2009/11/8 Craig Franklin <cr...@halo-17.net>:

> How does this affect the legal situation?  I'm not really sure, but it seems
> reasonable to say that QM's claim is either completely bogus (in which case
> the images are free), or it's valid but under a free licence, in which case
> the image is also free.  Anything else seems like splitting hairs.  It also
> would seem that the claim *would* be valid in the UK where we know the
> doctrine does apply, so even if it's not recognised in this country, someone
> using them in the UK would have to abide by the terms of the CC-BY-SA-3.0
> licence.

Ah, no, we don't know that it applies in the UK.

The National Portrait Gallery thinks it not only applies, but applies
so strongly it could be used against a US citizen for actions in the
US. This view is highly disputed and is, as I understand it, currently
the subject of detailed negotiations between the NPG, WMF and EFF.

However, the legal status is currently in a state of quantum
uncertainty, where there isn't a firm ruling and no-one really wants
there to be one. Because when the copyright claimant fought it to the
ground in the US, it was found *not* to be the case.

In my personal opinion, leaving it in a state of quantum uncertainty
is probably best for all at this stage - we note their *claim* of
copyright and release under CC by-sa, we know very well that the stuff
is public domain in the US, but in any case WMF would strongly
encourage correct and full attribution of all uses of the material
because that's the educational and academically proper thing to do
*and* helps the source museum. Because we love our GLAMs and want to
help them and not hurt them.

YMMV of course. There's a lot of stroppy free-culture geeks upset that
the claim is even being made, and I've been doing a bit of calming
people down over the past few days and explaining that WMF is the
800lb gorilla in this arrangement so has to be seen to play nicely.

- d.

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