Commons talk:When to use the PD-Art tag/Archive 1

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pd-art also does not apply to photos of coins or anything else that has shadows. We've had several deletion request that have all ended with delete (AFIK) Fred Chess 23:03, 26 April 2007 (UTC)

Added, thanks. --MichaelMaggs 06:54, 27 April 2007 (UTC)

Although it's probably good to be conservative, from what I've read this seems unlikely to be true in general, at least in the US. A photograph of a coin that highlighted some particular 3d feature, such as the reflectivity of the surface or the patina or something of that sort, would probably have copyright, but the more common case where a coin is basically stuck on a scanner bed or photographed plainly from straight-on wouldn't get new copyright. ---Delirium 07:30, 12 December 2007 (UTC)

There is a problem here.

• Photographs of coins usually do not pass the "en:Threshold of originality" (there reproduction is a mere technical act), therefore cannot be protected as work of art, therefore are "public domain" picture if no other reason justify a "copy-right".
• Several coins deletion requests were based on the idea that the coin itself is subject to author's right, and its photograph is therefore a derivative work - which is a different question.
• Now, there may be a policy on Commons that says "even though there is no legal restriction on coins photographs (ancient ones, for instance), they are not accepted on Commons", but then, ... says who ?

Michelet-密是力 07:34, 14 December 2007 (UTC)

I have some sympathy with the position that a straight 'record' photo of a coin does not generally create any additional copyright for the photographer, and that is certainly so in most countries for a coin that is just "stuck on a scanner bed". That's a mere mechanical reproduction, no more. There are more problems, though, with carefully lit photographs such as might be found on a museum website, since in the UK at least it's hard to see why a court would or should make any distinction between such an image and a carefully-lit photo of an old master which as already stated in the UK section would not be allowed. The lighting of very low relief objects is not trivial, and given the very low threshold of originality applied by the UK courts I would expect that to be enough to establish the photographer's copyright. It seems to me that this is a country-by-country issue, and that we shouldn't have a blanket ban on coins purely on the basis that they may show some very slight relief. So I do support Michelet's edit to remove reference to a ban on all coins --MichaelMaggs 10:27, 14 December 2007 (UTC)

Paintings with frames

The page states correctly that since frames are 3D objects, PD-Art could not be applied to images of framed paintings. It also recommends (and in doing so, accurately describes the common practice and consensus on the commons) cropping away the frame in these cases. Can someone explain to me why a crop of a copyrighted photo (a derivative work) should magically become PD as "ineligible to copyright"? I don't get it. Lupo 06:55, 27 April 2007 (UTC)

Ehr, but Lupo, the idea of PD-Art says that you cannot hold copyright of a photo if it merely depicts, in a faithful way, a 2D object that is out of copyright. At least that is how the template puts it.

Fred Chess 13:25, 28 April 2007 (UTC)

But why would simply cropping the digital image to remove the frame make the cropped image ineligible for copyright? The photographer would have had to adjust lighting, camera angles etc. with the frame in the picture because of the interaction (specifically reflection of light) between the frame and the canvas. --Iamunknown 20:51, 28 April 2007 (UTC)

The reason is that copyright can subsist in only those parts of an image that the court has held are original (it's quite common that some parts of an image may attract copyright protection while others may not). In this case, Bridgeman tells us that, legally, the central 2D section is not considered original for this purpose. So, if the frame is cropped away, only the PD, non-original part remains. --MichaelMaggs 21:47, 28 April 2007 (UTC)

Do we have some confirmation (an actual court case or such) for the theory that a photographer may have a copyright only on some parts of a photo of his, but not on others? AFAIK, Bridgeman v. Corel did not say that. Lupo 08:03, 29 April 2007 (UTC)

An interesting question. I may not have expresed it quite correctly above. In Common Law jurisdictions, at least, infringement of the copyright in a work is established only if the defendent has taken a substantial part of the skill and labour expended in creating the original new work. One of the main UK textbooks, Coppinger and Skoane James on Copyright states that "the courts, in considering whether a substantial part has been taken will disregard the parts which have been taken without alteration from the pre-existing works", relying on Drayton Controls -v- Honeywell which was applying the leading case of Interlego -v- Tyco. I have hard copies of those, but don't know if the texts are available online. In the situation we are discussing, a cropped version of an old painting contains only parts taken without alteration, and thus couldn't support a cause of action by the original photographer or employer. --MichaelMaggs 16:20, 30 April 2007 (UTC)

Excellent. Now we're getting somewhere. I think it is important to be able to back up our recommendation (to crop away the frame) to avoid giving false advice. What's the situation in other countries? In particular, in the U.S.? Lupo 06:51, 1 May 2007 (UTC)

Am I correct in reading MichaelMaggs's quote above as actually saying "the courts, in considering whether a substantial [effort of skill and art] has been [expended by the photographer] will disregard the parts [of the photographed artwork] which have been [included] without alteration ..."? If so, doesn't that mean that a photograph of a public domain painting in a frame ought itself to be treated as a copyrighted work, as a court can be expected to disregard the status of the painting itself (under Bridgeman) and concentrate on the frame? If that's true, then a cropped-down copy of the photograph that omits the frame shouldn't be acceptable for {{PD-Art}} — merely cropping a copyrighted photograph shouldn't remove its copyright. (I'm not trying to WikiLawyer here, just to understand the Commons and en: rules.) en:RossPatterson 15:43, 30 June 2007 (UTC)

I'm not entirely clear on your interpretation of the quote, I'm afraid. Let's take an example. If I make a copy (A) of someone else's work (B) without permission I will infringe the copyright in B if I take [ie if I make use of] a substantial part of the skill and labour that was expended by the original author of B. But in considering whether a substantial part has been taken, the court will disregard any part of B that was not itself original, eg because it had been derived without alteration from some pre-existing earlier work (C). Thus, the author of B cannot claim copyright in any part which was not his/her own, but was taken from some earlier work of another author. Note that it does not matter whether, in creating A, I expend a lot of my own effort - eg in adding some new original design. I can't avoid infringement by creating a new copyright work of my own. The only thing that matters is whether I have taken a substantial part of the skill and labour that was expended in creating the [original parts of] B. Hope that helps. --MichaelMaggs 18:49, 30 June 2007 (UTC)

Thanks, I think I understand now. The reason that a copyrighted photograph of a public-domain painting in its frame can be cropped down to a public-domain image of just the painting is that the photographer's copyright doesn't include the painting in the first place. Cropping out the frame excludes the only copyrighted work (the photograph of the frame). en:RossPatterson 21:34, 30 June 2007 (UTC)

I'm not familiar enough with the US case law to help there, I'm afraid, but I'd be astonished if the answer were to be different. If it were, that would mean the photographer being able to gain a new copyright over an entirely public domain image, which sounds highly unlikely even from first principles of copyright law. --MichaelMaggs 16:20, 2 May 2007 (UTC)

Restorations of old photographs

Old photographs (of whatever subject) are works in the sense of copyright. When an old, deteriorated photo is restored, arguably a new image is created. It is believed that such restorations fall under Bridgeman v. Corel in the U.S. See Commons:Deletion requests/Image:Daguerreotype Daguerre Atelier 1837.jpg, and on restorations in particular also see Derived works and restorations of works in the public domain. This is another case where {{PD-Art}} makes sense. Lupo 06:55, 27 April 2007 (UTC)

I'd be wary of bundling into PD-Art what is actually a rather different issue: the extent to which restorations and minor 'improvements' in an image can create a new copyright. Bridgeman v. Corel did not explicitly address that, I believe, in spite of what some Commons users might like to argue. Sometimes, users talk about "mechanical reproduction" without saying exactly what is meant by it: in some countries it will relate pretty well only to a photocopy or a raw scan while in others the expression may be understood much more broadly. If we bundle too much up into PD-Art (which is already complicated enough as it is for users to understand), uploaders are simply going to rely on it for all sorts of things where it does not apply. Restoration might merit a new tag in its own right, though I'm not sure if there is enough in the way of legal guidance country by country for us to be able to say anything useful. Many cases will probably depend very much on their own facts and on the extent of the restoration/improvements. --MichaelMaggs 16:39, 30 April 2007 (UTC)

