Commons:Village pump/Copyright

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Photograph of 1850 painting that may have never been publicly displayed until recently

When I searched for advice, it seemed to differ depending on the country and whether the painting had been publicly displayed, which left me confused.

I am in the US, the painter was in the US, and the people who have uploaded a photograph are in the US. There is a photo here: https://fineartsouth.com/pages/art-inventory/artdetail/115/1386

The painting was in an exhibit in New Orleans a few years ago.[1] I don't know if it was ever publicly shown before that.

Every page on the site hosting the photo has "©2024 Robert M. Hicklin Jr., Inc. All rights reserved." at the bottom which for sure applies to all their text and design work, but is the photo in the public domain? Rjjiii (talk) 05:09, 24 June 2024 (UTC)[reply]

I'm not a lawyer but based on Commons:Hirtle chart, if the artist died in 1853 and the work was not published before 2003, then it passed into the public domain on January 1, 2003 on the basis that the author had been dead over 70 years. (This change in status was due to a change in U.S. copyright law effective on that date.) There is no way that copyright could be regained; faithful reproduction of the work does not create a new copyright; it is almost impossible to imagine what intellectual property right Robert M. Hicklin Jr., Inc. is claiming, or how they think they came by that right. Perhaps they are over two decades out of date in their knowledge of copyright law; perhaps they are just bluffing. Your guess is as good a mine. - Jmabel ! talk 06:23, 24 June 2024 (UTC)[reply]

The painting predates US copyright protection for paintings anyway (it came in 1897 I believe) so I think it's fine, Hirtle chart or not. Bremps... 01:10, 29 June 2024 (UTC)[reply]

This is the first I've heard about pre-1897 paintings not having copyright protection in the United States. Can you point me to what your talking about? grendel|khan 18:16, 5 July 2024 (UTC)[reply]

@Grendelkhan: It's 17 USC § 303(a). [2] (The "the term provided by section 302" is 70 years pma, unless it is "an anonymous work, a pseudonymous work, or a work made for hire" in which case it is 95 years from publication, or 120 from creation.

An unpublished work from an artist who died in 1853 would have had a "common law" copyright (right of first publication) until Jan 1 1978, after which it would have received federal protection as an unpublished work. That copyright would have expired Dec 31, 2002 unless the work was published before that date, in which case it persists until at least December 31, 2047. Jarnsax (talk) 14:12, 12 July 2024 (UTC)[reply]

As far as paintings not having a copyright in the US before 1897, this is wrong. The 1870 Copyright Act (in section 86) explicitly includes "paintings" in its list of eligible subject matter. Jarnsax (talk) 14:26, 12 July 2024 (UTC)[reply]

Belgian FOP and heavy retouching

The English version of {{FoP-Belgium}} it states «[...] provided that the reproduction or the communication of the work is as it is found there [...]» and if I'm not mistaken it restricts the modification that one can make on a photo. So, my question is if File:Asterix&Obelix Brussels-cropped2.png is an allowed DW of File:Comic wall Asterix & Obelix, Goscinny and Uderzo. Brussels.jpg. My intuition suggest it is not as the DW doesn't look like a photo taken on a mural and part of the DW is interpolating the gaps after removing the surrounding characters, but maybe the experts on the Belgian copyright have a different opinion. Günther Frager (talk) 18:31, 30 June 2024 (UTC)[reply]

@Günther Frager I can't speak on the condition imposed by the Belgian FoP that was lobbied by the Wikimedians there way back 2016 (ping @Romaine: who actively lobbied for introduction of FoP there). My understanding tells me that the FoP of Belgium seems aligning to its peers (Dutch FoP, German FoP), in which excessive modification to the point that the integrity of the depicted work is affected is already a breach of the FoP rules. Cropping out all surrounding elements (like the sky, ground or grass et cetera) so that the image consists of an exact reproduction of a building, sculpture et cetera is one of such excessive modifications. Germany, where FoP originated, does not allow radical forms of digital editing, such as changing the colors of their public monuments. JWilz12345 (Talk|Contrib's.) 01:49, 1 July 2024 (UTC)[reply]

@JWilz12345: How do you think rules like that are compatible with the whole "for any purpose" thing in the guidelines? --Adamant1 (talk) 01:54, 1 July 2024 (UTC)[reply]

@Adamant1 I cannot comment on the possible conflict of the German FoP to both commercial-type CC licenses (like {{CC-zero}} and {{CC-BY-SA-4.0}} and the FreedomDefined.org position that some German Wikimedians claimed as "extremist" and unrealistic, in the context of images of buildings and public monuments of Germany. It was debated on FoP talk page (see Commons talk:Freedom of panorama/Archive 1#Germany). Let's ping again the participants on that late-2000s discussion that have still contributed/made edits on Commons from 2022 up to this day: @H-stt, Historiograf, Wuselig, Jeff G., Micheletb, and ALE!: . At worst, meta:Creative Commons Foundation should have a public and solid statement regarding the nuances of Freedom of Panorama even in countries that we consider as having suitable FoP for Commons, like Germany, Belgium, the Netherlands, Malaysia, Hong Kong, mainland China, Singapore, India, Australia, and New Zealand. JWilz12345 (Talk|Contrib's.) 02:19, 1 July 2024 (UTC)[reply]

The Definition of Free Cultural Works is a good tool for identifying free licenses — that is, for defining what permissions a copyright holder must give in order for a work to be considered a free cultural work. While the Definition incidentally encompasses works whose copyright has expired, defining the bounds of the public domain was never its main purpose. This background should be taken into account especially with respect to the boundaries of exceptions to the rights of copyright holders and the boundaries of what kinds of works are subject to copyright in the first place. I think that some of the interpretations given on the page you link are too literal, and, by applying the Definition in a context where it was not meant to apply, sort of miss the forest for the trees.

I hope to make this make sense by addressing the US' FoP for architecture that @Clindberg discusses below. When the US joined the Berne Convention, it had to apply some form of copyright to architectural works per se, which it had never done before. In many (though not all) Berne parties (including those which joined before the US), there have long been exceptions to copyright which allow for pictures of buildings to be used freely. While Berne does not have a provision singling out this specific exception, it seems to easily fall within the freedom of member states to legislate exceptions to the exclusive right to reproduce a copyrighted work, as long as each exception "does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author."

In particular, this sort of exception makes perfect sense for architecture. The "normal exploitation" of architectural plans is done by constructing the building. The core interest of an architect is in the construction of buildings, not their depiction. Even in those (relatively few) countries which, like France, provide for the compensation of architects whenever a building they have designed is depicted in other art, the interest in the actual construction is necessarily more crucial, since those depictions cannot be made in the first place if the building is not actually constructed and placed somewhere where it may be photographed. The design of fantasy buildings — those one might see in a cartoon or video game — does not require actual architectural work, further emphasizing that the central interest of an architect is in the construction of actual buildings, rather than the depiction of mere appearances of buildings.

If we interpret the "for any purpose" clause entirely literally, then, presumably, any photo would be non-free which has, for instance:

Some de minimis copyrighted poster in the background... because the photo could be cropped to highlight that copyrighted element
Some copyrighted building... because someone could perhaps attempt to design and construct a new building based on its appearance in the photo

I think this ultra-strict interpretation of the Definition of Free Cultural Works is totally implausible, especially in light of the fact that it says that a free work remains a free work even when it (for instance) includes some limited quotes from non-free sources (with the caveat that those quotes themselves don't become free by incorporation) — not to mention the other exceptions in the Definition.

In terms of freedom, though, I think we can distinguish between architectural and non-architectural works by drawing the distinction I give above based on the purpose and use of a work type (i.e., the central interests). It is impossible to actually build a building just by manipulating a photo; transformation of a pictural representation back into an actual work of architecture which can be exploited is essentially impossible (it requires, in essence, doing the architecture all over again). In a country where there is architectural FoP, the normal re-use of a photo of a building is highly unlikely to interfere with the central aspects of normal exploitation of the architectural work per se.

Sculptures are easier to reproduce from a reference photo than buildings, and photos of sculptures are far closer to the sculpture's core normal exploitation than photos of an architect's building. So, even in a country where FoP for sculptures exists (I discuss the distinct matter of jurisdictional issues below) a photo that primarily depicts a sculpture is arguably "mostly non-free" because of how close to the central aspects of normal exploitation the reproduction gets. (Where you draw a line is a different question.) Still, though, the free aspects of the photograph — the positioning and lighting — can be worth something; the creation of a photo of a 3D work can normally create a new copyright, and so the licensing of the photo as a free work is still potentially relevant. Relatedly, casting the work from a 3D sculpture into a 2D image is transformative rather than being completely literal copying.

For flat images, though, matters are quite different. If the image is copyrighted, then the reproduction of the flat image is the main way in which the work is normally exploited, and the work can trivially (and perhaps carelessly) reused in exactly the same way the work itself would normally be exploited. Even if the image is off-axis in the photograph, restoring it to its proper alignment is a technical and mechanical adjustment, not a creative one; in most countries, it is unlikely that a simple photograph of a mural would even quality as an original work. Extracting the original 2D image from a (even potentially off-axis) photo of a mural is the reproduction of the original creative work in its actual form, with no transformation whatever. This is akin to scanning a 3D sculpture or getting the architectural plans of a building. Even where FoP does apply to 2D works, it is almost always primarily intended to allow for the capture of entire scenes, not for the duplication of the 2D artwork itself, just as the freedom of panorama in a sculpture garden would not permit the 3D scanning and duplication of the copyrighted sculptures.

To whatever extent the Definition of Free Cultural Works (as opposed to jurisdictional issues/legal requirements, which are entirely distinct) is an important factor, I think this test can be used to roughly estimate the prominence of the non-free portion of the work in comparison with the free portion. Taking this info account:

Photos of buildings — Highly unlikely to interfere with core exploitation of architectural work (construction). Photograph itself is generally copyrightable (positioning, selection, angles, etc.) and its licensing as a free cultural work is valuable. Free work with small non-free component.
Landscape with de minimis inclusion of non-free elements — Difficulty of interference by a user who wants to interfere with core exploitation depends (on kind of work, how it's depicted, what quality is even left in its context, etc). Nevertheless, the non-free component is necessarily small in comparison to the free work itself.
Photos of sculptures/3D art — Transformative, but has significant potential to interfere with core exploitation (both because sculptures can be made AND because derivative photographs are more key to exploitation of sculptures than to that of buildings). Photograph itself is usually copyrightable (positioning, selection, angles, etc.) and its licensing as a free cultural work is valuable. Free work with potentially significant non-free component.
Photos of 2D art — Interferes almost trivially with core exploitation. To the extent that it is a faithful reproduction of the image, almost always uncopyrightable (compare PD-Art). Status as an actual "work" is debatable to begin with, and if the real work depicted is non-free, this is at best a fundamentally non-free work with a thin "free" wrapping.

D. Benjamin Miller (talk) 23:13, 3 July 2024 (UTC)[reply]

Hi Günther Frager, The example File:Asterix&Obelix Brussels-cropped2.png is modified, shows only a part of the image and no longer the situation as it is on the location. FoP in Belgium states that objects photographed are allowed as long as they are depicted as on location. As that is no longer the case here, this image is copyrighted and not allowed on Commons. (PS: I lobbied in the Belgian parliament for FoP and FoP came officially in force in 2016.) Romaine (talk) 02:26, 1 July 2024 (UTC)[reply]

The Berne Convention allows FoP type of limitations to copyright, but they also say that any such allowed uses cannot go to the point they prejudice the normal exploitation of the work -- I've always taken that to mean you can't make a sculpture of a sculpture, or make an effective copy of a 2-D work by cropping to just that work and exclude its public context, etc. I think once you remove the public context, you are also going outside any FoP permissions, and are a direct usage of the original work (i.e. the photographic expression, the work using FoP, is gone). It is a direct usage/derivative of the original, without the photographic expression being present. So, I would say this is a problem. We have always accepted that as an OK limitation to host FoP works -- you can make a derivative work of the photograph, but not to the point there is no photograph left. Carl Lindberg (talk) 05:00, 1 July 2024 (UTC)[reply]

@Clindberg the Berne Convention does not mention anything resembling FoP. It only states that member states can make a list of exceptions/limitations to copyright, as long as normal exploitation of the work is not prejudiced. FoP may be one of these limitations, but there are also limitations on educational, research, and other uses. At least, there was an attempt in the past to have an architectural FoP be explicitly-mentioned in the treaty, from the meetings between WIPO and UNESCO in 1986 (see meta:Freedom of Panorama#A close call: 1986 WIPO-UNESCO proposal for global architectural FoP). For some reason, though, no such architectural FoP provision is present in the treaty. In fact, a few scholars and architects, like Architect Clark Thiel (1990), argued that the American FoP (Section 120(a) of U.S. Copyright Act) is a violation of the treaty, since the treaty "requires that copyright protection extend to the exclusive right of adaptation for all protected works, including architectural works." Unsure if there is anti-FoP sentiment among a few American architects and scholars today. JWilz12345 (Talk|Contrib's.) 05:16, 1 July 2024 (UTC)[reply]

Correct, Berne does not mention FoP, but does restrict limitations such that the normal exploitation is not prejudiced. Effectively making a copy of the work on display is pretty much squarely in direct competition with the original, and I think would violate that Berne clause. FoP clauses are typically in the list of limitation clauses that laws have, pursuant to that Berne article. So I don't think FoP provisions can go that far. Interesting that a Berne clause specifically about architecture was discussed. I don't think the U.S. law violates Berne -- another architect making a derivative work of a building is a problem without permission; architecture has derivative work protection. The law simply states that the specific case of photographs of buildings (located in public places) are not derivative works basically (it's not within the scope of the architectural copyright). It's in line with FoP clauses elsewhere. Photographs of buildings are not part of the "normal exploitation" of a building. Carl Lindberg (talk) 05:46, 1 July 2024 (UTC)[reply]

@Clindberg I think that the minority group of U.S. architects who opposed AWCPA's Sec. 120(a) way back in early 1990s based their arguments on the French copyright rules, that unambiguously does not allow commercial uses of images of architecture. Still, at least in a small circle within the scholarly and architectural community, the Section 120(a)'s compliance with the Berne has been put into question. JWilz12345 (Talk|Contrib's.) 06:02, 1 July 2024 (UTC)[reply]

That was from when the law was first going in, and architecture (beyond the drawing copyright of plans) was getting protection for the first time. The U.S. law also plainly stated that the text of the Berne Convention is not legally binding in the U.S.; only the text of the incorporating law. They could file a complaint with the WTO these days I guess but that type of limitation seems clearly in line with what Berne allows. (The U.S. did try to avoid restoring copyright; countries did complain about that, which eventually led to the URAA restorations as that was the compromise.) What France chooses to allow has no effect in the U.S. I don't think there is any serious challenge to it; the lawmakers clearly did not want to change the ability to take photos of buildings which had been fine forever in the U.S. Carl Lindberg (talk) 06:08, 1 July 2024 (UTC)[reply]

The picture being in Bruxelles, Belgian law applies. It states two conditions :

«the reproduction [...] is as it is found there», which implies that the picture cannot be edited and modified.
«this reproduction [...] does not cause unreasonable harm to the legitimate interests of the author», which means that it cannot be used comercially without limits (as explicited by the legistative discussion).

Tipically, File:Asterix&Obelix Brussels-cropped2.png cannot be printed on a T-shirt to be commercialized, which is equivalent in effect to a CC-NC licence, not accepted on Commons (even though its presence in Wikipedia pages would be legal with respect to that point of view). But in the first place, its being cropped and edited infringes the first condition, which is equivalent in effect to a CC-ND clause in that case. The picture therefore cannot be uploaded on Commons and must be deleted.

