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National Gallery selfies – art or infringement?

29 August 2014

Significant press attention has surrounded the National Gallery’s recent decision to permit visitors to photograph their artworks using mobile phones. Media focus has been on diminishing cultural values and damage through flash photography. But what about the copyright angle?

The truth is, copyright in much of the permanent collection has long-since expired. End of story? Actually no. Snappers of any permanent work still in copyright or of any temporary exhibits/loans will in fact risk infringing copyright in the works. Now an IP-savvy visitor might cite s.62 CDPA, which provides a defence for photographs of (inter alia) sculptures and works of artistic craftsmanship. Interestingly, however, this does not apply to paintings! If it’s a ‘selfie’, they might then argue that the painting was included ‘incidentally’ (S.31 CPDA), however Panini thwarts this time, suggesting that if the background to your shot is actively selected, it is integral not incidental. The risk then, is real. The reality – whether anyone actually cares about ‘selfies’ – is yet to be tested.

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