Question about country of origin

Does this mean that unless we can establish in which country PD-Art images were photographed, they need to be deleted? --Iamunknown 20:52, 28 April 2007 (UTC)

Well let's find out. Haukurth 15:23, 10 August 2007 (UTC)

Kept after six hours, without a rationale for the decision. It seems like one can safely ignore the requirements of Commons:When to use the PD-Art tag. --Kjetil r 21:48, 10 August 2007 (UTC)

I reverted the closure. They need to prove that the photograph is in the public domain in France and there's still no attempt to do that. Haukurth 23:41, 10 August 2007 (UTC)

I think so, yes. That's the reason for suggesting users find out the museum that the picture is in, first. Maybe we should make that explicit. --MichaelMaggs 21:42, 28 April 2007 (UTC)

However, since the en-WP operates under U.S. law exclusively, Bridgeman claims can be made even for UK paintings there. Hence, move such images to the en-WP. Lupo 08:06, 29 April 2007 (UTC)

Sorry, Lupo, I don't understand what you have in mind. --MichaelMaggs 08:52, 29 April 2007 (UTC)

Quite simply that if we want to move to allow PD-Art only on images if PD-Art also applies in the source country of the photograph, I think we can move all images failing that test to the English Wikipedia and host them there locally. Or also on the nl-WP or the jp-WP, as such reproductive images would be fine by Dutch or Japanese and U.S. law. Lupo 06:49, 30 April 2007 (UTC)

The en.W servers are in the US as well, I believe, so the legal situation there is the same as on Commons with one exception: that the images might be OK there under the 'fair use' provisons. --MichaelMaggs 15:54, 30 April 2007 (UTC)

It's got nothing to do with "fair use". The commons has the rule that an image must be PD in the U.S. and in the source country. The commons does not apply {{PD-US}} to non-U.S. works. The en-WP requires only that the image be PD under U.S. law, and does apply PD-US to foreign works. Hence, you can make Bridgeman claims at the en-WP even for images from a country where PD-Art does not apply. No need to use "fair use". Lupo 16:08, 30 April 2007 (UTC)

I don't think we disagree. I was taking about the legal situation; you were talking about the rule that en.W actually applies. They simply ignore as I understand it the fact that a photo may have come from a source which is not legal in the originating country. --MichaelMaggs 16:24, 30 April 2007 (UTC)

Sorry, but when we're talking about the "country of origin" the country in which the photograph was first published, rather than the country in which the photograph was taken? Or are we using it in a totally different sense to that which it has in the Berne Convention? -- Arvind 18:33, 12 June 2007 (UTC)

Perhaps I should have made my comment clearer. The guidelines currently say that we should not upload a work if the country in which it was taken grants copyright protection to photos of two-dimensional objects. I am asking why the country where the photo was taken is relevant. Surely it is the country of first publication that matters? I do not see why there should be any problem with a photo of a painting hanging in the British Museum, which is published for the first time in a book in the US - UK copyright law shouldn't even apply. -- Arvind 15:23, 16 June 2007 (UTC)

You may well be right. I guess Michael (the main author of this guideline) was most concerned about images being copied indiscriminately from museums' web sites. This may even be the large majority of our art images. Such images are published where they were taken... Lupo 11:52, 4 July 2007 (UTC)

Yes, Lupo's correct. I doubt that we have very many if any images of eg a painting hanging in the British Museum which was published for the first time in a book in the US. Museums invariably want to control and publish their own stuff, and a local publisher will handle it. --MichaelMaggs 17:37, 4 July 2007 (UTC)

I take your point about websites. Would it be all right if I fiddled with the wording a little bit to make it clearer? I am thinking of sections like this:

Photograph of an Old Master scanned in from a recently published book

OK if the original photograph was taken in the US or another country with a similar rule (check which museum holds the painting). The book-publishers cannot normally claim any new copyright on their reproduction if it is a mere mechanical copy of the original.

I can easily envisage situations where a book on, for example, Turner published in the US includes original photographs taken in the UK. We shouldn't be saying that those pictures are not allowed. -- Arvind 18:45, 4 July 2007 (UTC)

Sure,feel free. --MichaelMaggs 19:50, 4 July 2007 (UTC)

Sweden

The Swedish copyright law contains: "As a photographic picture is considered also a picture which has been produced by a process analogous to photography." I believe it refers to older photographical techniques (whatever they might be). I do not think it refers to photocopies or scanning, because as far as I know noone has ever claimed they have exclusive right on a photocopy in Sweden (and I remember that a lot of photocopies were being spread in the 1980s).

Fred Chess 22:34, 1 May 2007 (UTC)

I added Denmark, Finland and Norway in the same list. Commons:Licensing doesn't have anything about Iceland so I haven't checked their laws. Samulili 11:12, 2 May 2007 (UTC)

I have removed this text for now, as I think the Swedish code referred to simply says that photographs may be copyright, along with things like photographs (presumably such as daguerreotypes). I don't think it relates to this issue at all. --MichaelMaggs 08:22, 3 May 2007 (UTC)

You are incorrect. Article 49a is specifically about photographical pictures. Copyright (in Sweden) covers only photographical works (article 1). [1]

Fred Chess 08:52, 3 May 2007 (UTC)

(Edit conflict; to Michael:) The text referred to the protection of photos that to do not pass the threshold of originality as simple photographs. The situation in these countries, as far as I understand it, is that if the photo is sufficiently original, it is a "photographic work" and is copyrighted (70 years p.m.a.), but if the photo is not sufficiently original, it still gets a protection with a somewhat shorter term. In countries that do not have the concept of "simple photographs", such not-original-enough photos would be just not copyrighted. Of course, what is "original enough" varies between countries.

If these countries consider photographic reproductions of 2D public domain works to be "simple photographs", then there is a relation. Notice what Rtc had written about the situation in Germany. Lupo 08:55, 3 May 2007 (UTC)

OK to you both. Thanks for the explanations. --MichaelMaggs 10:13, 3 May 2007 (UTC)

About country-specific laws for the Netherlands

I'm not that sure that the quoted case for the Netherlands (w:nl:Van Dale/Romme-arrest) is comparable to Bridgeman / Corel. The specific case didn't handle about photographs or reproductions at all, but about a dictionary (the famous Van Dale dictionary) where the words were reproduced in another form. The thought behind the verdict ('a creative work has to be original to be applicable for copyright') is comparable to Bridgeman / Corel, but the verdict itself is IMHO not. Maybe we should quote the case, but note the difference between the case and Bridgeman / Corel. Husky ^{(talk to me)} 22:55, 5 May 2007 (UTC)

Bridgeman applicability outside New York area

Is there any legal reason to believe that Bridgeman Art Library v. Corel Corp. forms a solid basis for Wikipedia guidelines in the US? It certainly holds within the Second Circuit, but it hasn't escalated beyond the trial court and therefore isn't binding on courts in the other Federal circuits (although they may choose to accept it). Or is there a broader argument that supports the current en_WP and Commons practices? en:RossPatterson 15:56, 30 June 2007 (UTC)

"Several federal courts have followed the ruling in Bridgeman, though it has yet to be endorsed specifically by the Supreme Court. Moreover, this case has not been cited by any appellate-level circuit court meaning that it has no mandatory legal authority and its persuasive legal authority, as a district court opinion, has not been confirmed. However, the Supreme Court's ruling in Feist v. Rural, explicitly rejecting difficulty of labor or expense as a consideration in copyrightability, seems to support the fundamental reasoning behind Bridgeman." — from Bridgeman v. Corel. Lupo 11:49, 4 July 2007 (UTC)