Freedom of panorama in Belgium allows for instance pictures of the atomium, because such pictures can be reproduced without authorization or payment, and their reproduction cannot cause an unreasonable harm to the author's rights. This is why it is acceptable on Commons. It does allow for pictures like File:Comic wall Asterix & Obelix, Goscinny and Uderzo. Brussels.jpg, because the wall is reproduced as-is, and that reproduction does no harm to Uderzo's interests. But {{FoP-Belgium}} is definitively not equivalent to a CC-BY-SA, so derivative works should be considered with caution. This is why it is in Category:Restriction tags. It is the same problem as with the de minimis clause : a picture may be acceptable on commons even though an excerpt of it would not, it is the responsibility of the editor to remain within the legal limits.

Michelet-密是力 (talk) 08:17, 1 July 2024 (UTC)[reply]

My (very limited) understanding of the Belgian law is that while cropping of the mural is permitted, isolating elements is not, as they don't appear as shown on the public wall. Here both the individual figures have to go as copyvios. h-stt !? 18:02, 1 July 2024 (UTC)[reply]

This entire discussion highlights the legal and practical absurdity of the Commons community's position on the freedom of panorama.

First and foremost, Wikimedia Commons is based and hosted in the United States. Much as a work falling into the public domain in its country of origin does not mean it enters the public domain in the United States, some exception or limitation to copyright law in a foreign country does not mean that limitation or exception applies in the United States. Under United States copyright law, photographs of buildings don't infringe a copyright in the architecture depicted. However, photographs of artwork do reproduce that artwork, and, where that artwork is not in the public domain in the US, such photographs can be infringing.

The basic argument here boils down to:

Claim: This work is displayed in a public place in Belgium.
- This much I think we can all acknowledge.
Claim: There is a "freedom of panorama" exception in Belgium that allows for the free reproduction of this work.
- This much is not exactly true. There is an exception, but it is highly limited. I have consulted the source, which is available in its official and authoritative form on WIPO-Lex in both Dutch and French. Here is my translation (from the French), for those who do not understand French or Dutch:
  Art. XI.190. When a work has been lawfully disseminated, the author cannot prohibit: [...]
  2/1. the reproduction and communication to the public of works of plastic, graphical or architectural art designed to be placed permanently in public places, so long as such reproduction or communication is of the work as it is found [in that public space] and neither interferes with the normal exploitation of the work nor unjustly prejudices the legitimate interests of the author.
- There are two key problems here, which mean that this "freedom of panorama" is actually quite limited, and clearly does not allow the kind of use we see here.
  1. The reproduction must depict the work as it is found in the place where it is displayed (telle qu'elle s'y trouve). There are two potential readings of this clause, both of which cause problems.
    1. The work must be displayed within the context of the place where it is found, and cannot be separated from that context — since it would then be reproduced in a way other than that in which it is actually found on display. In other words, isolation of the work and its separation from the situation in which it is displayed would be outside of the scope of the exception.
    2. The work can only be reproduced in the form in which it is displayed, and the exception only applies if no changes are made. In this case, retouching of the work would be outside of the scope of the exception.
  2. The reproduction of the work cannot interfere with the normal exploitation of the work or prejudice the legitimate interests of the author.
    - The reuse of the isolated work within many contexts would interfere with the normal exploitation of the underlying copyrighted work. For instance, if these drawings of Astérix and Obélix were used as the basis for new derivative works (comic books featuring these character designs), that would clearly interfere with the legitimate interests of the author — or otherwise copyrights would become worthless in Belgium for any work permanently exhibited in a public place.
- My real question is this. What was the meaning of the law? Which of the following was intended?
  1. (As some propose) That any work permanently displayed in a public place is, for most intents and purposes, fair game to be reproduced and reused, including in derivative works? That is, that the display of comic book characters in an authorized poster or mural would mean that these characters could be freely reproduced in other contexts (e.g., in a collage) as long as the user could point back to this public display?
  2. (Or, as I propose) That the exception is intended only as a limited one, allowing for the reproduction of images of public spaces, even where copyrighted artwork is displayed within that public space — as long as the purpose behind the reproduction was not to interfere with the interests of the copyright holder of the artwork? I think the intended meaning is that, say, a picture of the unmodified mural could be included as a prominent part of a depiction of the public place in which it is displayed, but that most depictions of the mural itself, or of its constituent elements, would not fall within the exception. The purpose of the law was clearly not to make any item on public display freely reusable — only to allow for easier photography of public places themselves, with strict limits on reuse of those work outside of the depiction of how they are publicly displayed (telles qu'elles s'y trouvent).
- The mural itself is a comic book illustration recontextualized by its display on a public wall. I cannot understand any sensible explanation for how undoing that recontextualization by isolating the illustration and placing it back in the essential form of the illustration itself (whether in print or on a computer screen) would be any different from taking the image from an original comic book page direction. I'll acknowledge that within a certain new context, use of an image of the character Astérix might fall under the other more general exceptions in Belgian law (which, though narrower, are the rough conceptual equivalent of fair use in US law). Whether the illustration is sourced from a wall or a printed page, the effect on the interests of the author are the same. The depiction of a work's public display is another specific context in which a limited reuse can be made (similar to other reproductions which do not affect the core interests of the author), not a free pass for general reuse.
Separate Claim: It is OK to reuse this work freely on Wikimedia Commons (based in the United States) on the theory that exceptions in foreign copyright law can be applied within the US context.
- I find this claim extremely implausible. It is true that there is a lack of US case law on the specific issue of foreign freedom of panorama laws. However, the notion that foreign exceptions to copyright are intended to apply in the United States is without any real justification. It is clear, for instance, that US law, not foreign law, determines a work's term of copyright in the United States; this term may be longer or shorter than that in other countries. While in certain cases (e.g., determining the ownership of a copyright), foreign law may be relevant, there are specific reasons why, and those are the exception, not the rule.
  - In particular, the TRIPS Agreement's provision on National Treatment (TRIPS, Part I, Article 3) requires that each country grant IP protections to foreign nationals no less favorable than that accorded to its own nationals, subject to the exceptions provided for in existing conventions. The Berne Convention allows for both exceptions based on use (which can be used to carve out exceptions such as fair use, as the US does). But the exception allowing for fair use is not an exception to the national treatment rule, unlike the rule of the shorter term (which is allowed but not required under the Berne Convention, and which the US does not apply, except for determining URAA restoration eligibility). The US allowing for fair use on an equal basis for works (independent of the nation of origin) is OK; allowing for the application of exceptions from foreign law specifically in order to weaken protections based on the source country of a work is a clear violation of the National Treatment principle.
  - Similarly, the Berne Convention says (in Article 5), "[A]part from the provisions of this Convention, the extent of protection, as well as the means of redress afforded to the author to protect his rights, shall be governed exclusively by the laws of the country where protection is claimed." No provision provides for the application of foreign exceptions appears in the Berne Convention.
  - Some editors point to the Oldenburg DMCA claim, where a DMCA takedown notice issued for pictures of a statue located in Germany was complied with by WMF Legal, as a sign that the WMF "endorses" lex loci protectionis (i.e., the application of US law, despite whatever exceptions may exist in a foreign law) to Commons. While I think this "endorsement" is correct, it is really not important whether or not the WMF "endorses" the principle; it is important what the principle is.
  - This is a more general issue — one for a separate and larger conversation — but one which WMF Legal really needs to address. Right now, Commons users generally feel free to reproduce objects found in public spaces, so long as the country in which the item is displayed (or from which the picture is taken, but that's the same country 99.9999% of the time) has some sort of freedom of panorama-type exception allowing for such reproduction.
    - US law says this is fine for buildings — but not for copyrighted sculptures or murals. So there is a ton of content which is non-free in the US, even if free in its country of display. (As we see in this case, though, the freedom of panorama exception is not necessarily a free-for-all permission to reuse the work. In many cases, the exceptions are limited in scope and rather context-dependent — much like other exceptions, such as fair use.)
    - While some uses of depictions of publicly displayed (non-architectural) art might be acceptable under US law's fair use provisions, this depends on the actual use made; such images are not free to use for any purpose. (Nor, in many cases, are they free to use for many purposes in the country of display.) These works are not free in the sense required by the Definition of Free Cultural Works, which is the sense incorporated into the Wikimedia Licensing Policy. And Wikimedia Commons has never adopted an Exemption Doctrine Policy defining the context in which non-free works may be used on the project.
Implied Claim: Belgium is the relevant source country for this work.
- Even if we accept the application of foreign copyright exceptions under US law (which, as I detail above, we shouldn't), I don't think this is really plausible. This is, as discussed, either a direct reproduction or close derivative of artwork from the Astérix comic books. The Astérix characters were designed and first drawn by the French artist Albert Uderzo, and the original works were published in France. The fact that artwork from Astérix was later displayed in Belgium doesn't make this a "Belgian" work — why should the Belgian exceptions apply just because a French work happened to be displayed in Belgium.
  - What this rule amounts to — and this is one that is commonly naively applied in Commons FoP cases — is the application of whichever country's exceptions can be seen as the most relaxed. When the same work is displayed in multiple countries, where some have an exception which can plausibly used to justify reproduction, while others do not, the de facto Commons community position is that whichever exception is the most liberal can be used to justify the (worldwide/US) reproduction of the work.
  - Taking this rule seriously, reproduction of a work first published in the US by an American author can be justified on Commons if a copy of this work can be found on public display in a country whose FoP exception is interpreted by the Commons community as allowing such reproduction. There are many such cases relating to US-origin cartoon characters on Commons. (While this mural is authorized by the Astérix copyright holders, the Commons community seems to apply FoP even to clearly unauthorized graffiti of cartoon characters, allowing for an absurd kind of FoP-laundering whereby a copyrighted image can be uploaded to Commons as long as it is a photo of a pirated copy put on a wall in a public place in the right country.)
- This relates to a more general problems with the "country of origin" principle. The "country of origin" of a copyrighted work is not necessarily the country where it is displayed, nor the country with which it is popularly associated, nor the country in which it was created or even just a single country (as various countries could consider a work to be a domestic work under their own law, e.g., based on publication or the nationality of the author).
- The country of origin principle is problematic for works displayed in multiple countries, or which are derivative of works from another country. The display in Belgium comes long after initial publication of Astérix, but it is undeniably the display (either directly or as a derivative work) of the original Astérix illustrations and/or characters. Was the original Astérix comic even simultaneously published in Belgium and France? It's plausible, but, for all the previously given reasons, that's highly unlikely to have any relevance.
- Under the Berne Convention, simultaneous publication means that one image can have multiple countries of origin; a foreign work is considered . Depending on how this is interpreted, this image could be considered a domestic work by many countries (those which recognize it as "published" because it is, through Commons, accessible in that country), in the US (because Commons is based in and serves files from the US) and so on.
- The US incorporates its own "source country" test into the URAA. Under that test (Copyright Office explainer), the (single) source country for non-US works simultaneously published in multiple countries is determined based on which country has the strongest connection to the work. Being exclusively created by French authors in France, and without any potential ties to Belgium other than (let's hypothesize, for the sake of argument) simultaneous publication there, the underlying work here is a French one, not a Belgian one. (And France infamously does not have any FoP exception that could plausibly support reproducing murals in this context.)

TL;DR: These images are not eligible for Commons.

There are significant restrictions on Belgian FoP, meaning these images are non-free (by any sensible reading of the Definition of Free Cultural Works) even upon applying the most liberal reading of the Belgian exception
- This is especially true for elements of murals. While the same exception (textually) applies to works of architecture in the Belgian law, there is little practical chance that a photo of a building can be easily transformed back into an actual building design (compare the US law's allowance for photos of buildings but prohibition on building a new building based on a copyrighted design); these drawings have already been transformed into (essesntially) the best form for infringing upon the author's (still protected) interests.
It's highly implausible that foreign copyright exceptions ever apply directly in the US — and Commons is based in the US.
- US copyright exceptions might sometimes apply in the same circumstances where Belgian ones do, but this is totally different from Belgian exceptions applying in the US.
Even if foreign copyright exceptions did apply under US law, this is either a French-origin work which happens to also be displayed in Belgium or derived from a French-origin work.

D. Benjamin Miller (talk) 21:55, 3 July 2024 (UTC)[reply]

@D. Benjamin Miller @Micheletb the current version of the Belgian law excludes the final part, being confined up to the condition that the work must be depicted as it is found there. See COM:FOP Belgium note on the latest amendment which I added a long time ago. JWilz12345 (Talk|Contrib's.) 23:31, 3 July 2024 (UTC)[reply]

Good catch. You're right that this isn't the latest version, but you're wrong to think that the condition was removed. The version in WIPO-Lex is apparently a few months older than the current version of the law. The current version does omit the "normal exploitation" condition from that clause. But that's only because it was moved to another clause. This restriction still fully applies (it's part of how Belgium implements the Berne three-step test); it's just put in one place rather than repeated in different sections.

In the current version of the law, we find the following article, added in the 2022 amendment:

Art. XI.192/3 The exceptions provided for in articles XI.189, XI.190, XI.191, XI.191/1, XI.191/2, XI/192 (Section 1, Paragraph 2), XI.192/1 and XI.192/2 are only applicable insofar as much as they do not affect the normal exploitation of the work or database and so not unjustly prejudice the legitimate interests of the rightsholder.

As this exception falls under Art. XI.190, this restriction on its application still applies. Accordingly, I am going to edit the COM:FOP Belgium page in order to reflect what the law actually says. D. Benjamin Miller (talk) 00:05, 4 July 2024 (UTC)[reply]

The "normal exploitation" wording is part of the Berne Convention, so any country where that is self-executing (a good many of them) that limitation is in the law even if not explicitly mentioned. Even where countries have 2-D FoP, I don't think you can crop to just the work (since that would compete directly in the marketplace with a copy or print from the original copyright owner). A 3-D sculpture is usually fine, if there are FoP provisions, but particularly for 2-D, it really should almost aways show the public context. Carl Lindberg (talk) 20:17, 4 July 2024 (UTC)[reply]

@D. Benjamin Miller going back to the Asterix case, based on your analysis, should all images at Category:Parcours BD (Astérix et Obélix) be filed for deletion? Per w:en:Asterix#Publication history, it appears the first instance of publication was in a French magazine in 1959. JWilz12345 (Talk|Contrib's.) 23:27, 4 July 2024 (UTC)[reply]

I opened an extended topic at the section "Copyrighted characters from no-FoP states displayed as murals et cetera in yes-FoP states" below, as it may also impact hundreds of images and Flickr / panoramio imports. Some past deletion requests with "kept" closures may need to be reassessed and (if found to be showing a character from a no-FoP country like France, Japan or U.S.), reopened/renominated. JWilz12345 (Talk|Contrib's.) 06:59, 5 July 2024 (UTC)[reply]

Comment I opened Commons:Deletion requests/Files uploaded by Rundvald with the images discussed here, and others that remove the public elements of murals. Günther Frager (talk) 07:47, 12 July 2024 (UTC)[reply]

How much do we actually care about paintings being in the public domain in the United States?

{{PD-old}} says that "You must also include a United States public domain tag to indicate why this work is in the public domain in the United States.". This is very rarely done, and when it is, it's usually simply marking it as "expired" without providing any evidence of the fact. For example, File:Henry Clive - Sultana.jpg is featured, but was it published before 1929, not just painted or exhibited then? (See en:Wikipedia:Public_domain#Publication.) See, for example, some of the deletion requests on enwiki in en:Wikipedia:Files_for_discussion/2024_July_4. Some (for example, en:File:Henri Matisse, 1909, Still Life with Dance, oil on canvas, 89.5 x 117.5 cm, Hermitage Museum, Saint Petersburg.jpg) have publication information, but most do not, and almost none here do; if they do, there's no obvious way of indicating the actual evidence in the copyright tag. Are we just cavalierly ignoring the actual copyright rules and hoping for the best here? grendel|khan 14:24, 7 July 2024 (UTC)[reply]

I certainly agree with your general point that actual research should be conducted before slapping on a {{PD-US-expired}} tag, and that such a tag is clearly necessary.

