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Originally Posted by HarryT
It is, though, an example of the use of a "sweat of the brow" copyright claim, something which I believe is not present in US copyright law at all
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Anybody can claim anything, until it is settled in court it has no meaning. Even more so, anyone can have their lawyers write a threatening letter.
They may well have good points on the database copyright issue, and on whether the images were obtained in an unauthorised way, but I see nothing there to contradict "But copying, per se, however much skill or labour may be devoted to the process, cannot make an original work".
The purposes of the photographs is to reproduce, as accurately as possible, the original work. While a highly skilful act, it is not an artistic one, and the resulting photograph (as I read the cases I have found) is not considered to be an original work, and thus cannot be copyrighted.
18 months on and there still seems to be no case taken to court, and the images are still available.
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One can understand their annoyance at having spent £1m on digitizing their collection, for the specific purposes of licensing it to raise funds for the gallery, only to have someone copy it for nothing. It's rather a kick in the teeth for them.
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As Google have spent a large amount of money digitising books, and volunteers have spent a large amount of time producing digital versions of PD works.
No case is cited in the NPG'sletter to support their claim, and
this report by the Museums Copyright Group, which I think it is fair to say would have a vested interest in the matter, don't list any UK case as precedent for a claim to copyright, only a statement from counsel that a photograph could, as a matter of principle, qualify for copyright. The reports highly overstates what counsel has actually said. It could, or it could not, I imagine that would be a matter for the courts to determine based on the facts of the case.