Wall Mosaic Pictures

Anyone has heard that mosaic pictures are considered 3D not 2D .. so we cannot deal them according Art PD laws --82.137.200.19 14:52, 22 July 2007 (UTC)

I have to say I can't see why. Can you say where you heard that, please? Is there a legal case we can refer to? --MichaelMaggs 18:04, 22 July 2007 (UTC)

Nordic countries

I was just told that there is a mass deletion request on the way, based on an interpretation of Nordic copyright laws on this page. I have serious problems with the interpretation, at least as concerns Norwegian law. It is true that photographic images are protected, faithful reproductions of earlier works can also be seen as production of copies of those works. Throughout the Act, production of copies is defined as being independent of the method used, so a photo of a painting would be a derivative work and thus covered by the original copyright. PD-art covers only faithful reproductions, and such reproductions are always covered by the original copyright. Furthermore, what is protected by §43a is not the photo as a physical object, but the subject of the photo – it can't be copied as a drawing or in any other form. This means that as soon as someone takes a photo of a work of art, that work is protected for 50 years (and 15 years pma in Norway). This would be an absurd situation; it would mean that if I made a drawing based on an old painting, a photographer could sue me since he owns the rights to the subject. I find it very hard to believe that the intention of the law was to give someone else's rights to the photographer. This sounds like copyright paranoia to me. Cnyborg 17:08, 7 September 2007 (UTC)

Could you post a translation of § 43a, please? --MichaelMaggs 17:56, 7 September 2007 (UTC)

According to the UNESCO, which has a version with updates up to 2005, it says:

§ 43a. A person who produces a photographic picture shall have the exclusive right to make copies thereof by photography, printing, drawing or any other process, and to make it available to the public.

The exclusive right to a photographic picture shall subsist during the lifetime of the photographer and for 15 years after the expiry of the year in which he died, but for not less than 50 years from the expiry of the year in which the picture was produced. If the exclusive right is shared by two or more persons, the term of protection shall run from the expiry of the year in which the last surviving person died.

The provisions of sections 2, second and third paragraphs, 3, 6 to 9, 11 to 21, 23 to 28, 30 to 39f and 39j to 39l shall apply correspondingly to photographic pictures to the same extent that they apply to photographic works.

If a photograph is subject to copyright, such right may also be enforced.

Clearly that means that the photo is granted this simple photograph protection, not the subject thereof. So the painting doesn't become copyrighted just because someone photographs it. But Cnyborg raises an interesting point: what if someone else takes another picture of the same painting? If both are intended to reproduce the painting, they should be virtually indistinguishable. Is the second photo infringing the first photographer's rights? That sounds strange and would indeed mean that no-one else could reproduce that painting. Consider an artistic landscape photo such as this one. Ansel Adams didn't get a copyright on these mountains. If someone else happens to be in the same spot and takes a virtually identical photo, is he infringing Adams' copyright? If two press photographers take virtually identical shots at a press conference of the speaker at the microphone, are they infringing each others' copyrights? And in the UK, where "sweat of the brow" gives rise to copyright? What if two photographers make the same lighting etc. choices to photograph a painting? Does the second one infringe the first one's copyright? Lupo 19:11, 7 September 2007 (UTC)

I cannot answer all your questions. But basically, if there is a PD-art photo that is at least 50 years old, we can use and modify that photo. However, if a photo clearly comes from e.g. http://www.kb.se (such as Image:Äldre Västgötalagen.jpg) then technically it is a copyvio. Also if a painting is hanging in a restricted area then obviously a photo of it wasn't taken by Joe Schmoe on his Swedish vacation.

Bottom line: no need to be paranoid. If you take a photo of a PD-painting, you will not infringe any copyright even if it looks similar to another one.

Fred J 19:32, 7 September 2007 (UTC)

Lupo asks "what if someone else takes another picture of the same painting? If both are intended to reproduce the painting, they should be virtually indistinguishable. Is the second photo infringing the first photographer's rights?" The answer to that is no, since infringement is always defined by the act of copying, or in the wording of § 43a: "A person who produces a photographic picture shall have the exclusive right 'to make copies' thereof". If my photo of a public domain painting happens to be the same as Lupo's, merely because we have both aimed to capture a faithful likeness, I do not thereby infringe his rights since I have not copied his photo. Copyright and rights in simple photos (in those countries where the latter exist) are rights to prevent copying, and are not monopoly rights like patent--MichaelMaggs 19:46, 7 September 2007 (UTC)

While the interpretation that §43a applies here might be in accordance with the letter of the law, it does not seem to be in accordance with the intention of the law. A "photographic picture" or "simple image" (fotografisk bilde in Norwegian) is not the same as any work made by a photographic technique - a scan is technically a photographic work as well, but noone would argue that this law protects photoscans. This law obviously does not apply for faithful reproductions of earlier works no more than it does for scans or photocopies for that matter. As for the labour of producing such faithful reproductions, the same could be argued for the labour for processing a good scan from a book and so on. Bottom line, for faithful reproductions of twodimensional artworks it's the copyright of the original art that applies, not the rights given by §43a of Åndsverksloven. Thus Commons:When_to_use_the_PD-Art_tag#Nordic_countries should be rewritten, at least for Norway 8I would asssume the same reasoning is valid for the other Nordic countries, but I haven't really studied those). Finn Rindahl 14:39, 8 September 2007 (UTC)

This reasoning seems very weak. You say that the current interpretation is in accordance with the letter of the law and then you move right on to saying that it "obviously does not apply". That's just not obvious at all. To enable us to decide that the letter of the law doesn't apply we would need a citation to a relevant case or an opinion by a qualified legal scholar. Haukurth 15:45, 8 September 2007 (UTC)

Well, I can understand that the way I express my reasoning is weak indeed, I'm neither a lawyer nor a native English speaker. I apologize for "rhetoric uses" of obvious and such phrases. I'll try to make express my thinking here simpler: The law in question concerns "photographic pictures", as opposed to "photographic works (of art)". Quite a lot of energy has been spent trying to define criterias for when a photographic representation should be "promoted" from "picture" to "work" - not successfully conclusive AFAIK. The question here, however, is what it takes for a photographic representation to become a "photographic picture" in a legal sense. I my understanding:

1. This is a photographic picture Church of Nesna.JPG and my rights as photographer are protected by §43a (but it's certainly not a work of art protected by §2 etc).
2. This is not a photographic picture: Christian IX - Konge til Danmark.png. It is PD because the author died in 1890, and Valentinian holds no right to this image even though he probably spent more time, energy and creativity making this scan than I did making the a snapshot of my local church. A scan is technically a photographic representation, but is not a photographic picture in legal sense.
3. This is not a photographic picture Harald Sohlberg Vinternatt i Rondane 1917.jpg, but a digitalized copy of a color lithography. While being digitalized via a camera and not (only) a scanner still is no photographic picture in a legal sense, and thus the copyright of this image belonged to Harald Sohlberg exclusively - and since he died in 1935 it's now PD.

It's possible I've got something basic wrong here, please correct me if so. Even if I got it right, I'm not sure whether this reasoning leads to concluding that images by Harald Solberg should be commonstagged PD-art or PD-old. Finn Rindahl 17:37, 8 September 2007 (UTC)

Regarding the third image, I would like to see you quote some opinions of experts or court decisions. Keeping in mind that the Nordic countries have a tradition of very similar copyright legislation and philosophy, I would like to point out two Swedish and one Finnish opinions:

1. Supreme Court of Sweden, NJA 1979, page 70, where photographs made during offset printing (photo offset) were not regarded as photographic images protected by 49a §.
2. Statens offentliga utredningar 1956:25, page 471, where photocopies of the same size as the original were not considered photographic images but as copies of the original work. (Both cases are explained in Pirkko-Liisa Haarmann's "Tekijänoikeus ja Lähioikeudet" (2006) pp. 280.)
3. Pirkko-Liisa Haarmann (2006, pp. 281) writes: "Also he who slavishly strives to follow a certain model receives protection for his images." ("Suojaa saa niin ikään se, joka orjallisesti pyrkii valokuvissaan seuraamaan tiettyä esikuvaa.")