Regarding specifically Henry Clive's Sultana, it seems to have originally been commissioned as calendar art, and seems indeed to have been published by the Louis F. Dow Calendar Company upon completion in 1925 (cf. this gallery page). Felix QW (talk) 14:53, 7 July 2024 (UTC)[reply]

I think the evidence should certainly be included on the page; perhaps one could use the "permission" field in the information template for this purpose? Those using the {{Artwork}} template can make use of the "exhibition history" field as well. Felix QW (talk) 14:54, 7 July 2024 (UTC)[reply]

I'd be more comfortable if it was part of the license tag in some way. The situation can be pretty complicated, and I'd like to be able to deterministically scan for files with incomplete copyright information. grendel|khan 17:05, 7 July 2024 (UTC)[reply]

As far as I am aware, we usually indicate the evidence for the license separately from the actual license tag, probably just because it can be pretty complicated. The only "deterministic" method is to look for files with no US copyright tag whatsoever; for everything else, one has to check the file page itself more closely. Felix QW (talk) 17:27, 7 July 2024 (UTC)[reply]

Yes, it is complicated. For non-US works, it depends on the definition of publication in the country of origin. I think that in most cases, if a painting was displayed in a place accessible to the public, it counts as publication. Also when a gallery displays works of art, it usually also publishes a catalog, so the works are also printed. Yann (talk) 18:02, 7 July 2024 (UTC)[reply]

Catalog, yes; public exhibition, no. This is counterintuitive, but see en:Wikipedia:Public_domain#Publication as pointed out above; US copyright law and the Berne Convention agree that, in short, "A work is published when tangible copies of it are made available to the public at large.". Exhibition or performance alone do not constitute publication. grendel|khan 18:07, 7 July 2024 (UTC)[reply]

Presumably, the US definition matters for the US copyright and the source country definition matters for the source country copyright. According to COM:Public art and copyrights in the US, the definition of publication seems to has changed in 1978, with the previously adopted concept being significantly more liberal. According to the commentary on the page I just mentioned, this includes exhibition without preventing copying, or sale of the original. For post-1978 publication events, neither of those acts seem to suffice for publication. Felix QW (talk) 19:24, 7 July 2024 (UTC)[reply]

@Grendelkhan: I believe in the era in question, in the U.S., public display was considered publication, even if that is no longer the case. Could someone more expert please weigh in on that? - Jmabel ! talk 19:35, 7 July 2024 (UTC)[reply]

https://chart.copyrightdata.com/c01B.html says that in American Tobacco Co. vs Werckmeister 207 U.S. 284 (12-2-1907) (be careful with that; the plaintiffs and defendants apparently went back to the courts several times) the court ruled that display without stopping copying would have made the painting published.--Prosfilaes (talk) 20:27, 7 July 2024 (UTC)[reply]

The current definition of publication only started in 1978 (as it came with the 1976 Copyright Act). Before then there was no definition in the law, and courts had to come up with some definitions. As mentioned in the Werckmeister case, the judges hinted that exhibition with no attempt to stop copying (by photography or drawing) could amount to publication. See Commons:Public art and copyrights in the US. Selling the painting may also qualify. (The dividing line between limited publication which did not lose copyright, and general publication which did, differed between judicial circuits so there are few clear-cut lines.) Most works are made to be published, so we often do assume publication near the date of creation, unless there is some evidence that shows that may have been delayed (such as the painter kept the painting themselves, or remained in the family for a long time). COM:PRP is for significant doubts; long-delayed publication is theoretically possible but less likely than under today's rules. We don't delete under any theoretical doubt; there should be some indication that this work had something a little abnormal happen to it. Carl Lindberg (talk) 21:03, 7 July 2024 (UTC)[reply]

Yes, that's what I mean above. Yann (talk) 21:13, 7 July 2024 (UTC)[reply]

No, for these old non-US paintings, the date of publication (under US law) should not depend on the definition of publication under the laws of the country of origin, but only the definition under US law. Additionally, since we are only speaking about pre-1978 paintings, only the pre-1978 definition of publication is relevant, as Clindberg says. American Tobacco Co. v. Werckmeister held that (under the pre-1978 definition) paintings and drawings, unlike books, are published by inspection and observation, and public display without a copyright notice or measures to prevent any copying constituted publication. (Additionally, this case specifically had to do with an exhibition outside the United States.)

The correct conclusion is that, as @Prosfilaes and @Jmabel say, pre-1978 exhibition of a painting or drawing constituted publication, and that such publication, made without a proper copyright notice (and renewal, if necessary) would put the painting in the public domain. Even if there were a notice, though, any painting published (so, exhibited without such measures taken to prevent copying as to preserve its common law copyright as an unpublished work) in 1928 or earlier, anywhere in the world, is in the public domain in the United States.

Most paintings were displayed publicly, and in most cases there was not this kind of rigid enforcement preventing copying which would have prevented publication. (Remember, also, that nobody needs to have actually copied the painting at that time; the important thing is that there was no systemic prevention of observation close enough as to allow for copying.) D. Benjamin Miller (talk) 21:58, 7 July 2024 (UTC)[reply]

This would be extremely convenient, but it doesn't match up with existing policy as written on enwiki or at COM:PUBLISH. The interpretation that the pre-1978 definition applies to pre-1978 paintings (and the pre-1978 definition itself) does not appear on these pages.

Furthermore, we can't just assume that, say, a 1928 painting was never published. Given the explicitly started rules, if it was painted in 1928 but first published in, say, 1931, it would still be under copyright under US rules. (Non-renewal was mentioned elsewhere; that's only relevant if the author is American.) Commons:Public art and copyrights in the US is the work of one intern, and seems to apply only to permanent installations, and contradicts the main page on publication.

Maybe I'm wrong, but if I am, so is our documentation on copyright law. At best, it's contradictory, and we should make better sense of it. grendel|khan 09:16, 8 July 2024 (UTC)[reply]

There isn't really policy as much as legal opinion on these copyright matters at Commons. As far as policy goes, it essentially boils down to "should be in the public domain in both the US and the source country". And while COM:PUBLISH should probably be improved, at least it does contain a link to COM:Public art and copyrights in the US. Apparently, that page was actually originally written by an attorney interning for the WMF, which may be as close to a professional statement on the matter as we at Commons are likely to have. Felix QW (talk) 09:29, 8 July 2024 (UTC)[reply]

As @Felix QW says, publication is determined by what the law says, not what COM:PUBLISH (a simplified summary of the law) does. I don't have my citation handy, but the old definition applies to pre-1978 publications. More broadly, the 1976 Act was not supposed to alter the terms of pre-1978 works — as retroactively seeming them unpublished would have. D. Benjamin Miller (talk) 14:15, 8 July 2024 (UTC)[reply]

You are right, of course, that being created in 1928 or earlier does not imply publication in 1928 or earlier. I was talking mostly about paintings which are very old (think 1700s) but which have no US tag. A 1928 painting could have not been published until 1931 and could still be copyrighted.

As an aside, renewal is not only relevant for works by American artists, but also works first published in the US (per US definition) and works which were in the public domain in their source country on the URAA date (usually January 1, 1996). D. Benjamin Miller (talk) 14:24, 8 July 2024 (UTC)[reply]

We certainly have to care about the paintings being in the public domain in the United States. But most of these paintings are clearly in the public domain in the US — just not tagged properly. The lack of a proper US tag is a problem, but not a huge one. It's a more general problem, actually; lots of old items are just marked "PD-old" without a US license, including (for instance) items published in books in the 1800s which are in the public domain in the US without question. D. Benjamin Miller (talk) 21:50, 7 July 2024 (UTC)[reply]

@D. Benjamin Miller: Hi, I don't understand why for a European painting published in Europe, we should use the US definition of publication, but I otherwise agree with your reasoning. Yann (talk) 19:38, 8 July 2024 (UTC)[reply]

The US definition of publication determines whether or not an item was considered published according to US law — whether that publication took place in the US or abroad. For example, all works published in 1928 and earlier are in the public domain in the US, whether published in the US or abroad; the same definition is used to determine whether a work is published or not, wherever that act might have taken place. For instance, if Country X defined performing a play as publication, this would not matter for US law, since, under US law, performance of a play was not publication. See, for example, US cases of that era dealing with when foreign (usually British) plays were published; they apply the US law definition of publication on the basis the actions which took place outside the US. Of, course, the definition of publication in British law (or whatever country's law) would be used for determining whether or not publication took place according to that country's law, and this could determine the copyright status of the work in that country. But, except in circumstances where publication in the source country determines whether or not the work was in the public domain in its source country on the URAA date, the copyright status in the home country (determined by publication or other factors) doesn't determine US copyright status. D. Benjamin Miller (talk) 20:12, 8 July 2024 (UTC)[reply]

It's not "clear" that these works are in the public domain in the United States according to stated policy. That's the whole problem. Now, maybe the policy as written should be changed to reflect a different interpretation of the law, like "for pre-1978 art, public exhibition counts as publication for US copyright status, and we assume in the absence of contrary evidence that paintings were exhibited within five years of completion". It's certainly not being followed as written, and people elsewhere seem to take the stricter interpretation seriously.

So, should the stated policy at COM:PUBLISH be rewritten to reflect that for pre-1978 works, for US copyright status, public exhibition counts as publication for our purposes? grendel|khan 07:02, 12 July 2024 (UTC)[reply]

Some groups take a conservative interpretation to be absolutely sure. The group you links takes publication more than 95 years ago as the rule. However, it could be published without notice or published with notice and failure to renew in the US, or published without notice or with failure to renew outside the US by an artist who died before 1926 (life+70 nations) or 1946 (life+50 nations), or never have been published before 2002 by an artist who died more than 70 years ago, and therefore be in the public domain.--Prosfilaes (talk) 00:47, 13 July 2024 (UTC)[reply]

It's not at all safe to assume that any given painting was exhibited publicly within some arbitrary timespan from its creation. Many paintings are given as a gift, sold as a commissioned work, kept by the artist, offered directly for sale to a known patron, or otherwise not made available to the public. To assume, without any specific facts, that a painting was published, is not in keeping with the precautionary principle.

Any artworks with a PD-US assertion based on publication before 1978 should really be accompanied with some citations to confirm when publication occurred. But the vast majority of them are lacking those citations. I've often thought that we should have some template to point out that a PD assertion is lacking in supporting facts, like a less harsh version of {{Disputed}}, so reusers would be on notice to take the assertion with a grain of salt. Toohool (talk) 02:47, 15 July 2024 (UTC)[reply]

I agree that there is no reason to assume exhibition within an arbitrary timespan. However, in many cases, it should not be necessary to establish the exact date of first publication in all cases. In particular, since exhibition can be continuous, an old painting which is known (or, from particular circumstances, can be reasonably understood) to have been exhibited at some point over 95 years ago is in the public domain, even if the exact date of first exhibition can't be established.

Also, any work that was published via public exhibition without restriction (or publication in print without notice, etc.) at some point before 1978 (before March 1989 for print copies), anywhere in the world, and which was in the public domain under the laws of its source country as of 1996, is in the public domain in the US due to URAA ineligibility, even if not published in 1929 or earlier.

D. Benjamin Miller (talk) 14:07, 15 July 2024 (UTC)[reply]

Policy and laws

I'm sure the following remarks with particular reference to several recent discussions (how to handle FoP in origin country vs. U.S.; some issues about how we determine whether and when a work of art in the early 20th Century was published; etc) will be controversial, but I think it needs to be said.

While we certainly need to try to make sure our policy conforms to laws, especially U.S. laws, it is not part of our precautionary principle to always opt for the most restrictive imaginable interpretation of laws in matters where we do not yet have clear legal precedent. Even for those of the participants in these discussions who happen to be lawyers, unless you are from the legal department of WMF, Wikimedia is presumably not your client. Of course your informed opinions are welcome, but you should not expect to have your legal advice accepted as if we were your client.

I wish I were in a position to quote individuals in what I am about to say, but I'm not. Two different people from the legal department of WMF have remarked to me that in general they find Commons' interpretations of copyright law overly conservative and restrictive. I for one keep that in mind when people suggest tightening down even further. I realize the rest of you have nothing here to go on in this respect but my word (though I'd greatly appreciate it if others could weigh in and say if you have also heard similar things informally, or if you have heard anything to the contrary).

Policy should be set to be good policy. If we are inclined to tighten our policies because we fear current policies may not be legal, it seems to me that we should be seeking advice from the lawyers who have a fiduciary responsibility to the Foundation, not taking quasi-legal advice from lawyers and non-lawyers with no fiduciary responsibility in the matter.

Note that these remarks are strictly about setting policy, not about discussions of individual photos, text content, etc. I would not expect WMF Legal to get involved in such small matters unless there were an actual case at hand in which the Foundation's interests arise.

I don't want to get dragged into an argument here. I've said my piece and I will not comment further on this thread unless pinged. - Jmabel ! talk 18:08, 8 July 2024 (UTC)[reply]

I actually mostly agree with you: I think that many of Commons' rules and many common Commons community interpretations are actually much stricter than the law requires and there are some related rules I think are bad ideas. For example:

I think the policy that all Commons files be free in both the US and the country of origin (rather than just the US) is a bad idea.
- Commons is based in the US, as is enwiki, and enwiki hosts PD-US-only files. There's no legal difference between hosting them on Commons or on enwiki. It makes little sense, in my view, to kneecap ourselves by voluntarily adding another set of restrictions on top of US law. Of course, there are some things that are not in the PD in the US which are in many other countries, but US law giveth and taketh away. On Commons, though, it really only taketh away, and I think that's a foolish choice for a free media repository. (I know this is unlikely to change, but it's just my opinion.)
- The way in which "country of origin" is interpreted on Commons doesn't really make a lot of sense sometimes, since simultaneous publication is a thing. (This applies especially for anything originally published on the internet/Commons.) There are a lot of things out there that were simultaneously published in the US and some other country, and at least some have, I imagine, been passed over for upload (or deleted) because the US is not the country in which the work was created, even if it is in the public domain in the US.
- The interpretation given of non-US law can be especially conservative, and, since a file being non-free in its home country makes it ineligible for Commons, a decent number of free files have been passed over despite being perfectly fine in the US. This applies especially to photos of non-US architecture. Since it's acceptable to take non-commercial photos of buildings even in the vast majority of "no-FoP-architecture" countries, I find the mass deletion of photos of modern buildings from many countries around the world to be foolish — and certainly not required by US law.
  - The claim that hosting pictures of French buildings is likely to lead to a lawsuit and get Wikipedia/Commons blocked in France is beyond absurd to me... especially as enwiki already has photos of those buildings.
- See also: deletion of files that become non-free in their country of origin when that country abolishes or modifies an exception or passes a retroactive term extension.
The Commons community can perhaps interpret the threshold of originality as being unreasonably low.
- It was taken on faith by many that UK law in fact would grant a copyright in a photo of a painting, for instance — see National Portrait Gallery and Wikimedia Foundation copyright dispute. But UK courts have since held such reproductions to be ineligible for copyright (THJ v. Sheridan), and there was case law which arguably laid the groundwork for that conclusion even then. The fact that the claims of the NPG were accepted by so many as authoritative at the time (in the UK, if not the US) — and, let's not even imagine how it would be if Bridgeman v. Corel had not already been decided — is a sign of just how low a bar some would think there is for enclosing the public domain.
- Many countries with (supposedly) low thresholds of originality have many PD-textlogo (and other simple files) removed. (Even if you accept a trivial TOI, which leads to its own absurdities, there is reason to think that many of these files posted on the internet could be considered simultaneously published in the US.)
- See above point about accepting the restrictions of stricter non-US copyright laws.
Many other issues, e.g., in some cases, people can adopt interpretations of CC licenses which would imply that they restrict the use of even non-copyrightable content, etc.

