Wikimedia was found to have violated copyright laws after uploading photos of public artworks by Swedish institutions. The Swedish Supreme Court ruled in favor of the Swedish Visual Artists’ Copyright Society (BUS) in a lawsuit it had filed against Wikimedia for copyright infringement, as reported by The Local, an English-language news outlet in Sweden. The case began when BUS, representing artists, photographers, illustrators, and designers, sued Wikimedia in the Stockholm District Court for using photographs of Sweden’s public artworks without the consent of the artists.
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The Swedish Supreme Court explained that “Swedish law allows the public to photograph public artworks. However, allowing those photographs to be used freely and without limitation in a database is an entirely different matter.” The court further noted that such databases possess considerable commercial value, and copyright holders have every right to be protected. Whether Wikimedia operates for commercial purposes or not does not alter this outcome, the court stated.
After the ruling, Wikimedia Sweden’s director, Anna Troberg, expressed disappointment, calling the decision “outdated and rigid” and claiming it went against recommendations from the European Court of Human Rights. Jim Killock, Executive Director of the Open Rights Group based in the UK, remarked, “In a digital world, the freedom to take photographs of public scenes is essential for ordinary photographers. People may not realize that buildings or public artworks are covered by copyright. If copyright prevents them from taking such photos, it will become a laughingstock and bring disrepute to copyright law.”
The copyright issue concerning public artworks relates to the limitations of copyright. Swedish law on the copyright of literary and artistic works contains provisions for limitations on copyright. Unlike common law systems, which have a general provision for fair use, civil law systems, including Sweden, follow a list-based approach. The second chapter of Sweden’s Copyright Act details such limitations, but there is no clear provision on whether photographing public artworks and making them available to the public in a database format is permitted. Based on the Supreme Court’s ruling, it appears that in the absence of specific limitations, the court favored recognizing copyright in accordance with legislative intent.
How might a court in a country like South Korea or the U.S., which applies the fair use doctrine, have ruled in this case? It is likely that the outcome would have been similar to the Swedish Supreme Court’s decision, for two reasons. First, fair use requires that the use not harm the legitimate interests of the rights holder. Uploading photos to a database for unrestricted use could significantly impact the current or potential market value of the works. Second, fair use may apply if the use involves a “transformative” element that distinguishes it from the original. However, in the case of photography, it is less likely that such transformation would be recognized compared to other art forms, like a painting inspired by a public artwork.
A precedent in the U.S. involving this issue was seen in 2005 with the “Gates” project by artists Christo and Jeanne-Claude, which was displayed in Central Park for 16 days. Their attorney, Scott Hodes, sent cease-and-desist letters to photographers attempting to sell images of the installation without permission. The letters asserted that “Christo holds the exclusive copyright to ‘The Gates.’ While photography for academic, critical, journalistic, or parodic purposes is permitted under fair use, commercial uses are prohibited without Christo’s explicit written permission. Unauthorized use will result in legal action.” Christo and Jeanne-Claude sold licensed and signed posters of the installation to raise funds for a non-profit environmental group in New York City, and thus, unapproved sales of photographs could have caused financial losses. While the legal action was relatively soft compared to standard legal cease-and-desist letters, it was notable for asserting a right in a gray area of the law.
Another example of the transformative nature required for fair use in the U.S. can be found in a case involving the punk rock band Green Day. The band used a modified version of an illustration by artist Dereck Seltzer in the background of a music video, leading to a lawsuit for copyright infringement. Seltzer’s illustration, “Scream Icon,” had been used in various street art settings across cities like Los Angeles. In 2009, Green Day, preparing for a tour, commissioned photographer and video producer Roger Staub to create background visuals. Staub used a photo he had taken of the Scream Icon poster in LA, altering its color, adding a brick wall background, and painting a red cross over it. The modified image was used during Green Day’s tour and during a performance at the MTV Video Music Awards. Seltzer sued Staub, Green Day, and Warner Bros. Records, seeking $30,000 to $150,000 in damages. However, the U.S. District Court for the Central District of California dismissed the case in 2011, ruling that the use qualified as fair use because the transformation added new aesthetics, insight, and value to the original work. Seltzer appealed, but the Ninth Circuit upheld the lower court’s decision.
Koo Bon-jin (Representative Attorney at Lawplex, Ph.D. in Law)
Published in the July 2016 issue of Copyright Culture Monthly.