Samulili 19:55, 8 September 2007 (UTC)

Well (1) and (2) are reproductions, i.e. copies. It's the argument Fb78 explained at Commons:Deletion requests/Image:Stub 1771.jpg, and I don't think we're arguing about this case. The problem is with photos of paintings, which seems to be your case (3). And the quote apparently confirms our understanding that these would qualify as "photographic pictures". Lupo 21:13, 8 September 2007 (UTC)

A photo of a painting is a digital reproduction of a work of art, and will not change the copyright of the original painting, nor can it claim to have the same protection. The copyright follows the painting, not the reproduction. The protection after the copyright has expired are through simple access control to the actual work of art, and to the last point I can add that the last time I visited no:Nasjonalgalleriet the security didn't bother with people taking photos at all. Jeblad 20:48, 8 September 2007 (UTC)

Right. But when someone takes a photo of a PD painting, even it is intended to be a faithful reproduction of the painting, it appears so far that it would be a "photographic picture" under these Nordic laws. Or are there photos shot by a human that cannot even be "photographic pictures"? It doesn't appear so. Lupo 21:13, 8 September 2007 (UTC)

(This took too long to write, so I don't know if I am still relevant - but here goes:)The copyright laws seems not to have applied to the stunt by Theodor Kittelsen a Norwegian painter and draftsman. He made a good draving of the central theme of a national-romantic icon: Brudeferden i Hardanger(a large painting of a bridal transport by rowing boat filled vith people on their way to the church), only more realistic: Anyone on board being definitly un-sober. The gun-saluteer almost blows the head of one of the rowers, who promptly lets go of the oar. The toast-master (magister imbibicus) clearly has a head-start on the rest, exept the bride (vomiting) and so on. Insulted nationalists aside: Copyright was clearly no issue.(The story is nearly 100 yrs old now). Artistic freedom won the day.

Also, among most artists, the word still is: If you are good enough to copy something, you are free to do so - BUT do NOT sell it as anything else - and never copy signatures! (It is often a good idea to make the copy either bigger or smaller, to mark the difference.) (It seems to be the base for some of the engraved copies of masterpieces being printed in the weeklies in my childhood.)

To put an art-work into a new form or medium is not considered copying, but borrowing of ideas, and happens all over the world as always. The difference now seems to occur when a commercially inspired person starts making money in a grand scale on someone else's work, without having made a deal beforehand. We must be careful not to spread protected material, that can be mis-used that way - but not to a degree where everything is protected.

Museums make their own policies. They state that picture-taking is prohibited, and gladly sell postcards of the "forbidden" vorks. Reason given: Blitzing is harmful to some of the works. We have no case of "illegal" photographing using only available light yet, and I doubt there will ever be, since other reasons don't hold against the law. (There may pop up a future case based on territorial rights - a different matter entirely.) Even professional photographic reproduction of - say, a painting is a question more of having a good tecnician, than to use an artist-photographer. Digital technics being what it is today, claims more of the technical know-how, but will probably give better results even for amateurs than earlier methods. So there is a very good case for the threescore and ten plus one safety-year being correct for Norwegian PDing, even for the post-cards (We may also alternatively end up with crediting the photographer/copying firm, but giving him/her no say about publishing it) and a diminutive probability that we may ever get a Court-decision about exactly that, regardless of expected outcome.

I will not claim specialized knowledge of these laws, but know well the working everyday knowledge of an average Norwegian artist (+ reading Norwegian texts from teachers recommending copying as one of the more useful exercises for art students - even allowed by the same museums that forbids photos) and am a person interested in what to publish and where. Plus got some exams involving learning and interpreting laws (not this one). --Bjørn som tegner 22:18, 8 September 2007 (UTC)

Extra thought: When learning law, we should always put cases to the extreme, in order to see where that would lead us. OK: We start with a painting being published the dying day of the painter. It gets photographed by a good repro-technical photographer at some day just before the seventy years thereafter goes out. The big Q is: Does this start a cycle of fifty new years - eventually followed by a new wait - to be followed ad nauseam, or does the reproducer own what, if anything? There is obviously a good argument for stating that the seventy-plus-years protection should mean something: The former protection is now null and void, and it should be a freedom for any serious purpose to reproduce it. Then the eventual fight is between the physical owners of the works, and the Wiki-photographer who wants to exercise his/her right to do just that.--Bjørn som tegner 23:22, 8 September 2007 (UTC)

A photograph of a painting is a derivative work and does not affect the copyright status of the original artwork. Just like you don't get a copyright on Westminster Abbey by taking a picture of it. See the Bridgeman ruling for some relevant thoughts: [2] But note that the issue here is not whether the photographs deserve copyright for being original artworks but whether they deserve copyright for being photographs. Haukurth 10:12, 9 September 2007 (UTC)

These lex ferenda arguments just aren't good enough. We probably all agree that reproductive photography shouldn't be given any sort of copyright protection but that doesn't mean that's the way it works. Haukurth 05:24, 9 September 2007 (UTC)

Well and good! I do not quite see the lex ferenda as covering it all. Any lawyer worth h*s/r salt would start searching what the law-maker might have intended the law to mean. The fast way to do that is to extremize the case, to eliminate what clearly was not intended. The rest then would be to see which interest might be stepped upon. Here we end up with the Photo-and printing firms, and the museums.

My comments: Any graphic work or drawing is so easy to reproduce that even my 8 yrs old scanner will do, and can safely be considered free-for all after 70+ yrs.(No exeption for using a more advanced (read: expensive) scanner). Normal photographic work may or may not be different, so my thought is to use ones own camera in available light-mode and be a little creative in a good photoeditor program afterwards. Most time the flash will give uncalled for reflexes anyway, so available light is better, but alas! one cannot get them all, since control of reflexes every now and then makes all the difference between usable and useless. That activity cannot be considered illegal under present laws - even if the security-guards' instructions might tell them differently.--Bjørn som tegner 09:30, 9 September 2007 (UTC)

I have been doing google searches just to see what people advice. They all say that even photos of PD paintings have protection as photographs.Example:

Om skyddstiden löpt ut för de klassiska konstverken, så [är de] fria verk. Det gör att svaret koncentrerar sig på skyddet för fotografierna och fotografen. Alla typer av fotografier är skyddade.

http://www.legalahandboken.netuniversity.se/fragor/undervisning/upphovsratt/anvand_bild/bilder7.html (notice that the website is "legalahandboken.netuniversity.se", with questions being answered by "Professor Cecilia Magnusson Sjöberg, och doktoranderna Katarina Renman Claesson och Sanna Wolk, från Juridiska institutionen vid Stockholms universitet," [3]

[..] ett fotografi av det raka strecket som kanske inte är särskilt originell ändå har ett skydd som bild i 50 år efter knäppet.

http://www.fotosidan.se/expertqa/view.htm?ID=4598

Fråga:

Har ett fotografi som man tar på ett berömt konstverk av en sedan länge död konstnär fortsatt upphovsrättsligt skydd?