When it comes to actual determinations on legal questions and the adoption of a substantive position, I certainly agree that WMF Legal should be involved. (And, of course, the actual law is decided by courts and legislatures; Commons deletion discussions have no legal or precedential value.)

That being said, Commons and WMF policies are intentionally stricter than the law requires. So compliance with WMF policies — or the policies of Wikimedia projects — often requires going above and beyond what the law itself would allow. There would be no impediment to us hosting CC-ND licensed files here — but we choose not to because that license, while allowing for redistribution of a file, is not free in the sense required by the licensing policy. Along similar lines, the English Wikipedia's NFCC are significantly stricter than US fair use doctrine allows. This is, of course, on purpose — because the goal of the project is, to some extent, to be free content, and not just content. There have been some real upsides to that — and the WMF hosts a lot of really great stuff — but there are some debates you could have about some of those choices, too. D. Benjamin Miller (talk) 20:58, 8 July 2024 (UTC)[reply]

@D. Benjamin Miller@Jmabel may I ask that before making substantial changes to FoP policy of Commons, a proper consultation with Wikimedians from 80+ countries be made first? For example, Wikimedians from Singapore, Malaysia, and Brazil, if they are willing to have non-incidental (non-de minimis) images of Merlion and Christ the Redeemer to be taken down, as these are legally unfree in the U.S. (post-1929 sculptural monuments, covered by URAA so they won't be restored even during the lifetimes of most of the current members of Wikimedia communities in Singapore and Brazil). This shift – only to please U.S. law and obligations at U.S. courts/legal system – at the expense of the rights of Wikimedians in 80+ yes-FoP countries to host their numerous post-1929 sculptural monuments will certaibly have drastic consequences that will certainly affect Wikimedia movements on arts and culture in those countries. It will also be put into question if Wiki Loves Monuments will be viable once only U.S. FoP is going to be respected. Again, it is not U.S. Wikimedians that initiated it, it was Dutch Wikimedians that launched it – way back in 2010 – to cover photography of their buildings and monuments that are part of their heritage. It was expanded the next year to the entirety of Europe, and only reached overseas (including U.S.) in 2012. Photography and sharing of images of monuments through WLM and other photo competitions is one part of the Wikimedia movement that will certainly be affected by this shift to U.S. FoP law.

I will certainly

Oppose any attempt to change to U.S. FoP rule-only policy, unless most or all of Wikimedians from Brazil, Singapore, Netherlands, Belgium, U.K., Malaysia, etc. agree or concede to agree that only U.S. FoP law needs to be followed and that their hundreds of post-1929 sculptural monuments should not be hosted here anymore and the existing non-de minimis images of their monuments be removed from this site. Also, it means that South African, Philippine, and ESEAP FoP initiatives become pointless. For instance, Nelson Mandela and anti-apartheid monuments from South Africa won't be welcome here anymore, even if FoP is introduced in South Africa. JWilz12345 (Talk|Contrib's.) 23:48, 8 July 2024 (UTC)[reply]

There is no question that US law must be followed. There is no choice of following US law vs. not following US law. There is only the choice of following US law or following US law plus additional restrictions. The community can choose to make rules which are more restrictive than what US law allows — it cannot create new exceptions to the law. The question is what US law actually allows.

Hopefully, WMF Legal can give an interpretation of what US law allows and doesn't allow here. It's not up to the community to determine what the law requires. I have my reading of what the law says (not what I'd wish for it to say). But I'm not WMF Legal — it's up to them to decide what US legal position the WMF is willing to defend.

But also, "pointless"? Wikimedia Commons is not the only site on the internet. Wikimedians from (say) the UK cannot upload works by authors who died in 1953 but which were published in 1950 and aren't in the public domain in the US — even though they are in the UK, for instance. But they can host them in the UK or other countries where such works are in the public domain. D. Benjamin Miller (talk) 00:08, 9 July 2024 (UTC)[reply]

@D. Benjamin Miller re: "pointless", Wikimedia Commons is the only site where Wikimedians may be able to share or host their monuments, inclusive of post-1929 sculptural monuments, to widely disseminate their cultural heritage to the widest possible audiences. No other media repository site can do the same feat or achievement that Wikimedia Commons already did. We here in the Philippines do not have any local repository site, as many upload their photos through U.S.-hosted Instagram and Facebook. For sure, Singaporeans or even Malaysians do not have their media repository sites (that can rival or even surpass Wikimedia Commons) where they can freely share Merlion and other post-1929 sculptures. And note, the prime motivation for South Africans to introduce FoP in their country in the first place is for them to finally share their images of anti-apartheid monuments and Nelson Mandela statues on Wikimedia Commons (they have more heritage in statues and public sculptures than on their contemporary architecture). JWilz12345 (Talk|Contrib's.) 00:17, 9 July 2024 (UTC)[reply]

It's true that Commons is the largest site. But it's not the only website in the world. And you can start a site hosted in (for example) Germany or Canada fairly easily. But even if that's a huge inconvenience to non-US users, that doesn't have any impact on what US law says. It's irrelevant to the interpretation of US law.

Although you've said many times that the WMF can choose to ignore US law, this just isn't true, and it doesn't become true just because you'd like it to be or because it would be nice. (It might be nice if Golan v. Holder had gone the other way, too, but it didn't!) D. Benjamin Miller (talk) 00:24, 9 July 2024 (UTC)[reply]

I'll probably type out a lengthier explanation of my thoughts later, but I generally agree with Jmabel in that we are very conservative when it comes to copyright, and we can (if the community choses) expand on some things. I essentially believe our Yes-FOP is a de facto EDP as the community has chosen the additional burden of respecting non-American laws when works are not American, and I reject calls for US-onlyFOP rules. I agree with D. Benjamin Miller that the community can choose to allow non-commercial FOP because Wikimedia Commons is not a commercial site, but that would have to be something the community would clearly chose. We are a media repository, and eventually we'll have to reckon with governments and creators that may increasingly insist on non-commercial only licenses because of late stage capitalism and AI. Abzeronow (talk) 00:08, 10 July 2024 (UTC)[reply]

I agree with D. Benjamin Miller that the community can choose to allow non-commercial FOP because Wikimedia Commons is not a commercial site

I must clarify that, if this is your position, I don't think you agree with me. My interpretation is:

For architecture: broad exemption exists in US law. Thus:
- Buildings in US and FoP countries: perfectly OK to upload (and this is of course the rule already).
- Buildings in No-FoP countries: would be legal to upload (US site), but we have chosen to make a rule against it (which I think is a bad idea, but just my opinion).
For non-architectural works, where the presence of the work is not de minimis: no broad exemption exists in US law. Thus:
- Sculptures, etc., located in the US: already blocked.
- Sculptures, etc., located in countries with an exemption: allowed in practice — but I don't think this is broadly legal. The US has no FoP exemption for such works; there is only the more general fair use exemption. The fair use exemption does not allow for all non-commercial use.

To be totally clear, when anyone talks about my position on following "US-only FoP rules," know that it is the following:

I suggest allowing photos of buildings, even from countries which don't have FoP for buildings, because US law clearly allows this. That I think is definitely a choice the community can make (and compare PD-Art; I also think the arguments against both may be based on very conservative interpretations of non-US countries' copyright laws).
My position on non-architectural FoP, on the other hand, is that US law (fair use, since there is no specific FoP exemption) doesn't make any blanket allowance for it (even when non-commercial).

Crucially, I think that the "pros and cons" list presented by @JWilz12345 at Commons:Village_pump/Archive/2024/04#Pros_and_cons_of_mandating_U.S._copyright_law_sitewide presents these two issues as though the choices were connected, which makes no sense, because these are not connected at all. Whether or not you think US law allows for (foreign and/or non-commercial) sculptural FoP has nothing to do at all with whether you think we should choose to reject photos of buildings in countries where there is no architectural FoP.

D. Benjamin Miller (talk) 00:33, 10 July 2024 (UTC)[reply]

Past discussions on the same issue: on FoP talk page and Commons:Village pump/Archive/2024/04#Pros and cons of mandating U.S. copyright law sitewide. JWilz12345 (Talk|Contrib's.) 00:07, 9 July 2024 (UTC)[reply]

I think the question is what constitutes publication under US law is a significant policy question, and I'd like WMF legal to get involved in it, because there's clearly (a) significant disagreement, and (b) very broad implications. Stated policy is restrictive, but de facto policy is permissive. This is not a good situation. grendel|khan 07:08, 12 July 2024 (UTC)[reply]

As far as I'm aware, COM:PUBLISH isn't a policy. D. Benjamin Miller (talk) 15:44, 12 July 2024 (UTC)[reply]

Yo-yo

So I invented a new term, can I just post it here then? Someone will steal it no? Freeseedco (talk) 19:23, 12 July 2024 (UTC)[reply]

Commons hosts media files only, not word definitions. Words alone cannot be copyrighted – they are in the public domain. WhoAteMyButter (talk) 19:57, 12 July 2024 (UTC)[reply]

And the probability is high that someone thought of this word before --PantheraLeo1359531 😺 (talk) 13:08, 14 July 2024 (UTC)[reply]

File:Teletoon 2005.png

File:Teletoon 2005.png seems incorrectly licensed since the logo didn't originate from Logopedia. It should be fine to change this to {{PD-logo}} per COM:TOO Canada, right? Should Logopedia also be being used as the source per COM:BAD given that most of the content it hosts seems to be its own original content? -- Marchjuly (talk) 22:51, 12 July 2024 (UTC)[reply]

& of course the author claim by uploader User:Marcel Ntim is presumably invalid. - Jmabel ! talk 23:53, 12 July 2024 (UTC)[reply]

File is likely below COM:TOO for Canada. {{PD-logo}} & {{Trademark}} can replace the CC license. The file likely came from here https://www.dafont.com/forum/read/372054/teletoon-2001-logo; there's your source. The author can be Corus Entertainment as that would be the parent company for Teletoon. PascalHD (talk) 21:10, 14 July 2024 (UTC)[reply]

Mural art on a French building

Can anyone verify when was the mural here painted, and if the artist's bio can be traced (when did he/she die)? Google Lens image searching did not yield results that would have been useful to know the authorship or date of the work. JWilz12345 (Talk|Contrib's.) 00:14, 13 July 2024 (UTC)[reply]

I highly doubt that the painting is over 95 years old. D. Benjamin Miller (talk) 00:24, 13 July 2024 (UTC)[reply]

Now started: Commons:Deletion requests/Files found with Port-Vendres Peinture. JWilz12345 (Talk|Contrib's.) 00:42, 13 July 2024 (UTC)[reply]

Is this stamp original enough for COM:TOO Spain?

The Spanish government released this stamp (bottom of the page) a few years ago. Generally, Spanish stamps retain their copyright status, but I've been looking at this one again and it's just some text on top of the File:Gay Pride Flag.svg. Any second opinions? GreenLipstickLesbian (talk) 09:05, 13 July 2024 (UTC)[reply]

The work must have the characteristics of ""uniqueness, individuality and distinguishability", which I think is not present in this stamp. Ruslik (talk) 20:09, 13 July 2024 (UTC)[reply]

I've been thinking that too. Thanks for the input! Now off to figure out which license templates to use. GreenLipstickLesbian (talk) 09:09, 15 July 2024 (UTC)[reply]

GreenLipstickLesbian: I agree it is TOO. You are probably best off to use {{PD-flag}} as opposed to {{PD-ineligible}} even though it does contain some text. Ww2censor (talk) 14:03, 15 July 2024 (UTC)[reply]

@Ww2censor Oh wow, I agree that template looks much better! I'll swap it out, thanks for letting me know. GreenLipstickLesbian (talk) 21:21, 15 July 2024 (UTC)[reply]

Commons:Deletion requests/Files uploaded by Trade

Commons:Deletion requests/Files uploaded by Trade i have a question about that DR(9 July 2024), i suspect copyvio, because of (sort of)photographed package images. these images also contain slighty blured parts. guys, did i make mistake about this DR? please give information about this, thank you. modern_primat^ඞඞඞ^----TALK 15:19, 13 July 2024 (UTC)[reply]

Is this image public domain?

In the library of congress (government website) there's an image of the composer Alex North, I'm wondering if I'm allowed to upload it to commons. https://blogs.loc.gov/music/2020/06/composer-in-hollywood-manuscripts-alex-north-papers-now-processed/ Wikieditor662 (talk) 20:34, 13 July 2024 (UTC)[reply]

No, https://findingaids.loc.gov/db/search/xq/searchMfer02.xq?_id=loc.music.eadmus.mu020007&_faSection=usingThisCollection&_faSubsection=userestrict&_dmdid=d146036e12 sounds like it could be copyrighted. Abzeronow (talk) 20:44, 13 July 2024 (UTC)[reply]

it says "Materials from the Alex North Music for Documentary Film, Theater, Dance, and Concert are governed by the Copyright Law of the United States (Title 17, U.S.C.) and other applicable international copyright laws." It talks about the music, I don't think it says anything about the image. Wikieditor662 (talk) 20:48, 13 July 2024 (UTC)[reply]

::: If you check the contents of the collection https://findingaids.loc.gov/db/search/xq/searchMferDsc04.xq?_id=loc.music.eadmus.mu020007&_start=376&_lines=125 it says "Subject files, 1937-1984 Scripts, scrapbooks, programs, clippings, and other materials related to North's projects." and the blog credits the image as "Alex North Papers, Music Division." Abzeronow (talk) 21:01, 13 July 2024 (UTC)[reply]

So it is copyrighted? Wikieditor662 (talk) 21:21, 13 July 2024 (UTC)[reply]

It also says 1910-1984 whilst the photo is from 1986 Academy Awards. --Geohakkeri (talk) 20:57, 13 July 2024 (UTC)[reply]

Image is credited as "Alex North Papers, Music Division." I'd still research if the photograph was published in 1986 or published later. Abzeronow (talk) 21:01, 13 July 2024 (UTC)[reply]

Public-submitted images on NWS websites

Hi all; a few days ago, I learned that the US National Weather Service websites host images not only created by their own employees (obviously {{PD-USGov}}) but also images contributed by members of the public. At least some of those images are in the public domain because since at least 2009, the NWS has had a process through which images become part of the public domain.[3]

I am currently involved in a deletion discussion about one such image (as the nominator) because I don't think we can be sure exactly which images of pre-2009 weather events are covered by this, based on the fact that we don't know when this process was first put in place, and generally don't know when images were submitted under it.

For a very long time, the Commons has assumed (based on the research or rationale behind this template: {{PD-NWS}}) that all public-submitted images to the NWS had gone through that process, at least since the process was put in place. That is, any image hosted on any NWS website and credited to a member of the public was in the Public Domain (see the language of the template).

However, as I was doing some further research to see if we could better pin down the start date of that process, I discovered that the NWS actually has a few different submission processes, not all of which have "release to the PD" as one of their conditions, and that some of these processes are still active in 2024. For example:

this process and this process only require that the owner give the NWS permission to share the photo
this process requires that the owner gives the NWS, NOAA, or "anyone else" permission to share the photo specifically "for lightning safety and related uses"

Neither of which puts the image in the PD, or licences it under anything compatible with CC.

