RE: Re: Fwd: [AAUP-R] between the National Portrait Ga llery and a Hard Place

The case I was referring to is Antiquesportfolio.com plc v Rodney Fitch & Co Ltd [2001] F.S.R. 23. I don't think a copy of the judgment is freely available but I have got it from Westlaw.  

Peter Groves
Consultant
Bircham Dyson Bell, 50 Broadway, London SW1H 0BL www.bdb-law.co.uk
Direct line 020 7170 0327
Mobile 07970 175097
-----Original Message-----
From: Christine L. Sundt [mailto:csundt[_at_]darkwing.uoregon.edu] Sent: 09 June 2005 23:00
To: CNI-COPYRIGHT -- Copyright & Intellectual Property Subject: [CNI-(C)] Re: Fwd: [AAUP-R] between the National Portrait Gallery and a Hard Place

A question for Peter Groves: What's the case that you referenced in your response - the one involving photos of antiques? Is this the Bridgeman v. Corel case or another?  

Thanks.  

Christine L. Sundt
Visual Resources Curator
University of Oregon
Architecture & Allied Arts Library
Lawrence Hall - Room 300
1190 Franklin Boulevard
Eugene, OR 97403-5239 - U.S.A.  

v: 541/346-2209
f: 541/346-2205
email: csundt[_at_]uoregon.edu (or csundt[_at_]mindspring.com) Copyright & Art Issues - http://uoregon.edu/~csundt/copyweb/  

-----Original Message-----
From: CNI-COPYRIGHT -- Copyright & Intellectual Property [mailto:CNI-COPYRIGHT[_at_]cni.org]On Behalf Of GROVES Peter Sent: Wednesday, June 08, 2005 12:31 PM
To: CNI-COPYRIGHT -- Copyright & Intellectual Property Subject: [CNI-(C)] Re: Fwd: [AAUP-R] between the National Portrait Galler y and a Hard Place  

If the book is only available in the US, questions arise only under US copyright law. If it's available from the web site, however, you can't rely on excluding English law (or possibly any other law) considerations.  

There is little authority in this country about how the requirement for originality may be satisfied for a photograph to attract copyright protection. The one recent case there is concerned photos of antiques, and is of little help when considering a photographic copy of a two-dimensional work. The question for the courts is whether sufficient skill and care has gone into the making of the photograph, and it must be doubtful whether the photographic reproduction of the sketch would reach even this modest standard. So your colleague might like to challenge the NPG's assertion of "secondary" copyright (not a concept recognised in the statute, incidentally) and may be able to cite US law (which could influence the decision of an English judge) in support of her position. The only reason such claims to protection carry any weight is because no-one questions them - although you don't need me to point out that the cost of a legal argument about it would soon exceed the asking price.  

Peter Groves
Consultant
Bircham Dyson Bell, 50 Broadway, London SW1H 0BL www.bdb-law.co.uk
Direct line 020 7170 0327
Mobile 07970 175097
-----Original Message-----
From: Laura Young Bost [mailto:laura[_at_]utpress.ppb.utexas.edu] Sent: 07 June 2005 22:31
To: CNI-COPYRIGHT -- Copyright & Intellectual Property Subject: [CNI-(C)] Fwd: [AAUP-R] between the National Portrait Gallery and a Hard Place
I am forwarding this on behalf of a colleague who isn't on CNI. Any thoughts on how to proceed would be appreciated, especially from those of you familiar with UK copyright law.

Would it make any difference if the book is only sold in the US?

Thanks,
Laura

-- 
Laura Young Bost, Rights Manager
University of Texas Press
P.O. Box 7819, Austin, TX 78713-7819
tel:512/232-7625; fax:512/232-7178
email: laura[_at_]utpress.ppb.utexas.edu
Please visit our NEW website at http://www.utexaspress.com
*************************************************************
Dear Colleagues,

We recently published a book on Jane Austen, the author of which wrote 
to the National Portrait Gallery in London to purchase a reproduction 
of and receive permission to reproduce an image of an 1811 Cassandra 
Austen sketch of Jane Austen. The National Portrait Gallery provided 
a reproducible copy of the image and granted permission for its 
inclusion in the interior of the book only. The author signed her 
agreement to this stipulation and paid the fee.

Meanwhile, back at the ranch, a freelance graphic artist submitted a 
cover design which had several well-known images of Austen, including 
a colorized image of the 1811 Cassandra Austen sketch. The artist had 
gotten that image and others somewhere in the public domain. Our 
production department however, in crediting the cover design, noticed 
the similarity between the one on the cover and the interior one and 
so repeated the credit to the National Portrait Gallery for one of 
the cover images.

The National Portrait Gallery is now charging us over 500GBP for what 
they call "secondary copyright". (Their fee includes punitive 
charges--one for colorizing--but these are another matter.) I have 
written them explaining that their being credited for one of the 
cover images is an error and that we'll take it out when we reprint; 
that the interior one was requested and paid for but the cover one is 
in, and was gotten from, the public domain.



>From their response: "Although the original work is out of copyright, 

there is secondary copyright in any photographs or scans taken of it. 
The NPG does not allow anyone else to photograph or scan our work, 
and we do not licence our images through anyone else at present. 
Therefore, any image found elsewhere will have originated from one of 
our own photographs or scans, and the copyright belongs to us."

Any advice on or help with this will be appreciated.

Thank you.
-- 


Margaret A. Walsh
Subsidiary Rights and Permissions Editor
The University of Wisconsin Press
mawalsh1[_at_]wisc.edu

1930 Monroe St    3rd Flr  Madison, WI  53711-2059  USA
Ph 608 263 1131  FAX 608 263 1132

Our website is @ http://www.wisc.edu/wisconsinpress/   Please visit.
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