Svar:

För att ett fotografi skall få upphovsrättsligt skydd måste det ha verkshöjd och då gäller samma förutsättningar som för alla andra konstnärliga verk. Emellertid har en fotograf även vissa rättigheter till ett fotografi som inte har verkshöjd. Detta skydd gäller oavsett vad bilden föreställer. Skyddet ger fotografen rätt att mångfaldiga bilden och att göra den tillgänglig för allmänheten. Denna rätt gäller dock endast under femtio år (och inte sjuttio), räknat från det år då bilden framställdes.

http://www.kb.se/BIBSAM/juridik/fos/fotografi.htm

Fred J 14:47, 9 September 2007 (UTC)

Those of you who can read Norwegian should read no:Wikipedia-diskusjon:Retningslinjer_for_billedbruk/Gammel_versjon#Fotografier_av_gamle_kunstverk. Several authoritative sources claim that photos of paintings are «simple photographs» and thus protected for 50 years. --Kjetil r 15:21, 9 September 2007 (UTC)

Bad for us, but good for clarifying our policy. These sources (and Samulili's reference to Pirkko-Liisa Haarmann (2006, pp. 281), as well as those mentioned by Kjetil) should be added as references on the policy page itself. Lupo 15:28, 9 September 2007 (UTC)

Note, however, that this neighbouring right is granted in these countries in general only to photos of nationals or residents of the country or, in some cases, of the EEA, and to photos first published in the country. See §61 (Sweden), §§63 & 64 (Finland), §86(5) (Denmark), §58 (Norway), and §§60 & 62 (Iceland). So, it would be fine for, e.g., the sv-WP to use U.S. Bridgeman images. It's just not ok for us here to use PD-Art for Swedish etc. photos, because they are copyrighted in their source country. Lupo 15:28, 9 September 2007 (UTC)

Yes I agree.

Note that while the Norwegian copyright law says "This Act shall also apply to literary, scientific and artistic works and other works produced prior to the entry into force of this Act." (§60) the Swedish has several transitional provisions. These are not included in the unesco pdf (see page 36).

As explained on template:PD-Sweden-photo, photos lacking verkshöjd (in German "Schöpfungshöhe") are PD if created before January 1, 1969 because protection was explicitly not restored when the law was changed. The old law had a protection time of 25 years and the new law was as of 1994. See [4] (Swedish).

Also note that the protection time in this case is counted from its creation, not from when it was first published.

Fred J 15:59, 9 September 2007 (UTC)

Lessee if I got that right:

1. a. I do not break any copyright law by scanning illustrated books about art, books being more than 50 years old? b. Illustrations therein, as derivative art, may be considered PD? (Artists being well and truly dead for the mandatory number of years, of course.) Repro-quality will be not so good, but there will be wanted pictures available in more articles.
2. Exeptions for illustrations from an artist, making the pictures for just this book? (70+-rule applies posthumously?) Our older versions of Snorres Kongesagaer should be free by now.
3. I do not break any copyright-rules by making my own photos in a museum? (Territorial troubles aside) My photo will be of the same painting as another photographer who has the right of his/her pic, but nobody can have a patent on the original painting, I strongly believe, or the ruling gets absurdly long-termed (Law-makers intentions were 70 years, not up to 120).
4. Books being essentially more than 150 years will normally be "safe" to copy from, since the probability of any right-holder being still alive is nil.
5. "Younger" books are probably filled vith a mix of new and older illustrations, so better to steer aside, unless there is a register giving dates.
6. No photograph or scanning of a two-dimensional work of art can achieve protection longer than 50 yrs. (Craft, not art.)

Question-marks are where I am uncertain.--Bjørn som tegner 18:59, 9 September 2007 (UTC)

First, a photo of a work of art is a reproduction. Second copyright laws in Norway, Sweden and Finland are not identcal. Third, don't use the American «copyright» term when trying to explain protection of photographic images and photographic works as the concepts are not comparable. Fourth, do not believe that because a photographer claims rights to an image the person that made a depicted painting will roll over. One artist organization in Norway claims that there are no difference between scanning a painting and and taking a photo of the painting, yet they also says they know photographers disagree with them. So which interpretation shall we follow, photographers that claims everything belongs to them, or the actual painters? I strongly believe that BONO has a reason to claim that such images are reproductions, but also that a book with such images in itself can be a work of art. 77.106.151.89 02:40, 11 September 2007 (UTC)

I do support your #3, that the term "copyright" is not being discussed: the proper term is protection of photography or photographical protection. If you look at my posts here you will also see that I have avoided calling it copyright.

I have also not said that the copyright laws of Scandinavian contries are identical. However, they are surely very similar! And there is evidence that both the Norwegian, Finnish and Danish copyright law regard photographical protection in the same way, because we have agreeing references from all three countries.

In regards to your point #4, I agree that photographers do claim that everything belong to them. In Sweden blf (bildleverantörernas förening) claim that most photos achieve verkshöjd, but also say that the question of verkshöjd has not been tried in court and might ultimately have to be resolved by the EU-court (see e.g. [5] and click on "Fotografier tagna före 1969". In Swedish).

As a personal reflection, it is quite possible that BLF are right in that the Swedish copyright law has to adopt to that of other EU countries such as Germany. A writing (remisssvar) from the Swedish Bar Association to the Swedish Department of Justice recommended that the Swedish copyright law's view of photographical protection should be changed so that it would be more in line with the copyright laws of other EU countries and also that the freedom of panorama exeption should be removed. (Remissvar R-2006/0933, from the Swedish Bar Association website) Such topics have been discussed on Commons before. But it is still an open question and I think we should go by existing law (since it benefits us more).

Fred J 07:47, 11 September 2007 (UTC)

I seem to have stepped on one guilds prerogatives, by putting my own names on phenomena being discussed in legalese. Sorry, I'm old enough now to state that I may step over and make comparable mistakes at any time - I understand what you try to say, but it doesn't stick. I'll try to comply, though. But the end-product of discussions like this ought to be something usable for us commoners in terms of guidelines.

I see two points not being into discussion yet. Scanners are sold with better and better programs for reproducing more and more advanced - even three-dimentional things. There are no restrictions in the buyers contract putting limitations on artwork, regardless of PD. Can then a scanner (or a camera with say 48 scenery-programs be the artist?

Same goes for an architect with good diplomas, medals and prizes, clearly an artist in the legal sense, taking a sabbatical as a carpenter. Is his wall-building or floorlaying a work of art, since he obviously (in this theoretical case) is no good at carpentry. (His firm is not the one having the contract, so I fire him). Or he is good enough and skilled at this kind of work. (He does skilled work - his part is not what may make the building a work of art).

Point is: "Photography" (scanning is a photo-graphic process, now moved into cameras) comes at three levels: one unprotected, one protected by photography and finally: one protected as art. Borderlines are in no way clarified, but I think we are seeing the contours of something. But I will not yet be able to conclude in my own words yet. I still remember a neighbour, though. He was a painter in both senses of the term, and had no trouble handling the difference, so your photographers guilds are in for a downhill trip if they try to make a case for everything being art. (Then even I am an artist, who don't feel I have feet big enough for that kind of shoes.) --Bjørn som tegner 11:54, 11 September 2007 (UTC)

One more point: The law of photography was revised 1995. The protection then got extended from 15 yrs after death of photographer, but no less than 25 yrs after pic was taken to the above mentioned new rules. Law also states the protection valid also for works being done before that. The Norwegian Constitution, already in 1814 stated that laws cannot be retroactive, so this can only be understood as a prolongation for works already under the old asylum. Ergo: Any work already being in the PD per day before the new law got enforced, follows the old rules. This also seems to be the reasoning in one of our current books on the subject.--Bjørn som tegner 09:22, 15 September 2007 (UTC)

As Haukurth said on Commons:Deletion requests/Images of Jorunn (uploaders request):

“

A copyright law that criminalized behavior which happened in the past would run foul of normal legal standards but this doesn't.

