National Portrait Gallery and Wikimedia Foundation copyright dispute

The NPG accepted that the artworks depicted were in the public domain, but contended that they owned exclusive rights to their reproductions, demanding that they be removed from Wikimedia Commons.

An unrelated 2023 Appeal Court judgement clarified that, in the UK, no new copyright is created in making a photographic reproduction of a two-dimensional public domain artwork.

[1] On 17 July 2009, NPG gallery spokesperson Eleanor Macnair stated that "contact has now been made" with the Wikimedia Foundation and "we remain hopeful that a dialogue will be possible.

"[10] In November 2010, Tom Morgan, Head of Rights and Reproductions at the National Portrait Gallery addressed a conference attended by both Wikipedians and representatives of cultural institutions.

[12] As such, local policies of the Wikimedia Commons web site ignore any potential copyright that could subsist in reproductions of public domain works.

[5] However, British case law can take into account the amount of skill and labour that took place in the creation of a work for considering whether it can be copyrighted in that country.

[6] Fred von Lohmann, an attorney with the Electronic Frontier Foundation (EFF), remarked that the situation comes down to asking whether US companies and citizens would be "bound by the most restrictive copyright law anywhere on the planet, or by U.S.

"[14] In a legal analysis, Lohmann contended that under US law, the NPG's "browse wrap" contract was not enforceable, database rights are not implemented at all, and that "using Zoomify on public domain images doesn't get you a DMCA claim.

[18] In November 2015, the United Kingdom's Intellectual Property Office clarified in an informational document that, based on the opinion of the European Court of Justice, "copyright can only subsist in subject matter that is original in the sense that it is the author's own 'intellectual creation'.

[22] A November 2023 Appeal Court judgement (THJ v. Sheridan, 2023) by Lord Justice Arnold clarified that, in the UK, no new copyright is created in making a photographic reproduction of a two-dimensional public domain artwork, and that this has been the case since 2009.