Then we also haveː

this process that says that submissions become part of the PD, but also allows submitters to set a condition that credit is required with each use, so the resulting copyright and license status is unclear.

(My understanding at this point is whether or not publicly-submitted images hosted on NWS websites are in the PD or not hinges both on when the image was submitted, but potentially also which NWS/NOAA office it was submitted to; note that the various processes linked above come from different regional offices).

This obviously has an even broader implication than just images of pre-2009 events. My question isː where to from here? Should Iː

introduce this new information into an already pretty convoluted deletion discussion
withdraw the current nomination and start a different, broader discussion about publicly-submitted images on NWS websites (and if so, where)
something else?

Any advice appreciated. --Rlandmann (talk) 22:55, 13 July 2024 (UTC)[reply]

Which expiration date should the copyright of this image take?

Per Commons:Deletion requests/File:1962《阿诗玛》封面.jpg First, the work was published in 1962. According to the copyright law of the PRC, some people believe that the work belongs to a corporate work and should enter the public domain in the PRC in 2013. Due to URAA, the image entered the public domain in the United States in 2058. On the other hand, some people believe that the creator of the work died in 2023. For personally created works, it should not officially enter the public domain until 2074, but due to URAA, it will enter the public domain in the United States 16 years earlier than in the PRC. As for the time point for the image to enter the public domain, should it be 2058 or 2074? Fumikas Sagisavas (talk) 11:34, 14 July 2024 (UTC)[reply]

Fantasy euro banknotes

It’s doubtful at best that {{Money-EU}} could apply to these. --Geohakkeri (talk) 13:11, 14 July 2024 (UTC)[reply]

I agree. These are designs created by the private companies Euro Special Note and Euro Note Souvenir. These companies are, as far as I understand, using the base design of Euro banknotes under the provision allowing for the use of the design so long as it is not confused for real currency. But these designs weren't created by the ECB, and so whatever permission the ECB has given doesn't apply to the original designs created by those companies. D. Benjamin Miller (talk) 13:35, 14 July 2024 (UTC)[reply]

Also agree, these should be nominated for deletion Mrfoogles (talk) 23:17, 14 July 2024 (UTC)[reply]

Nominated. --Geohakkeri (talk) 08:02, 15 July 2024 (UTC)[reply]

File:Film4 logo 2018.png is PD-textlogo, but the same file on enwiki is PD-ineligible-USOnly|the United Kingdom

file on enwiki: https://en.wikipedia.org/wiki/File:Film4_logo_2018.svg which one is correct? PaperHuman (talk) 21:19, 14 July 2024 (UTC)[reply]

COM:TOO UK is very low, so I would say the En Wiki reasoning is correct. The Commons file should probably be deleted. PascalHD (talk) 23:35, 14 July 2024 (UTC)[reply]

Doubtful that the threshold is still so low in the UK; per THJ v. Sherdian (pages 6–7), the Infopaq standard is now the controlling one in the UK. D. Benjamin Miller (talk) 00:11, 15 July 2024 (UTC)[reply]

Planet Labs images and CC-NC

Hello all. I'm not a regular on Commons, but think I may have stumbled across a rather large issue. While doing an FLC image review, I found File:Malha Wells, Sudan by Planet Labs.jpg from the company Planet.com. They take satellite imagery, and this photo was stated to be under a CC-4.0 license. However, it cannot be found in their gallery. While searching for it, I noticed that every other photo in their gallery is licensed as CC-BY-NC, a license we do not accept on Commons or Wikipedia. We do have quite a large inventory of Planet Labs images here on Commons, at Category:Images by Planet Labs. Some of these are marked on the image as CC-4.0, but many are not. I suspect that the majority of these will need attention and may need to be removed because of the incompatible license, and wanted to make some more experienced Commons users aware of this. Thanks! Fritzmann2002 (talk) 16:03, 15 July 2024 (UTC)[reply]

@Fritzmann2002 It is very possible at the time of upload, the site offered the images under a compatible CC-4.0 license and have since changed it to a more restrictive CC-NC license. If it was licensed under the claimed tag, CC licenses are non revocable so we can keep them - but not add more. Pinging @Ras67 whom uploaded the file(s) in question. PascalHD (talk) 17:12, 15 July 2024 (UTC)[reply]

It looks like it was indeed CC-BY-SA-4.0 on the date of upload, 7 March 2017. The images are broken in the archive.org capture of the link from File:Malha Wells, Sudan by Planet Labs.jpg, but looking at the HTML source from archived page it appears that at the time of the original upload the page displayed the CC BY SA icons and linked to the license at http://creativecommons.org/licenses/by-sa/4.0/. —RP88 (talk) 17:38, 15 July 2024 (UTC)[reply]

Archive.org, old TV shows and PD Mark 1.0

I came across File:Robert Gothie in Lock Up (Framed Ex-Con).jpg while looking at some other stuff. It's a screenshot from an episode of the TV show en:Lock-Up (TV series). The file was uploaded under a {{PD-US-not renewed}} license, but the source provided for the screenshot claims the show is {{PD Mark 1.0}}. Is this OK as licensed? Can the claim by Archive.org be taken at face value? If there's no problems with this, there might be other old TV show content found on Archive.org that's also PD, and some of this might be able to replace "non-free content" uploaded to English Wikipedia. -- Marchjuly (talk) 21:00, 15 July 2024 (UTC)[reply]

If you can find copyright renewals for the TV show on www.copyright.gov, then they are not OK. If you can't find them, it's probably fine. I would not take archive.org's word for it, but it's straightforward to disprove a PD-US-not_renewed claim. Carl Lindberg (talk) 21:45, 15 July 2024 (UTC)[reply]

Thank you Clindberg. I see if I can figure out how to check for that using the website you linked above. -- Marchjuly (talk) 06:36, 16 July 2024 (UTC)[reply]

Marchjuly: I think the image looks rather distorted. If you put the time details of where it is in the film, then someone can try to readjust the proportions to make it look more natural. Ww2censor (talk) 17:39, 16 July 2024 (UTC)[reply]

@Ww2censor: I didn't upload the file; I only came upon it by chance while looking at some other files. I can't figure out the copyright.gov site; so, I haven't been able to verify the file's licensing. It would probably better to figure that out first before trying to upload a cleaner version of the file. -- Marchjuly (talk) 20:22, 16 July 2024 (UTC)[reply]

I checked 1984-1988 and failed to find any renewals for a motion picture or television serial called lock-up. All I managed to find was music under that name (by an Eddie Davis), but that seems to be unrelated. Felix QW (talk) 20:57, 16 July 2024 (UTC)[reply]

The Wikipedia article about the production company mentions that some shows are in the public domain, but without more information nor a reference. A search on cocatalog.loc.gov returns 1645 entries for Ziv Television, but apparently nothing for Lock-Up (alphabetically, the list passes from Laughing to Lodestone). -- Asclepias (talk) 22:43, 16 July 2024 (UTC)[reply]

A map from 1877 to 1898

I would like to upload this image: https://canterburystories.nz/collections/maps-plans/heathcote-road-board-rural-sections/ccl-cs-95654?keys=Opawa%20library&items_per_page=24. I assume since this was created over 120 years ago it is free of copyright? correct me if I'm wrong and should not upload. Alexeyevitch (talk) 06:34, 16 July 2024 (UTC)[reply]

The source states the items are free of copyright under the New Zealand Copyright Act 1994 so you can upload the map with {{PD-US-expired| PD-New Zealand}}. --Geohakkeri (talk) 07:20, 16 July 2024 (UTC)[reply]

Thx. Alexeyevitch (talk) 07:31, 16 July 2024 (UTC)[reply]

Théodore Simon photos

Is File:Theodore Simon ACERVO CDPHA.jpg OK for Commons? It was uploaded in 2013 and was being used as the main infobox image in en:Théodore Simon until quite recently, when it was replaced by a local non-free file uploaded to English Wikipedia as en:File:Simon Théodore.png. The Commons file, however, still is being used by other non-English Wikipedias and Wikidata. If the licensing of the Commons file is OK, then it would be really hard to justify the non-free use of the local English Wikipedia file; on the other hand, if it's not OK and can't be kept, then a non-free could possibly used on English Wikipedia.

It's also not clear whether the non-free uploaded to English Wikipedia really needs to be non-free. There's relevant discussion related to it at en:User talk;Non-free rationale for File:Simon Théodore.png, ut basically the provenance of the file is a bit unclear, The uploader states they got the photo directly from the Binet-Simon Society and agreed to only use a small part of the photo on Wikipedia. The file's description, however, states it was taken around 1905 and the uploader states the photo shows the subject when he was about 20 years younger than the Commons photo. So, there's a good chance the photo is within the public domain and thus would be OK for Commons. It also seems that whatever the agreement the uploader entered into with the source would be a COM:NCR type of arrangements that's not related to the file's copyright status.

Finally, there's another photo of Simon (at least I think it's of Simon) found online here which might also be PD. If it is, then it could used if the other two aren't. -- Marchjuly (talk) 06:35, 16 July 2024 (UTC)[reply]

Alamy states that the image in File:Theodore Simon ACERVO CDPHA.jpg is PD, something they would be unlikely to claim if they had a copyright they could enforce. - Jmabel ! talk 21:59, 16 July 2024 (UTC)[reply]

Thank you Jmabel for finding that. Is that something that should be added to the file's description? -- Marchjuly (talk) 21:06, 18 July 2024 (UTC)[reply]

@Marchjuly: it could go in the "permission" section of the {{Information}} template. - Jmabel ! talk 21:59, 18 July 2024 (UTC)[reply]

More than just this one...

Hi everyone, I just marked this image as likely being copyvio. The name of the photographer / copyright holder is mentioned (Pierre Montavon), but there is no indication of a permission, or that the uploader is identical with the copyright holder.

Only when I was finished doing that, I saw that practically all uploads by this user are images by this photographer. Now what? Do I have to mark every single one of these, or is there some easier way to do it? Can someone help please? Thanks, --2003:C0:8F12:CD00:30CB:A7B2:4CA1:F9ED 18:42, 16 July 2024 (UTC)[reply]

Quick searches don't show this image anywhere else on the internet. I think it's reasonable to believe that the uploader could well be Pierre Montavon, considering that they've only uploaded works by Pierre Montavon which don't appear to be online elsewhere. D. Benjamin Miller (talk) 23:12, 16 July 2024 (UTC)[reply]

But the uploader wrote that the source is this book, published by Éditions D+P SA, so it would need a permission by the publisher or by the photographer, whichever owns the copyright. If someone wants to ask the photographer, his contact is there. -- Asclepias (talk) 23:58, 16 July 2024 (UTC)[reply]

The photographer would normally own the copyright, but there may be other strings attached with the publishing that may not go together with a CC licensing.

The uploader, by the way, clearly is a company account ("company account" ≠ copyright holder) who tried to place their advertising on the German WP and did not disclose paid editing. I would have addressed him about this copyright issue on his German WP talk page, but he has not been active since 2022, so that didn't seem to make much sense. --2003:C0:8F26:1200:C53B:D20D:AE05:D066 12:18, 17 July 2024 (UTC)[reply]

I've tagged the remaining files with {{No permission since}}; permission from the photographer is needed via COM:VRT. Consigned (talk) 13:16, 17 July 2024 (UTC)[reply]

Question about a Weird Al Yankovic picture?

So there's this Weird Al press photo that I found that has some inconsistencies about it, I noticed that there are copies that have the Copyright Notice affixed "© 1985 CBS Inc." but there's also other prints that omit the Copyright year (as you can see by the font, logos and print code 8505 it was printed around the same time and not chopped or removed) and were not registered in the Copyright Office by any of the parties involved, would that Invalidate the Copyright Status and make it PD under the 78-89 US Copyright Law?. ALSO there's an issue that the picture "in color" was published, registered and Copyrighted in Weird Al's parody book "The Authorized Al". I wanted to ask if only the PD status would only apply to the b&w photo if the photo is PD? Hyperba21 (talk) 20:20, 16 July 2024 (UTC)[reply]

@Hyperba21 In a scenario where a few copies were distributed without a copyright notice between 1978-1989, it does not necessarily invalidate the copyright. The law at the time allowed minor omissions as long as most copies included a notice and reasonable efforts were made to correct any errors later on. Section 2203.4 states the following:

2203.4 Omission of Notice on Works First Published Between January 1, 1978 and February 28, 1989
The omission of a notice on a work published between January 1, 1978 and February 28, 1989 with the authority of the copyright owner does not invalidate the copyright, provided that one of the following conditions has been met:

• The notice was omitted from no more than a relatively small number of copies or phonorecords distributed to the public; or

• The work was registered before or within five years after the publication without notice and a reasonable effort was made “to add notice to all copies or phonorecords that are distributed to the public in the United States after the omission has been discovered;” or

• The omission was “in violation of an express requirement in writing that, as a condition of the copyright owner’s authorization of the public distribution of copies or phonorecords, they bear the prescribed notice.”

For example, some earlier copies could have been distributed without a notice, but was corrected relatively shortly after publication. Registration would still not be required as long as it was a 'small number' of copies. However, if a photo was published without a notice, and not corrected until after the 5 year window, it would most likely fall into the Public Domain. In this case though, it appears to have been corrected early on within the same year of 1985. I would say this photo is most likely copyrighted. PascalHD (talk) 21:26, 16 July 2024 (UTC)[reply]

1959 Yearbook portrait of Charles Edward Kerbs (MATT)

Hello, I found a portrait of Charles Edward Kerbs (MATT) from his 1959 Warren Easton High School yearbook that I would like to post. Scans of the yearbook are widely available on various websites such as AlumniClass (<https://www.alumniclass.com/warren-easton-high-school-eagles-new-orleans-la/in-memory-view/?p=110796>). Is the 1959 yearbook considered to be freely available? Would love guidance. OiYoiYoink (talk) 00:23, 17 July 2024 (UTC)[reply]

A US yearbook published before 1964 is in the public domain unless it had a copyright notice and a renewal was filed, which almost never happened for yearbooks. D. Benjamin Miller (talk) 00:31, 17 July 2024 (UTC)[reply]

File:Rogers Mall Plan.jpg

Arial Bold (talk · contribs) is claiming ownership of File:Rogers Mall Plan.jpg. I know this is not their work, as it's a map I made way back in 2002 and posted on Angelfire. I have no idea how Arial Bold got a hold of it, as I took down the Angelfire page ages ago and I don't think I've ever shared the map publicly. For that reason, I think their other uploads should be scrutinized as ewll. TenPoundHammer (talk) 04:05, 17 July 2024 (UTC)[reply]

It looks like the user does not understand what "own work" means, since File:Rogers Homested.jpg, for example, is (probably accurately) dated 2 January 1900, but claimed as own work, with a license offered using {{Self}}; there is approximately no chance that the user could possibly own a copyright for this image and be in a position to offer a license. But I don't think COM:VP/C is particularly the place to discuss this at any length. It looks like no one has engaged them on their user talk page or DR'd any of these images (some of which are probably OK if the right PD tag is used). @TenPoundHammer, do you want to start that discussion at User talk:Arial Bold, or would you rather someone else did? - Jmabel ! talk 04:14, 17 July 2024 (UTC)[reply]

@Jmabel: would you be willing to send the map to deletion too? I'm topic-banned from XFD and I assume that applies to commons as well. TenPoundHammer (talk) 19:59, 17 July 2024 (UTC)[reply]

Commons:Deletion requests/File:Rogers Mall Plan.jpg. - Jmabel ! talk 20:34, 17 July 2024 (UTC)[reply]

@Jmabel: I strongly think 74.204.120.66 and Arial Bold should be blocked. The former just seems to be Arial Bold logged out, and their talk page is full of negative comments toward me. Between that and the constant copyright problems, they're contributing nothing here. TenPoundHammer (talk) 20:59, 17 July 2024 (UTC)[reply]

@TenPoundHammer: that is not an appropriate topic for this page. If you want to bring that up, it would be a matter for COM:AN/U, and don't forget to notify the user if you are bringing a complaint there. - Jmabel ! talk 21:03, 17 July 2024 (UTC)[reply]

Copyright status of photos by French photo studio Harcourt

For a while now, photos by French photo studio Studio Harcourt have been frequently nominated for deletion (by User:Günther Frager, among others). I've noticed in recent discussions that there seems to be quite some confusion about their copyright status and wanted to discuss that here.