”

Fred J 11:03, 15 September 2007 (UTC)

OK it turns out that Björn is right, due to transitional regulations that were not included in lovdata.no (lov nr. 37 av 23. juni 1995, II (ikrafttredelses- og overgangsbestemmelser) pkt. 2 g).). According to Norheim, p.48, a photographical image is protected in either of these cases:

• Fotografen var i live 1. januar 1980. (Vernet for fotografier tatt av fotografer som døde denne dato eller senere, ville tidligst utløpe 31/12 1995, og da var åvl. § 43a trådt i kraft.) Eller
• Det fotografiske bildet er tatt 1. januar 1970 eller senere. (Det 25-årige vernet etter fotografiloven, vil for fotografier tatt denne dato eller senere, tidligst utløpe 31/12 1995, og da var åvl. § 43a trådt i kraft.) (p. 48)

which translates to

• If the photographer was alive on Jan 1, 1980. Or
• If the photographical image was taken on Jan 1, 1970 or later.

Fred J 14:36, 15 September 2007 (UTC)

That's for Norway, right? Lupo 15:42, 15 September 2007 (UTC)

Yes. I explained the details for Sweden in a post on this page on September 9. / Fred J 15:59, 15 September 2007 (UTC)

One maybe possible way around our deletion-dillemma is to use the right of quotation. Norwegian law gives any serious purpose this right, on certain conditions, which may be different from the circumstances for our long list of deletion requests. So I ask: Since the original subjects (e.g. paintings) are indisputably PD - may the reduction of pixels to what gives an OK illustration in Wiki constitute a kind of minimum to be considered "a quote"? Since the photographs are good photographic representations of the paintings, the reduction should leave us with something usable, and protect the owners rights at the same time. (may be necessary with additional text in the picture-description, but seems to be -bot- or cut- and- pastework.)I do not know - so I ask. --Bjørn som tegner 07:46, 17 September 2007 (UTC)

The "quotation right" is a "fair use" provision". It doesn't make the image free. Lupo 08:01, 17 September 2007 (UTC)

When you say image, do you mean the original PDed work of art, or the photographic reproduction? --Bjørn som tegner 06:57, 18 September 2007 (UTC)

Sorry for being imprecise. I meant the photograph. If the depicted 2D original is still copyrighted, a photo will be subject to the copyright on the original anyway as it is a derivative work. If the depictd work is PD, then we only have to consider the copyright on the photo, and if that copyright (or its "photograph neighbouring right") has not expired yet, then the "quotation right" won't make the image free either. Quotation is a fair use. Lupo 08:41, 18 September 2007 (UTC)

Which in many cases seem to give the unintended-by-the-lawmakers answer of a minimum of 120 years of protection before an encyclopedia can publish as finally PD! Small Wonder the wise King Solomon in his second role of the Preacher, told us: There seems to be no end to the follies of this here world.(I claim the right of quotation, since that text clearly is past the PD limit, even if still relevant).

Some of the above-mentioned titles seem to come from a catalogue from an auction-firm. I have no position or standing to ask, but they should have a chance to answer if they can liberate a low-resolution-version to our use. (With attribution). Uses of low-res-pics with attribution are at the moment being negotiated with a few of our Norw. museums, who till now are positive to the task, provided medium sized orders for pics. (Organizing is under way). At least keep until someone has asked, and brought back an answer.--Bjørn som tegner 20:21, 20 September 2007 (UTC)

I don't quite follow. Why 120 years? You don't have to wait 70 years to take a picture of the artwork. Haukurth 21:13, 20 September 2007 (UTC)

Reasoning as follows: Normal protection = 70+ yrs from production (and wait for burial). Inbetween, the work goes to some exhibition and gets photographed for catalogue or sometimes poster. Work goes into cellar (Have you ever visited the storage-room of a medium-sized museum, you understand) - to pop up again when? New photo and fifty more yrs to wait for the photo to be PD, easily ends up with 120 yrs to wait (worst-case-scenario, but seems to happen too often to be intended by law.) To make own shots in museums can be considered risky, even if I, for one have problems understanding why.

I have found that it may be better to make own illustrations when possible, to show what is in an artists production, taking good care not to make too close likeness to original subject - and of course, I don't pretend to fill the shoes of giants like no:Piet Mondrian or no:René Magritte or in the next: M.C. Escher (still thinking how), but I think a picture is better than a loooong description. (Also some drawings at no:Bruker:Bjørn som tegner/Galleri) --Bjørn som tegner 08:50, 21 September 2007 (UTC)

I've sent a mail to the Danish Ministry of Culture requesting a clarification regarding the copyright status of this type of images. I'll update the page when they reply. Valentinian ^(talk) 20:54, 21 September 2007 (UTC)

Could someone please fix the link pointing to relevant swedish law, it's currently broken. /Lokal_Profil 12:14, 22 September 2007 (UTC)

Thanks. /Lokal_Profil 12:16, 22 September 2007 (UTC)

A section break

Ideas on whether these images can be uploaded to English Wikipedia under Bridgeman v. Corel? / Fred J 15:17, 24 September 2007 (UTC)

Commons:When_to_use_the_PD-Art_tag#France

This paragraph contradicts the result of Commons:Deletion requests/Image:Mona Lisa.jpg. We should either remove the paragraph, or delete Image:Mona Lisa.jpg. --Kjetil r 13:41, 17 September 2007 (UTC)

Was inserted by User:Jeff G.. I only rephrased it and have asked User:Micheletb about it. Lupo 14:10, 17 September 2007 (UTC)

The premise of the cited case is quite different from where PD-Art is usually applied, as the original works are still protected by copyright. --Para 14:43, 17 September 2007 (UTC)

The issue was not the underlying copyright in the artwork but in the photographs themselves. I don't see any reason why this would work differently for PD artwork. Haukurth 15:37, 17 September 2007 (UTC)

Could you post a translation into English of the relevant parts of the decision, please? --MichaelMaggs 15:45, 17 September 2007 (UTC)

The problem is that we don't know what kind of photos this French decision concerned. Was it about mere photographic reproductions, or did the photographer focus on particular details or use very special lighting effects to highlight certain areas, or what? Why exactly did the court consider the photos works? Note that the photographs were made for a catalogue raisonné... A translation of the most relevant part is given in the France section, as well at the external link used as a reference. Lupo 15:51, 17 September 2007 (UTC)

Photos made for a catalogue raisonné are typically reproductive photos of exactly the sort we like to have on Commons. The article Jeff referred to explicitly contrasts this ruling with Bridgeman. This seems reasonably clear to me. Haukurth 16:02, 17 September 2007 (UTC)

This article is readable: [6] Haukurth 16:14, 17 September 2007 (UTC)

The issue of PD-Art is unclear in France: mutually exclusive rulings exist, sometimes issued by the same court. I compiled some rulings and some doctrine at fr:Utilisateur:Jastrow/PD-art. For those who cannot read French, I found five relevant rulings: three of them oppose PD-Art, two of them recognize it. My two doctrine excerpts are (very reasonably, IMO) are in favour of PD-Art and suspect that the three aforementioned rulings were motivated by economic reasons. Jastrow (Λέγετε) 16:12, 17 September 2007 (UTC)

Great research! Haukurth 16:15, 17 September 2007 (UTC)

Reevrted Jeff G.'s addition :

• The decision about Picasso can be seen here - I've copied it because it's indeed important jurisprudence (and, no, legal decisions are not copyrighted in France ;o).
• The "kind of photograph" was definitely an artistic kind: choice of framing, colour filter, uzw. This has nothing to do with the simple technical reproduction of a painting dealt with by COM:ART, which does not create artistic rights because of lack of artistic choice (the only choices being technical ones).

