts have not seriously upset this finding since.

Although the test for originality more generally has been re-defined on many occasions, most notably in case law for example: Designers Guild (2001), Hyperion Records (2005) and Baigent v Random House (2006). More specifically, in the case of Antiquesportfoilio.com v Rodney Fitch (2001), the courts held that if the photographer uses sufficient skill and labour in his or her choice in taking the photo, such as timing, viewpoint, exposure, lighting etc., then the resulting photo would be entitled to copyright as an original work due to the effort expressed in taking that photograph.

The Wikimedia Foundation and Wikimedia Deutschland believe that the Museum's stance is incorrect. Quoting from their blog, "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."

Wikimedia also points out that many other museums and cultural institutions uphold public domain and the rights of websites like Wikimedia to host images of works of art online. Other similar organisations have gone so far as to make their entire collections available for the world to enjoy on the Internet.