One fact that does not seem to be controversial is that several years ago, a French court decided that photos by Studio Harcourt are produced under such tight regulations that they are to be considered collective works as far as French copyright is concerned. Which means that they enter the public domain in France 70 years after first publication. In the US, the URAA restored the copyright for those photos which were still in copyright in France on January 1, 1996. Since France still had a shorter copyright term on that date (50 years + 8 years and 120 days of wartime extensions), Harcourt photos up to 1936 should be in the public domain in the US (as of 2024), while later Harcourt photos are still protected in the US.
In 1991, the French state (minister Jack Lang) bought 5 million Harcourt photos/negatives from 1934 to 1991, see here (article from Le Figaro). One claim that I have seen repeatedly, usually made by User:Richard Arthur Norton (1958- ), is that the French state released all of those photos under a Creative Commons Attribution 3.0 Unported license. RAN added that claim to the Category:Photographs by Studio Harcourt hereand again here and has repeated it in various deletion request discussions. The article from Le Figaro (which RAN also linked to) does not support that claim of a release under a CC BY 3.0 license (which could have happened no earlier than 2007 since the CC 3.0 licenses were introduced in that year). When I asked RAN (at Commons:Volunteer Response Team/Noticeboard/archive/2023#User:Studio Harcourt) about evidence for his claims, he replied The statement is based on the license they were uploaded with. Which, from the context, apparently refers to several files uploaded by User:Studio Harcourt in 2010 (see Special:ListFiles/Studio Harcourt).

But User:Studio Harcourt is not the French state (but the studio itself), and the photos that were uploaded in 2010 were from the years 1998 to 2008, so not part of the 5 million photos bought by the French state in 1991. I fail to see how several photos uploaded by this user in 2010 with said license can lead to the conclusion that the French state released all of the 5 million photos it bought in 1991 under a CC BY 3.0 license. As I see it, there is still ZERO evidence for this claim, and it is just an unsubstantiated claim.

Another claim which popped up recently is that the Harcourt photos from 1934 to 1991 bought by the French state are not under copyright. This was claimed by User:Tisourcier and User:Ruthven, and User:Asclepias also seems to have adopted it. Apparently it goes back to a VRT ticket by User:Studio Harcourt. As [4] shows, there are two of those. The older Harcourt ticket (2010061710041251), according to User:Ciell, only covers files uploaded by User:Studio Harcourt (“I think it's safe to say that the images uploaded under the specific account are okay, and the release does not cover any future uploads beyond the ones made by User:Studio Harcourt.”), while the newer ticket (2020112910005534), according to User:Ganímedes, "only covers a specific file".

In that ticket ( which is apparently from 2020), a woman named Agnes BROUARD, working for Studio Harcourt Paris and Chargée de la valorisation des collections, writes (confirmed by User:Ruthven on their own user talk page here): « Il me faut vous indiquer que nos archives de 1934 à 1991 sont désormais propriété du Ministère de la Culture, conservées par une entité appelée Médiathèque de l'architecture et du patrimoine et diffusées par l'agence photographique RMN-Grand Palais. Ce fonds photographique n'est pas soumis à un droit patrimonial donc quiconque possède un portrait de l'époque 1934-1991 peut l'utiliser librement et vous pouvez réutiliser un portrait trouvé sur internet. » Which says that the Harcourt archives from 1934 to 1991 are now property of the French Ministry of Culture (as discussed above), and more importantly, that for that archive there is no "patrimonial right" (that is, the economic/proprietary part of copyright as opposed to the moral right to be named as author) and "that anyone who has a portrait from the period 1934-1991 can use it freely and you can reuse a portrait found on the internet" (translation by User:Tisourcier on my user talk page). So basically she is declaring that there are no restrictions at all on Harcourt photos from 1934 to 1991 (except that you have to adhere to the moral rights part of copyright, which means among other things you have to name the author when reproducing the photo).

That sounds great. But is it actually a declaration we can use and rely upon? It is not in any way a formal declaration of the way we usually require for VRT permissions. It is more like just another claim, made by a Harcourt employee in 2020, almost 30 years after the 1934 to 1991 archive had been sold to the French state. Why should what a Harcourt employee claims be considered binding for photos that are actually the property of someone else, namely, the French state? The French state which does claim a copyright over Harcourt photos, compare [5] (there are many more examples)? That copyright claim may not be correct for any Harcourt photos before 1954 because of the collective work status, but taken at face value it is in direct contradiction of the claim made by Madame Brouard. So the "not under copyright" conclusion, based on what Madame Brouard wrote, is speculative and shaky at best. I don't think we can rely upon that for literally millions of images.

So my conclusion from all this is:

There is ZERO evidence for the "CC BY 3.0" claim.
The "not under copyright" claim is speculative and shaky at best.
We should not rely on either of them and instead only rely on the French collective works status plus PD-1996 (for the US) part, which would mean that as of right now, only pre-1937 Harcourt photos are ok for Wikimedia Commons (and, starting in 2033, photos from 1937, in 2034 from 1938 and so on).

We really ought to sort this out. Yann und Ruthven have started closing deleted requests as keep based on these dubious claims (I've explained why I think they're dubious). If we're keeping files, potentially very many of them (5 million photos ...), we ought to be sure about the reasons. At present, we are not. Thoughts? --Rosenzweig τ 09:36, 17 July 2024 (UTC)[reply]

Comment Just to put in context: The quote comment is the answer to this question, nothing else. I didn't evaluate the CR status because I'm not French speaker and it was not requested anyway. --Ganímedes (talk) 10:54, 17 July 2024 (UTC)[reply]

I had the perplexity when the DRs I opened were closed. Some were closed with the argument the French government released with CC-BY and others with they are in the public domain, even by the same closing admin. It is still not clear to me who is the copyright holder: Harcourt or the French government (i.e. was the rights transferred when buying the collection). If the latter is the copyright holder the ticket from Harcourt claiming they are in the public domain is void, and the claim that they have CC-BY is dubious as we don't have a VRT ticket from the French government. If Harcourt is still the copyright holder, it would be important to get the context of the email. Once thing is saying you can use the photo freely in your blog without problems (more on the fair use side), and another is you can compile a bunch of photos, create a book a sell it without paying them a dime. I'm not expert in French law, but is it possible to put a work on the public domain? (that is not the same as licensing under CC0). Günther Frager (talk) 14:41, 17 July 2024 (UTC)[reply]
To answer the French law-related question... if I recall correctly:
- It shouldn't directly affect the legality of hosting the file, since Commons is based in the US, where public domain dedications are clearly possible.
- As I recall, under French law, rights are separated into economic and moral rights, as is the case in many continental European countries. The moral rights are often inalienable (can't be given up), but the economic rights can be given up. (You'll note that CC0 contains a waiver of moral rights insofar as much as that's possible; that would depend on the country.)
- It's often said that, because moral rights cannot be given up, that public domain dedications are impossible in France (or other European countries). But this is highly misleading. "Copyright" is, of course, a term of art in America, as is "public domain," and these concepts exist in slightly different forms in other systems.
- Under French law, moral rights are not only inalienable, they're also perpetual. Anyone who says that the inalienable nature of moral rights under French law means that PD dedications are impossible would have to say that no work is in the public domain in France. But this isn't true; when we talk about the French public domain, we're talking about the expiry of economic rights.
An email which says that a work is in the public domain really must be interpreted either as a permanent waiver of the economic rights or, if not that, then an explicit and perpetual license to all the economic rights to the work — since this is what it means for a work to be in the public domain in France. While the CC0 terms are more detailed and clear, this doesn't mean that such a dedication or license isn't valid in France — except for the general limitation on waiving moral rights.

Also, French law provides for oral and even implied contracts to be considered binding. There's no reason to think that an explicit and clear "public domain dedication" would not be considered as binding. I honestly think that the whole notion that public domain dedications are impossible in many countries is based on confusion between economic and moral rights. Otherwise, you would have to accept that these countries only allow for copyright licenses to be made in a very specific form, above and beyond the formal requirements for other binding contracts or licenses, and that, failing that, the interpretation would be that there is no license at all — and I don't see any reason to believe that — or you'd have to believe that CC0 and other tools have no validity, even with fallback provisions.

Now, CC0 is a bit better, both because it is more explicit and because it contains fallback affirmations relating to non-exercise of waived rights (though these may mean nothing with respect to unwaivable moral rights). But that doesn't mean "this work is dedicated to the public domain; I give up my copyright" can't be interpreted as a valid license or dedication.

Of course, that is entirely separate from whether or not there was an actual message sent by the actual copyright holder to that effect. D. Benjamin Miller (talk) 15:47, 17 July 2024 (UTC)[reply]

Hi @Rosenzweig,

Thanks for the ping. I hadn't seen the second ticket from 2020, and that actually looks like a very interesting one. It is a forwarded email (and I prefer direct emails when working with permissions) but my reading from the exchange there (again, with my limited french knowledge) is that it support the statement as shared on @Ruthven's talkpage that you mention. The ticket #2020112910005534 was send to support the release of a single image as @Ganímedes mentions, yes, but with this more general statement in the mail it could in theory support the release for all images 1934-1991. Ciell (talk) 15:08, 17 July 2024 (UTC)[reply]

Also: the issue of the French claim by photo.rmn.fr was mentioned, and links to a court case ruling from 2014. (and this absolutely goes beyond what I can read in French, sorry!) Ciell (talk) 15:19, 17 July 2024 (UTC)[reply]

Here is what the Court of Appeals decided, with respect to the ownership of the works:

"[...] Most importantly, the Court held that the photographs bearing the Harcourt logo which had been made by the photographer must be considered collective works, for which the copyrights [droits de l'auteur], including moral rights, are owned by the studio.

"Concretely, the photographer is deprived of all rights to the works, and he is not entitled to anything except for the simple proportional remuneration which the studio agreed to give him upon the sale of his works. More importantly, the decision denied the photographer the moral right to attribution of which no author may in principle be deprived."

So the conclusion here was that photographs taken by an individual photographer working for a studio and, at least in this case, marketed as the studio's work, are collective works, to which all the rights only ever belonged to the studio, not the individual photographer. D. Benjamin Miller (talk) 15:59, 17 July 2024 (UTC)[reply]

That was the court case which I mention in my very first bullet point above (“One fact that does not seem to be controversial is that several years ago, a French court decided that photos by Studio Harcourt are produced under such tight regulations that they are to be considered collective works as far as French copyright is concerned.”) Note that the case made that decision only for Studio Harcourt photos and not for any studio photo, which is sometimes also claimed (by User:Tisourcier for example in Commons:Deletion requests/Files uploaded by Tisourcier). --Rosenzweig τ 16:09, 17 July 2024 (UTC)[reply]

Thanks @D. Benjamin Miller. So that only serves us limited purpose.

@Rosenzweig I am not sure you are linking to the official French government inventory with the link above: here is the same image but in their "Médiathèque du patrimoine et de la photographie"/Open heritage Platform (nonetheless, also with a "C" in front of the mention of the Ministère de la Culture). Any reason why you link, to what looks to me, a third party/private vendor? Ciell (talk) 16:26, 17 July 2024 (UTC)[reply]

@Ciell: rmn.fr is the en:Réunion des Musées Nationaux, the (public) agency mentioned by Agnes Brouard as the distributor of the photos (« diffusées par l'agence photographique RMN-Grand Palais »), also at the gouv.fr website you linked to (diffusion GrandPalaisRmn Photo). I'm not sure why the photos are presented on two web sites. --Rosenzweig τ 16:45, 17 July 2024 (UTC)[reply]

Their open heritage platforms openend in 2019 (or that's what wikipedia told me), so maybe that's why. Ciell (talk) 16:57, 17 July 2024 (UTC)[reply]

But maybe you should try and reach out to the French government with your questions, if you doubt the analysis of the previous copyright owner, @Rosenzweig? I have to say it seems almost unfair to expect others to do so, when you think a statement from the original photograph studio is insufficient?

I am not one who wants us to host illegal content, but on the other side we should not want to take things down without having had a conversation with the current rights holder... (or the custodian, whatever you want to call them). Ciell (talk) 17:05, 17 July 2024 (UTC)[reply]

I'll pass on that, if anyone wants to do this, it should be a native speaker, possibly also resident of the country. Though RAN had announced he'd get in touch if I remember this correctly. Maybe he did get a meaningful answer? --Rosenzweig τ 18:20, 17 July 2024 (UTC)[reply]

@Rosenzweig: @Ciell: I confirm what D. Benjamin Miller said about the French court case of PIERRE-ANTHONY X VS. HARCOURT linked above. The judges (the judgement has been confirmed by the court of appeals) mention interesting facts, namely:

At Harcourt, the photographers yield their copyright to the studio in exchange of 10% on the sales, in which the photo is sold as a collective work.
The photos published by Harcourt must be considered as collective works.
The moral rights of the original author do not hold anymore, as the moral rights are now owned by a group of authors.

This last statement may be a surprise, given all the discussions about CC0 in France, but it is justified by the French law 113-2 alinéa 3 of the Code de la Propriété Intellectuelle. A collective work can be initiated by a company (here it's Harcout), and the consequent publication under a collective name makes the work of the single photographer indistinguishable from the work of the group. --Ruthven (msg) 15:23, 19 July 2024 (UTC)[reply]

Hello, why not let several French contributors involved by PD-France and Studio Harcourt case, precising the legal aspects and confirm the data about it ? The "collective work" judgement is one the main points, but the PD official statement by the author Studio Harcourt at the root as the author of these photographs (VTR), is clearly relevant to determine that those published between 1954 and 1992 are also PD-France too. Edit : copyright mentions of RMN website are not 100% reliable (copyvios). Tisourcier (talk) 11:39, 18 July 2024 (UTC)Tisourcier (talk) 11:32, 18 July 2024 (UTC)[reply]

Yes, more than unreliable, RMN copyright claims are copyfraud or completely absurd. RMN has never been the copyright holder of the documents they host, they are only the caretaker. Sometimes, they claim a copyright because they digitize the work, but it is not even always the case. They even claim a copyright on works digitized by other people or institutions. I once wrote to them about that, but never got an answer. Copyfraud is not punished by French law, so plenty people and organizations claim a copyright which has no value (i.e. copyright claims on old books recently reprinted, etc.). Yann (talk) 12:55, 18 July 2024 (UTC)[reply]

It's not just RMN, it's also the Médiathèque du patrimoine et de la photographie of the French Ministère de la Culture, see the the link provided by Ciell above. And yes, we have seen some French institutions making dubious copyright claims, namely the Bibliothèque nationale. That does not mean that everything they claim is automatically false and can be disregarded. Both the RMN and the French ministry making these copyright claims is just another small sign, another piece of evidence regarding the question we have, contributing to the doubt about the “not under copyright” claim. --Rosenzweig τ 17:16, 18 July 2024 (UTC)[reply]

The statement by Harcourt is just that: a statement. A claim. An opinion. While Studio Harcourt can be considered the author of these collective works, they sold the bulk of their earlier production (5 million images from 1934 to 1991) to the French state. Presumably they sold them including the rights (copyrights, usage rights) to them, or else it wouldn't make much sense that the French state is distributing these images by the RMN agency. So the statement comes from an institution which authored these collective works, but (as we must assume) no longer holds the rights to them. The statement we're talking about claims that millions of images from the years up to and including 1991 are not under copyright, or « pas soumis à un droit patrimonial ». The only way 1991 portrait photographs can be in the public domain (or equivalent) in France is if the rights holder explicitly released them into the PD, put them under a CC0 license or similar. For such a thing, we require either a clear public statement from someone who is clearly the rights holder, or an explicit permission/consent text of the kind available at the COM:VRT page, something along the lines of I hereby affirm that I am/represent ..., the creator/sole owner of the exclusive copyright of the work(s) as shown here, and have legal authority in my capacity to release the copyright of that work. I agree to publish the above-mentioned content under the following free license: ... etc. etc.