Jastrow, I think these rulings should be analysed in detail. But the one mentioned here is clearly outside the subject. Michelet-密是力 16:39, 17 September 2007 (UTC)

---

PS: Here are the relevant parts of the "Picasso photographies" judgement:

• la seule condition de la protection des oeuvres photographiques [...] réside dans leur originalité,
• The only condition for photo protection [...] is [artistic] originality.
• loin de s'effacer derrière le peintre, le photographe de son oeuvre en a recherché la quintessence et au travers du choix délibéré des éclairages, de l'objectif, des filtres et du cadrage ou de l'angle de vue, a exprimé dans la représentation qu'il en a faite, sa propre personnalité, mettant en relief, là un trait qu'il fait ressortir, là un contraste ou un effet procédant du support; qu'il a de surcroît, à plusieurs reprises, procédé à des agrandissements mettant en exergue un fragment de l'oeuvre lui apparaissant particulièrement révélateur ;
• Far from vanishing behind the painter, the photograph (of the paintings) has looked for its quintessence (?) through deliberate choices of lightings, objectives, filters and framings or point of views, has expressed in the representation he gave his own personality, by insisting on a point here or a contrast there, or an effect of the substrate; furthermore he repeatedly made close-ups to highlight parts of Picasso's work that he thought were revealing;
• cette démarche globale n'est nullement celle d'un simple technicien [...] mais révèle un véritable créateur.
• This global approach cannot be said to be that of a mere technician, [...] but characterises a genuine artist.

(translated by me "on the fly" - feel free to improve) Michelet-密是力 16:47, 17 September 2007 (UTC)

---

Many of the images hosted on Commons under a PD-Art claim are surely from photographers who made deliberate choices of lighting, filters, contrasts etc. perhaps to highlight effects of the substrate etc. I don't think your claim that this ruling has "nothing to do with the simple technical reproduction of a painting dealt with by COM:ART" is weak. Haukurth 17:03, 17 September 2007 (UTC)

These are usual technical means for photographers. It may be an artistic choice when it transforms the original painting into something new, but then, it is not a "plain & technical reproduction of a painting", and that is the point of the jugement. Michelet-密是力 17:43, 17 September 2007 (UTC)

I don't think the objective of the photographer in the court case was really to "transform the original painting into something new". He was taking photographs of Picasso paintings basically to show what those paintings look like. There is nothing in the court case to indicate that his reproductive photography was any more original than typical reproductive photography like we host on the Commons. Can you be sure you would recognize photographs like those in the court case if you saw them and be able to distinguish them from "merely technical" photographs? Haukurth 17:57, 17 September 2007 (UTC)

Quite the contrary. The jugement has held on appreciating how the photograph made an original work using Picasso's paintings (which btw were copyrighted, but this was irrelevant in that case). Indeed, there is an obvious difference between the two: "plain and technical" photographs just represent the painting, if anything else is added (in our cases: odd framings or colour rendering) then there is something of an artistic creation, but it is unfit to represent the original painting in the first place, so it has no place on commons - which rules out that kind of picture anyway. Michelet-密是力 18:13, 17 September 2007 (UTC)

I really doubt your interpretation. I think there's nothing in the judgment to indicate that the pictures were odd or striking, merely that they passed a rather low threshold of originality by being competently and carefully shot. I think that if we were to see the pictures in question most of them would look just like the typical reproductive photos we have over here. When the judgment speaks of color filtering I think they mean decisions like: "Hmm, the blue colour in the sky in this painting is of a peculiar shade that I have to be very careful to capture. My first attempt didn't really look right to me so I'll try this color filter here..." What you're describing is stuff like: "Hey, wouldn't it be cool if I used a color filter that would make the sky in this painting red?" Haukurth 18:53, 17 September 2007 (UTC)

See above. +* The decoding of the decision is: The judge had to explain that the photographs demonstrated an artistic creativity, and that the question had been examined (otherwise his judgment would have been infirmed). So he stated the objective criterion that he considered, and his findings, to prove the point had been examined. The level of creativity involved is part of his appreciation, there is no objective "rule" for that, just a personal judgment from the judge. This is why you don't see that appreciation level discussed in the decision. +* If you want to use such decision as a preceding, the conclusions are simply (1) a work must demonstrate artistic creativity to gain protection (that's the law), and (2) amongst the relevant criterion that can be considered are choices of lightings, objectives, filters and framings or point of views, choices of close-ups... This is left at the judge's initiative. But you can't find an objective criterion for originality, it's necessarily a subjective judgment, and will always be, so there is no need for quantification in the decision. Michelet-密是力 05:04, 18 September 2007 (UTC)

I overlooked an important point which needs clarification as well, sorry. In that case, the court decision was not about a single photography, but about a collection. It is the collection as a whole that has been examined, and that demonstrated the personality of its author. Actually (since it is known that a collection can be protected as such by author's right, even when the items are not), this Picasso case is not really conclusive as far as any individual photography is concerned. Michelet-密是力 06:30, 18 September 2007 (UTC)

Take Image:Mona Lisa detail eyes.jpg as an example. It sure seems to me like a close-up to highlight revealing parts of an artwork. I also bet that some deliberate choices about lighting etc. were made. Haukurth 17:17, 17 September 2007 (UTC)

Quite so. Insofar as the close-up reveals an artistic choice (which in that case is arguable), there are author's rights attached to the picture itself. The close-up has been made by the Louvre, so the licence notice is erroneous (under that hypothesis). Michelet-密是力 17:43, 17 September 2007 (UTC)

Edits by Micheletb

Micheletb, you are going much too far in making such sweeping changes. Bridgeman does not apply worldwide. I realize you have strong personal views to the effect that International Copyright treaties trump national laws, but as I, Lupo and several others have told you, your interpretation is not followed by copyright lawyers or legislators. Please be good enough not simply to revert, as you have already done several times recently in connection with the France section, but come here and discuss it. You are welcome to make your legal points and see if you can find other to back up your point of view. --MichaelMaggs 19:45, 17 September 2007 (UTC)

Oh, dear, no:

• Bridgeman is of course a USA legal jurisprudence, but the principle involved apply anywhere the Berne convention does. That is, the problem is exactly the same in France, for instance.
• National law is what is applied by national jurisdictions, OK. International treaties are but an interpretation reference for these jugements. But they are important nevertheless.
• My interpretation is not followed ? What makes you think that way? Do you have legal references on that point?
• My discussion of the France section has been plainly stated above (sorry I did not see it the first time). Is your Fr-1 enough to discuss it anyway?

Michelet-密是力 20:16, 17 September 2007 (UTC)

Well ... I do have strong personal views, of course, but (1) they are backed on strong reasons, and (2) they may be argued, so (3) I do have an excuse. - What are your arguments? ;o) Michelet-密是力 20:26, 17 September 2007 (UTC)

Michelet, before asking others to present sources (there are quite a few on this page showing that Bridgeman does not apply everywhere), I think you should present sources to convince the rest of us that this isn't just your private opinion. (And given the nature of your changes, your claim appears not to be "PD-Art is fine in France" but "PD-Art is fine everywhere". You'd need sources for either claim.) In any case, you don't have consensus to make sweeping changes to the page. Lupo 20:47, 17 September 2007 (UTC)

As a legal jurisprudence, Bridgeman obviously holds in the USA, clear enough - but as far as the reasoning of "involving artistic production" is concerned, it can be translated "as-is" to any country that applies artistic property rights, and this is the point (and, furthermore, this applies to all WTO countries now). The sources are multiple: see any of the sources involved in artistic considerations in this page (including the one discussed on Picasso photographs), and the conclusions will be the same.

So what is your point? Do you need jurisprudential data from each and every country that applies the Berne convention before being convinced? This would be ridiculous.