Since this is about potentially very many images (5 million photos), we absolutely should have such a clear declaration. Especially for the protection of our re-users. But we have NONE of that here. There is no clear declaration of who the owner of copyright is, nor who released them under what license. There is just a vague statement that there is no copyright and anyone can use the photos freely, by a person of unclear legal status as far as the copyrights to the photos are concerned. That cannot be acceptable. --Rosenzweig τ 12:16, 18 July 2024 (UTC)[reply]

Sorry, but it would be much better if you stop making false statements. We have a declaration by a person in charge that these images are in the public domain. Why do you always say the opposite? Yann (talk) 12:58, 18 July 2024 (UTC)[reply]

@Yann: Please refrain from such accusations. Accusing me of "making false statements" is basically calling me a liar, and I don't appreciate being insulted in that way. What we do have (in ticket 2020112910005534, the French text is above) is a claim, a statement by someone apparently working for Studio Harcourt in 2020, with the title or post of Chargée de la valorisation des collections. Valorisation translating to something like exploitation (in an economic sense) or promotion. So if she is “in charge” of anything, it's not copyright questions or legal questions in general, it's the promotion or economic exploitation of the Studio Harcourt collections. Which since the sale in 1991 do not anymore include the older 1934 to 1991 photos we're talking about here. It's in no way clear if she is in any way authorized to make copyright-related statements for Studio Harcourt, and it's not in any way clear if Studio Harcourt even still has any rights to those older photos. Though it must be assumed the French state acquired those rights along with the photos themselves, because why would you buy such a massive amount of photos without the proper rights to utilize them? Her text is also not a “declaration”, at least not one of the kind we require for VRT permissions (as outlined in my previous post in this thread). So whatever her statement is, it's not a sufficient basis to declare these 5 million photos to be in the public domain or “not under copyright” or « pas soumis à un droit patrimonial ». --Rosenzweig τ 17:16, 18 July 2024 (UTC)[reply]

"why would you buy such a massive amount of photos without the proper rights to utilize them?" Presumably you'd acquire some sort of rights to reproduce, but not necessarily rights that were tantamount to owning the copyright. Plus, of course, eventually they will come out of copyright.

FWIW, it is pretty common for archives and libraries to acquire large collections without acquiring copyrights. I wouldn't presume anything either way about this case without some sort of evidence. - Jmabel ! talk 20:59, 18 July 2024 (UTC)[reply]

While I agree with Rosenzweig that the situation is unclear, I would urge us not to rush to deleting, especially because it is such a large set - rushing into this will actually do more bad than good. As @Tisourcier mentions: please get French contributors involved to figure this out. Commons is not an island in the big wiki-ocean, and we as admins should not be tasking decisions (like deleting images at this scale) that effect the other projects lightly, but with due consideration. Ciell (talk) 16:55, 18 July 2024 (UTC)[reply]

"Presumably they sold them including the rights (copyrights, usage rights) to them, or else it wouldn't make much sense that the French state is distributing these images by the RMN agency."

I don't see why we should presume that they specifically assigned the copyright, rather than giving a license. D. Benjamin Miller (talk) 19:32, 18 July 2024 (UTC)[reply]

OK, if that is what is happened, we would need a confirmation as well. Also a clarification who would actually be the copyright owner and who would be authorized to put the photos in the public domain (or equivalent, or under a free license) and if that happened. All clearly and unmistakably spelled out. We cannot keep so many (and potentially many more) images with just a "maybe, maybe not" assumption. Per the precautionary principle, such an unclear situation would mean the files would need to be deleted and no new uploads accpted. --Rosenzweig τ 06:22, 19 July 2024 (UTC)[reply]

Info The French Ministry of Culture bought in 1989 the negatives and client records from 1934 until 1979. Later in 1991 during the bankruptcy of Studio Harcourt the Association française pour la diffusion du patrimoine photographique (AFDPP) acquired the negatives from 1980 until 1991 [6]. The source gives very precise dates on the acquisitions, so it might even be possible to find public records about them. Günther Frager (talk) 18:36, 18 July 2024 (UTC)[reply]

Hi @Günther Frager, beyond the acquisition: the question on the table now, is about the correct copyright status for all of these these images. Are the images Public Domain, available under CC BY-SA, or does the French state claim full copyright? Ciell (talk) 18:59, 18 July 2024 (UTC)[reply]

@Ciell: yes, the main issue is determine who owns the copyright, but this information is still relevant. If the source is right, on November 14, 1989 Jack Lang and Studio Harcourt signed a document and we might get a copy of it and see whether the patrimonial rights were transferred or not. The other point is that the negatives form 1980-1991 were acquired during a bankruptcy and might have different conditions. I don't know about French intellectual property law, but in some countries intellectual property is treated as a normal asset when a company is liquidated. Günther Frager (talk) 19:22, 18 July 2024 (UTC)[reply]

One interesting fact in that text (thanks for the link) is that the current Studio Harcourt Paris company may be not identical with the "old" Studio Harcourt, but some succesor company (it's not entirely clear though, they call it le nouveau studio Harcourt-Paris). Which makes me wonder if the current company still holds any (intellectual property) rights to the assets of the "old" company, or not. --Rosenzweig τ 06:25, 19 July 2024 (UTC)[reply]

File:Jack-Thomas-Nicholas-Profile.jpg

While developing the enwiki article for said individual, I see that a photo of them has recently been uploaded by a user account named in such a way as to suggest they may be related to the late subject. However, they have declared the photo as "own work", without indicating how this is the case. I have queried this with them but had no response. I wonder if they believe that simply having possession of the photograph, or being the nearest decedent entitles them to the copyright. The subject died nearly 50 years ago and looks much younger in the photo than the age of their death, so while it's plausible it could be PD, I am unsure how best to proceed or verify the claimed status. Bungle ^{(talk • contribs)} 17:56, 17 July 2024 (UTC)[reply]

Well, it could be the user's own work, if the user is old enough to have taken the picture.

Being in possession of the photograph has nothing to do with owning the copyright, but being the nearest descendant of the creator of the photo often does. Of course, even if the uploader is related to the subject, that doesn't indicate any relation to the photographer. On the other hand, the photo could be in the public domain. D. Benjamin Miller (talk) 18:20, 17 July 2024 (UTC)[reply]

The image does not appear online, so that is a strong suggestion that it derives from either their own collection, or a family member took the image. We do have {{Cc-by-sa-4.0-heirs}} as the preferred license when a family member has taken an image. and the uploader is claiming to be the heir to the copyrights. We are are not forensic detectives, so we rely on good faith and due diligence via Tineye and Google Image that no one else is making an active copyright claim. --RAN (talk) 18:54, 17 July 2024 (UTC)[reply]

Pinging @Johndnicholas as uploader. - Jmabel ! talk 19:08, 17 July 2024 (UTC)[reply]

The image shows the subject looking very similar, and indeed with the same attire, as he did when winning the 1946 FA cup (of which an image can be found on google). It also, in my opinion, appears to be a professional looking photo, rather than one from a family album. The uploader also uploaded a cigarette card, File:Jack-nicholas-cigarette-card-1.jpg, and also claimed this as own work and as the license holder - are you also prepared to believe this to be true as well, D. Benjamin Miller and RAN? I think my query is fair, and also that the uploader has no other track record we can refer to. Bungle ^{(talk • contribs)} 19:34, 17 July 2024 (UTC)[reply]

Excellent research, add the link to the new image taken at the same event. Now it would fall under PD-UK, I believe we have made a reasonable enquiry to see if anyone was named as a copyright holder. --RAN (talk) 19:58, 17 July 2024 (UTC)[reply]
Except, {{PD-UK}} is not a valid license, so we'd either be looking at {{PD-old-70}} (if the author is/was known and deceased prior to 1954) or {{PD-UK-unknown}} (more likely) if the original author cannot be determined. I am making a reasonable assumption the photo in question was taken c.1946 but only based on similar appearance from an alternate dated photo. I asked here to seek some further insight on the best way to proceed, in the absence of acknowledgement from the uploader. Bungle ^{(talk • contribs)} 20:45, 17 July 2024 (UTC)[reply]

When downloading an image, what do I need to include?

Hello, I am writing a "guide to growing roses". I am downloading images to compliment the text. I have other sources for images, but some are difficult to find. My understanding (from what I've read) is that the images are free to use as long as I credit the original contributor. I'm try to figure out what I need to include. I've copied this by clicking on the download link:

Attribution: Jerzy Opioła, CC BY-SA 4.0 <https://creativecommons.org/licenses/by-sa/4.0>, via Wikimedia Commons
File URL: https://upload.wikimedia.org/wikipedia/commons/f/f2/Gymnosporangium_sabinae_a1_%282%29.jpg
Page URL: https://commons.wikimedia.org/wiki/File:Gymnosporangium_sabinae_a1_(2).jpg

The only alterations I might make is size. The image will NOT be altered other than that. Can I just add the Attribution to the credits or do I need to include the 2 links as well? Also, do I copy & paste the image into my ebook? The download link just gave me the above information.

Thx for your help. Brigitte Merlin&Mommy (talk) 20:23, 17 July 2024 (UTC)[reply]

@Merlin&Mommy: The credit as cited above is fine. I took the liberty of adding line breaks. You should probably link the page; it's not necessary to separately link the file, since that can easily be reached from the page.

You download the image itself exactly like any other image in a browser. Typically that is a right-click and "Save as...". - Jmabel ! talk 20:39, 17 July 2024 (UTC)[reply]

Thanks so much for the information and the quick response. Merlin&Mommy (talk) 22:27, 17 July 2024 (UTC)[reply]

Is direct usage of PD-old ever correct?

I'm having an interesting conversation on my talk page with User:Aristeas & User:W.carter on my talk page about public domain and that reminded me about a question I had before: Is direct usage of {{PD-old}} (and all variants) ever correct? Shouldn't these all be wrapped in either {{PD-art}} or {{PD-scan}} (or related templates)? A search gives plenty of examples. Multichill (talk) 19:04, 18 July 2024 (UTC)[reply]

Ever? Well, in that case, which wrapper would apply to, say, File:Steamboat_Willie_(1928)_by_Walt_Disney.webm? --Geohakkeri (talk) 19:31, 18 July 2024 (UTC)[reply]

{{PD-scan}}, someone had to scan all the frames to make a digital copy out of it. Multichill (talk) 19:59, 18 July 2024 (UTC)[reply]

Your question is basically, "Is a PD-old-X tag sufficient, or must there be another tag relating to the digitization of the item?"

Anyway, the answer is that a PD-old-X tag is sufficient. The other wrappers are used for clarity in some situations, but they have never been mandatory. There is a reason why, for instance, they are not included as part of the upload wizard.

PD-scan explicitly says it is only for limited use: "This tag is designed for use where there may be a need to assert that any enhancements (eg brightness, contrast, colour-matching, sharpening) are in themselves insufficiently creative to generate a new copyright. It can be used where it is unknown whether any enhancements have been made, as well as when the enhancements are clear but insufficient."

PD-Art, in my personal opinion, should only really be used when there is a claim of copyright in the digitization from the source which we are explicitly rebutting. D. Benjamin Miller (talk) 19:47, 18 July 2024 (UTC)[reply]

Why do you think PD-old-X is sufficient? It applies to the original work (painting, photograph, etc.), but we have a digital copy of it. That's a very similar, but different work.

The fact that we always did something in way doesn't mean that it's the best way. We can improve things. We also allowed {{PD}} and later realized that was not a good idea and split it out in clearer templates. Multichill (talk) 19:59, 18 July 2024 (UTC)[reply]

"That's a very similar, but different work." No, it's not a distinct work, at least not usually, and that's my point.

In the vast majority of countries, there is a standard of originality which precludes mere digitization from giving rise to a new copyright. Even the classic example of what Commons users would often cite as a "sweat of the brow" country, the UK (and it was hardly clear even at the time of the NPG controversy), has clearly rejected the notion of copyright in non-original reproductions in recent case law. The EU copyright directive in 2019 prohibited the recognition of copyright or related/ancillary rights in faithful reproductions, too.

PD-Art is mostly used for paintings. As someone who happens to do some reproduction photography for work, I know that it can sometimes be technically difficult to photograph and reproduce certain objects (such as paintings), even if there is no creativity involved at all. But for book scans, the situation is even clearer. Frankly, if we are talking about "sweat of the brow," scanning on a flatbed (or similar) is extremely easy and simple; it is an activity which doesn't even generate a drop of the proverbial "sweat." After all, the basic questions of positioning, camera settings and so on hardly enter the picture at all. When I use a flatbed scanner, I can choose very little more than what bit depth and format my output will be.

PD-scan is about where adjustments have been made to the digitized file, but where these adjustments are unlikely to contain enough new matter to be considered a copyrightable work — much like how I can adjust various camera settings when photographing a 2-D object. That, I think, is a fair thing to clarify.

But to even acknowledge a claim of copyright on mere conversion to a digital format itself (as in, a normal scan) seems wrong to me. I don't think any country really does recognize a copyright on such scans (and certainly I'd say none should). And giving even the slightest validation to such frivolous claims strikes me as improper. It implies to the user the potential of an latent "infectious" copyright arising from any break in the chain of custody from the first digitizer to the final user — really, it calls into doubt the existence of any digital public domain in the first place.

I don't think any country has such a law (i.e., one which would imply independent copyright exists in all digitizations qua digitizations), but any country that did, and which took it seriously at all, would be one whose policy is so diametrically opposed to the purpose of this site or any other public domain media repository that I don't think it would be worth giving the honor of a mention on our pages. Just my two cents.

Also, to give an analogy, if you think that a new copyrighted work can arise from putting a piece of paper on a flatbed scanner and pressing a button, then I don't see any reason why having imagemagick convert a TIFF to a JPEG wouldn't result in a new copyright, either.

D. Benjamin Miller (talk) 20:19, 18 July 2024 (UTC)[reply]

For 2D artworks it should be tl:PD-art|PD-old-100-expired or PD-art|PD-old-auto-//expired//|deathyear=

see tl:PD-art-tag, Commons:Reuse of PD-Art photographs

You often use tl:Licensed-PD-art... This is not necessary especially since new European legislation of 2021, en:Directive on Copyright in the Digital Single Market#Article 14

I corrected the template as I did before in similar cases.

I am with Aristeas, the institution claims copyright sa-by, which they have not, clear copyfraud, as many institutions do e.g. Alte Pinakothek. The few correct licenses are used now by Gemäldegalerie und Städel, by the way many user-photographers also claim copyrights of faithful 2D reproductions, which they have not and I'm tired by correcting. Oursana (talk) 21:05, 18 July 2024 (UTC)[reply]

No, despite the fact that the principle that reproductions shouldn't generally be copyrightable, if there is a free putative license, don't remove it. As Licensed-PD-Art says, in many countries, there is no copyright, but in a country where there might exist such a copyright, the free license is a fallback: "In many jurisdictions, faithful reproductions of two-dimensional public domain works of art are not copyrightable. The Wikimedia Foundation's position is that these works are not copyrightable in the United States (see Commons:Reuse of PD-Art photographs). In these jurisdictions, this work is actually in the public domain and the requirements of the digital reproduction's license are not compulsory." Even though reproductions are clearly not copyrightable in Germany now (since such ancillary copyrights in reproductions are invalid under the new legislation), the additional license is still of (theoretical) use to a user in another country. There is no reason to remove this, even though, as Licensed-PD-Art says, this is now even more superfluous than before. D. Benjamin Miller (talk) 21:13, 18 July 2024 (UTC)[reply]

I think I largely agree with D. Benjamin Miller. "Work" implies copyrightable material; it's a term of the Berne Convention. Things which are not "works" are not copyrightable (or at least are not governed by that treaty). Our PD-Art policy is basically that a photographic reproduction of a painting is not a separate work but a copy, regardless of laws elsewhere which may be different. I typically will use that tag if it's not my photo, i.e. someone else made that photo. Given that law elsewhere might be different, it's good to emphasize that for re-users, or authors of the photo wondering why it was uploaded. Licensed-PD-Art is also useful, if applicable, in case there are jurisdictions which are different -- the US (by court decision) and EU (by directive) now explicitly say no, but that's far from being worldwide. I don't think lack of PD-Art is a problem; it can always be added if it's more precise. The only copyright our policy really cares about is that of the painting (or other underlying work), and PD-old covers that. If it's a photographic reproduction taken from a distance, it's always fine to add the PD-Art tag.

PD-scan I typically only use when it seems like an entity is claiming copyright on a scan, possibly with non-copyrightable enhancements/fixes, and we want to point out why we would disagree with such a claim. It's also making a copy with no new expression, though unlike photos it should be valid basically anywhere in the world. It usually does not need to be emphasized if nobody is trying to claim a copyright on it. Making a print from a negative is not a copyrightable act, neither is scanning it, neither is converting file formats, neither is scaling down. We don't need to constantly point out that basic manipulations don't generate new copyrights. Carl Lindberg (talk) 21:43, 18 July 2024 (UTC)[reply]

As both the PD-scan template itself and Commons:Reuse of PD-Art photographs make clear, simple photomechanical reproductions (e.g., flatbed scans) wouldn't have qualified for copyright even where faithful reproduction photos did.

Also, besides the US, EU and UK, many other countries' thresholds of originality make it clear that faithful reproductions wouldn't qualify for copyright. Also, I would surmise that the majority of PD-Art template invocations are probably on images digitized in the US, EU or UK (given how many items are held by institutions there). The whole idea behind PD-Art to begin with arose when the NPG (UK) accused Commons of copyright infringement. As more recent case law has shown, claims to copyright in reproductions are unjustified under UK law, too, but the whole idea behind the template was to be a special warning/disclaimer/clarification at least mainly related to images digitized by entities that might make an actual claim.

I'm not saying we need to mass-remove PD-Art templates. But we should also probably acknowledge that they are a lot less practically necessary as a clarification for images digitized by institutions in countries where there is no possibility of copyright in faithful reproductions — including the US, EU and UK. Even if it might theoretically be possible to sue for infringement in some (hypothetical) country where reproductions are per se copyrightable, I would be shocked if any institution in a country where such reproductions are not copyrightable at all actually did that. This is different from talking about term length variation; works that are expired in their country of origin are often still valuable in other countries and the copyright holder will often still pursue cases. But where there is no work potentially subject to copyright at all in the source country, that's a different story from a practical perspective. D. Benjamin Miller (talk) 03:14, 19 July 2024 (UTC)[reply]

Suing in another country would depend on how much money was at stake, usually. If it's enough and they could, they would (and which countries it makes sense in could be different in a few decades). It may be less likely if they don't expect a copyright in their home country, and unsure if rule of the shorter term could also come into play in that situation, but it is possible. Some countries have treated that type of photo differently than a scan in the past, so it's possible they could again down the road (though hopefully will continue to coalesce around them just being copies). Agreed that recent law changes have made the distinction much less likely to matter, but laws can change the other way too. And some people naturally think they own the copyright in their own photos, without thinking that there are edge cases where copyright may not exist, so the tag can also be useful from that educational standpoint, if photos of that type get uploaded here without the photographer's "permission". The idea over PD-Art started with the Bridgeman case actually, where the first decision actually did use UK law, and while the second one did not, it still referenced it and made arguments based on it, which then led to further opinions from UK entities (which also differed). The template existed here well before the NPG case. The WMF policy also slightly predated that lawsuit. Carl Lindberg (talk) 12:53, 19 July 2024 (UTC)[reply]

Ah, you're right about the history of the template. I'm certainly not saying it's wrong or can't be educational — just saying it is less useful. Especially considering how tenuous the copyright claims are in the first place in most countries, I would be shocked if such a lawsuit actually happened. I'm not saying that it's any less theoretically possible in this hypothetical scenario — just that I would be very surprised if it happened. I would also be shocked if countries moved towards giving a copyright to faithful photos of 2D PD artwork. Things have globally moved only in one direction for a reason. And the internet is, I think, a large part of that. D. Benjamin Miller (talk) 15:26, 19 July 2024 (UTC)[reply]

w:en:File:'Cyparissus', copper and brass sculpture by --Bumpei Akaji--, 1968, --Hawaii State Art Museum--.JPG

This is a sculpture authored by w:en:Bumpei Akaji, in which the involved image is under a non-free tag at English Wikipedia. However, the sculpture's date is 1968. If 1968 is found to be the sculpture's date of public display, it may be P.D. courtesy of {{PD-US-no notice}} (as a pre-1978 work), but I need more third party opinions regarding this (especially if it might be under sculptor's private hands and was only publicly-displayed in the Hawai'ian museum after 1990, which may make it not OK for Commons if ever). JWilz12345 (Talk|Contrib's.) 03:22, 19 July 2024 (UTC)[reply]

There would be a separate copyright in the image, even if the sculpture is not copyrighted. D. Benjamin Miller (talk) 03:27, 19 July 2024 (UTC)[reply]

@D. Benjamin Miller I reinstated the PD-user tag of the uploader that was removed by another user. JWilz12345 (Talk|Contrib's.) 03:30, 19 July 2024 (UTC)[reply]

Category:Artwork at Times Square station

Rather problematic bunch of photos. --Geohakkeri (talk) 12:52, 19 July 2024 (UTC)[reply]

For artwork later than 1978, and photos focusing on the artwork itself, probably. Most of the photos directly in that category seem fine, though the subcategories less so. Carl Lindberg (talk) 12:56, 19 July 2024 (UTC)[reply]

though the subcategories less so Yes, I mostly meant them. --Geohakkeri (talk) 12:58, 19 July 2024 (UTC)[reply]

Brazil FOP

There seems to be a difference between Template:FoP-Brazil (written in 2012) and COM:FOP Brazil (likely more recent). It would be good if the two were aligned. Enhancing999 (talk) 13:42, 19 July 2024 (UTC)[reply]

@Enhancing999 I don't see any difference with respect to the intended meaning. DarwIn made a substantial change in 2017 by adding a summarized version of the Brazilian courts' regulation on Brazilian FoP. The regulation itself, IMO, is parallel to the regulations imposed by Belgian and Dutch FoP rules. Per COM:FOP Belgium, the image should depict a Belgian building or monument as it is found there, and reusers should not edit out the surroundings like the sky and the grass/ground/part of roadway. Per COM:FOP Netherlands, Dutch legal literature and jurisprudences tend to be strict in the three-step test: an edited image of a building or statue that crops out the entirety of the surroundings is already a breach of the FoP privilege and is already causing undue damage to normal economic exploitation rights of the artists or architects. Same goes to the Brazilian FoP: the listed cases at COM:FOP Brazil show that courts tend to declare guilty verdicts to re-users if they edited out the surroundings. Worse, a guilty verdict awaits to the re-user if he/she/they did not made an effort to cite the name of the sculptor/architect/whoever was the author of the involved landmark/work. JWilz12345 (Talk|Contrib's.) 14:00, 19 July 2024 (UTC)[reply]

The template currently says "as long as the artwork is accessory". If so, most files in Category:Meteoro (Brasília) should be deleted. No idea how this relates to the Netherlands, but the question here is only about Brazil. Enhancing999 (talk) 14:05, 19 July 2024 (UTC)[reply]

@Enhancing999 in my opinion, "accessory" here does not mean "de minimis" or "incidental"; rather, it means the work should just be a component of the image, not the only component of the image. Other components like the sky and the ground should stay, not edited or cropped out. Very similar to Dutch and Belgian versions, implementing the Berne three-step test. Perhaps DarwIn may provide more comprehensive explanation though as they are very active in content coming from Portuguese-speaking countries like Brazil. JWilz12345 (Talk|Contrib's.) 14:13, 19 July 2024 (UTC)[reply]

File:Meteoro de bruno giorgi.jpg is compliant IMO, as the elements/components like the building at the background and the water are still there. Remove those through image manipulation – so that only the sculpture remains – and you can no longer be "defended" by Brazilian FoP in accordance with existing Brazilian jurisprudences. JWilz12345 (Talk|Contrib's.) 14:16, 19 July 2024 (UTC)[reply]

Commons:Deletion requests/File:Priscilla l Teaser Trailer.webm

Could i get some comments on this? Trade (talk) 18:07, 19 July 2024 (UTC)[reply]

Obtaining permission for iconic/historic photos

Greetings, Currently there's a large NFCC debate on enwiki regarding en:File:Shooting of Donald Trump.webp, a photograph taken by journalist Evan Vucci and published by the Associated Press and Business Insider.

Due to the historic nature of the event and the composition of the photo, it's been immediately dubbed "iconic" and "historic" across social media and enwiki editors agree, therefore touching off the NFCC debate: can we use this photo despite its copyright and licensing status?

But I'm curious about another approach: how difficult is it for a WMF representative to approach the copyright holders and obtain a free license for such media? Is this a difficult or unfeasible proposal? It seems that rather than twisting ourselves into knots to justify non-free usage, if the copyright holder just grants a Creative Commons license in the first place, we put it on Commons and be done forever.

In these days of social media, the cat's already out of the bag--any memed photo is circulated endlessly and copyright be damned. It almost seems worthwhile, in an exceptional case like this, for the author and copyright holder to put it in our hands and acknowledge that this information is already "free" anyway. Elizium23 (talk) 21:00, 19 July 2024 (UTC)[reply]

Given that it was a professional photo taken by a journalist working for a newspaper/agency, I think it's incredibly unlikely that the photographer or agency would release it under a free license. A news agency wouldn't give up commercial rights to such an important photo. Fortunately ENWP is able to get educational value from it via Fair Use (depending on the outcome of the discussion - I expect it will be kept on en:Trump raised-fist photographs). Consigned (talk) 22:08, 19 July 2024 (UTC)[reply]

That's a strange way to phrase it -- they wouldn't be giving up their rights, they'd be granting that right to everyone else whilst retaining it for themselves. But that's how it feels, isn't it?

I may have failed corporate capitalism in 7th grade, but I honestly can't discern how someone like the A.P. could lose money by granting a free license on a single photo. I suppose that, within Vucci's lifetime, they could put it in 50 museums and millions of tourists would flock to those museums to see a photo that can't be had anywhere else.

I have an alternative plan, though. Let's build a time machine, put the photo on a USB, and send Gov. Arnold Schwarzenegger back to 1954. He'll assassinate Vucci's parents, and smuggle the photo back into this timeline as public domain.

Alternatively, we could select a time traveler to somehow manipulate Vucci into working for the White House Press Corps, thus guaranteeing the Public Domain status of his future photo.

Seriously though, someday there will be a maverick news agency who decides that the cachet of "our photo illustrates a very important encyclopedia article" is worth granting a free license to a few bits of media. Unfortunately, since we prohibit any promotional activity, nobody would notice. Elizium23 (talk) 22:24, 19 July 2024 (UTC)[reply]

I think the time machine plans would meet COM:L, I'd say go for it!

AP would lose money because instead of everyone paying them to print their photo in articles, books, etc, they could grab it for free from Commons. If they were to donate a photo for educational/historical reasons, I imagine it would be for noncommercial use only, which wouldn't be allowed here.

In a perfect world something like WikiNews would be able to send a photographer up there with the pros to capture important photos with free licenses. There are a lot of professional photographers who take great photos of major events and post them here - I remember seeing a bunch of great Eurovision photos - but unfortunately none of these folks were next to Evan Vucci a few days ago. Consigned (talk) 22:37, 19 July 2024 (UTC)[reply]

Commons:Village pump/Copyright

Contents

Photograph of 1850 painting that may have never been publicly displayed until recently

Belgian FOP and heavy retouching

How much do we actually care about paintings being in the public domain in the United States?

Policy and laws

Yo-yo

File:Teletoon 2005.png

Mural art on a French building

Is this stamp original enough for COM:TOO Spain?

Commons:Deletion requests/Files uploaded by Trade

Is this image public domain?

Public-submitted images on NWS websites

Which expiration date should the copyright of this image take?

Fantasy euro banknotes

File:Film4 logo 2018.png is PD-textlogo, but the same file on enwiki is PD-ineligible-USOnly|the United Kingdom

Planet Labs images and CC-NC

Archive.org, old TV shows and PD Mark 1.0

A map from 1877 to 1898

Théodore Simon photos

More than just this one...

Question about a Weird Al Yankovic picture?

1959 Yearbook portrait of Charles Edward Kerbs (MATT)

File:Rogers Mall Plan.jpg

Copyright status of photos by French photo studio Harcourt

File:Jack-Thomas-Nicholas-Profile.jpg

When downloading an image, what do I need to include?

Is direct usage of PD-old ever correct?

w:en:File:'Cyparissus', copper and brass sculpture by --Bumpei Akaji--, 1968, --Hawaii State Art Museum--.JPG

Category:Artwork at Times Square station

Brazil FOP

Commons:Deletion requests/File:Priscilla l Teaser Trailer.webm

Obtaining permission for iconic/historic photos

Navigation menu

Commons:Village pump/Copyright

Photograph of 1850 painting that may have never been publicly displayed until recently

Belgian FOP and heavy retouching

How much do we actually care about paintings being in the public domain in the United States?

Policy and laws

Yo-yo

File:Teletoon 2005.png

Mural art on a French building

Is this stamp original enough for COM:TOO Spain?

Commons:Deletion requests/Files uploaded by Trade

Is this image public domain?

Public-submitted images on NWS websites

Which expiration date should the copyright of this image take?

Fantasy euro banknotes

File:Film4 logo 2018.png is PD-textlogo, but the same file on enwiki is PD-ineligible-USOnly|the United Kingdom

Planet Labs images and CC-NC

Archive.org, old TV shows and PD Mark 1.0

A map from 1877 to 1898

Théodore Simon photos

More than just this one...

Question about a Weird Al Yankovic picture?

1959 Yearbook portrait of Charles Edward Kerbs (MATT)

File:Rogers Mall Plan.jpg

Copyright status of photos by French photo studio Harcourt

File:Jack-Thomas-Nicholas-Profile.jpg

When downloading an image, what do I need to include?

Is direct usage of PD-old ever correct?

w:en:File:'Cyparissus', copper and brass sculpture by --Bumpei Akaji--, 1968, --Hawaii State Art Museum--.JPG

Category:Artwork at Times Square station

Brazil FOP

Commons:Deletion requests/File:Priscilla l Teaser Trailer.webm

Obtaining permission for iconic/historic photos

Navigation menu

Search