The legal point is: for every country that applies the Berne convention, artistic work is protected only insofar as it involves artistic creativity - this is merely the Berne convention definition, that's all, and it can be traced down in every relevant local jurisprudence - what more is needed? The USA have had a major legal change in copyright legislation, t'is high time they realize it. Michelet-密是力 20:59, 17 September 2007 (UTC)

Even if this was correct - and I think you are painting with far too wide a brush - you are still ignoring the fact that in many countries even non-artistic photographs are given special monopolies with most of the same elements as copyright monopolies. Haukurth 21:31, 17 September 2007 (UTC)

The other point would be: PD-art, as interpreted on commons, is not OK everywhere, even in the US. Commons has had an objective interpretation of the Bridgeman decision (which would amount to "as far as the original is 2-D, the rendering is OK). This is not what is ment by "artistic rights", and not what has been judged by the Bridgeman decision. Indeed, when a 2-D rendering of a picture involves artistic creativity, then there is artistic rights according to the Berne convention, it is protected by national legislations that respect this convention, and there is a problem if such picture ever comes on Commons. Now, what are your arguments? Michelet-密是力 21:07, 17 September 2007 (UTC)

I partially agree, but 2D vs. 3D is still an excellent rule of thumb. Haukurth 21:31, 17 September 2007 (UTC)

You say that "PD-art, as interpreted on commons, is not OK everywhere, even in the US". I'm sorry, but I don't follow your meaning. You appear to be saying (amongst other things) that the wording of PD-Art does not, according to US law, properly reflect Bridgeman. Could you explain why not? Please recall that under long-standing US jurisprudence US courts are not bound by International Treaties: they simply have to follow US law, whether or not that agrees with the provisions of any International Treaty that the US Government may have signed up to. I'm sorry to say that you keep making points which have no validity to Common Law jurisdictions. French decisions, whatever their validity may be in France and perhaps in Civil Law jurisdictions simply cannot be extrapolated worldwide. --MichaelMaggs 21:46, 17 September 2007 (UTC)

>Haukurth : the "2D rule of thumb" is misleading, and should be corrected. The sentence "anyone taking a mere 'record' photograph of a 2D work of art in the USA gets no copyright protection in the photograph" is false, see below (and see the Picasso French case). The correct consideration is whether or not the picture demonstrates artistic creativity.

>MichaelMaggs : (1) Please recall that there is no long-standing US jurisprudence US courts not being bound by International Treaties - just find one and we'll discuss. This is ridiculous, the US constitution states that international treaties should be respected as the law in the USA. (2) This has nothing to do with "Common Law jurisdictions" - USC-17 is a statute, and its effects are limited to the USA. Do you know what common law is? (3) Insofar as the criterion is internationally defined, its interpretation can be discussed worldwide, of course. The French decisions will not be considered as binding in other countries (there is no international stare decisis) but the arguments and concepts can be transposed because the problem is identical and the Berne convention is a common reference.

I should have made it clear I was talking in the context of the US courts not being prepared to give effect to the specific terms of an International treaty (eg the Berne Convention) where it considers the wording inconsistent with later domestic law. As to your comment that "the US constitution states that international treaties should be respected as the law in the USA", please see the decision of the Supreme Court in W:Reid v. Covert (1957).--MichaelMaggs 06:06, 18 September 2007 (UTC)

That decision is about constitution, not law... Michelet-密是力 07:26, 18 September 2007 (UTC)

But I think we are now moving away from the original point which was that your edits attempted to gloss over significant differences between the way in which Civil Law countries approach copyright (normally requiring some sort of creativity or intellectual creation) and the Common Law countries which - with an exception or two - tend to look for the existence of work, labour and skill to demonstrate originality. The US may be slowly moving towards the former position, but it's not there yet. Finally, please refrain from insults.--MichaelMaggs 06:06, 18 September 2007 (UTC)

This is precisely the point. Copyright laws in common law countries used to protect"work, labour and skill" indeed, in the past; swiching to the Berne convention in domestic law makes this jurisprudence obsolete, as demonstrated nowadays by the Bridgeman decision. And the change will apply identically to all Berne convention members, that is ~worldwide. Michelet-密是力 07:26, 18 September 2007 (UTC)

The criterion for protection is originality, not 2D. See for instance the formulation as given in USC-17 : "original works of authorship fixed in any tangible medium of expression") - this is precisely what has been judged by the Bridgeman decision, and that problem is identical for every Berne member country (now the whole WTO). It's in fact a worldwide problem, not a US specificity, because this is the central question adressed by the Berne convention. And the "2D" criterion is false. Indeed, when framing demonstrates an artistic creativity, photographs of paintings will be protected by USC-17 just as by any Berne member country's law. The French case of Picasso reproduction would have been judged the same way in the USA, because the underlying criterion is the same: original work.

Now, my tentative version was terrible and should have been corrected - OK, but that's not a reason for just suppressing it. Michelet-密是力 04:40, 18 September 2007 (UTC)

OK, after a night's sleep (on my time zone), how do you like the new introduction? Feel free to correct it, of course. Michelet-密是力 06:04, 18 September 2007 (UTC)

Micheletb, you have again trashed the meaning of the article by implying that Bridgeman logic can be applied worldwide, and also by removing the section which sets out what the tag means. I will not revert you, as I don't want to become involved in an edit war, but no doubt somebody else will. You have been asked politely, twice, to discuss your ideas here and not to make radical changes to the page without first obtaining consensus and you have taken no notice whatsoever. Your behaviour is disruptive and unacceptable for an admin. If you continue to alter the page to try to make it fit with your personal worldview (which, I note in passing, nobody else is supporting) I will ask on the admin board for an uninvolved admin to block you. --MichaelMaggs 06:30, 18 September 2007 (UTC)

I partly agree. I do hope we can reach a consensus on the formulation, of course, but the legal situation for PD-art is not a matter of consensus, but a matter of facts - Commons does not rule world legislation by internal consensus... So please discuss the reasons involved (as I did), not the consensus, which is irrelevant at this stage. And my being an admin means I care about legal situations, and try to understand them. Michelet-密是力 06:39, 18 September 2007 (UTC)

And, of course, I do apologize if my bad temper shows out ;o) I simply hope good reasoning shows out as well. Michelet-密是力 06:42, 18 September 2007 (UTC)

I've rewritten it again. Feel free to change and improve. Reasons:

• "Artistic creativity" is not a criterion for copyrightability.
• The remarks about the U.S. were highly misleading.
• Use proper subheadings (===) instead of bolding (;)
• Bridgeman quite clearly does not apply world-wide. Bridgeman extended the "mere reproduction rule to photography in the U.S., but other countries do not subsume photographs automatically under the "mere reproduction" class.
• I've re-added that lost section "What does PD-Art mean".

I do hope that we'll eventually converge on a consensus text. (At least, we now explicitly mentions scans and photocopies, which we didn't before. So the page did get better in the process.) Lupo 08:36, 18 September 2007 (UTC)

It seems OK, I've added a few details and reinforced the structuration. Michelet-密是力 10:02, 18 September 2007 (UTC)

And I have removed the statement that the U.S. had the originality requirement only since the en:Berne Convention Implementation Act of 1988. It is wrong. The phrasing was in the original 1976 law (see e.g. the excerpt from the House Report H.R. 94-1476). The 1909 U.S. law didn't have that language yet, instead the courts had developed the necessary originality standard. Lupo 10:28, 18 September 2007 (UTC)

I have made a very small correction to a sentence about UK law. Otherwise, I think we have reached a good version now. I see no outstanding issues. --MichaelMaggs 16:45, 18 September 2007 (UTC)

Still some modifications, but I think the initial miscomprehension (on both sides!) has been clarified. Michelet-密是力 20:37, 18 September 2007 (UTC)

Bit more clarity needed

It took me a fair while reading this page to confirm (unless I have completely misunderstood it) that among the things that are not relevant here are:

• The location of the uploader
• The location of a website from which a picture is copied
• The location of the owner of the work, or the work itself, except at the point of photography

- either way, these points, especially the first, could usefully be made clearer. Johnbod 23:05, 12 October 2007 (UTC)

Ireland

I think in the case of Ireland, photos of PD works are excluded from copyright as per this under subsection 6, where it states:

Copyright shall not subsist in a work which is, or to the extent that it is, a copy taken from a work which has been previously made available to the public.

In this case I believe works made available to the public, refers to PD, because other works in general (which are copyrighted) are covered under subsection 5. Even if it doesn't refer specifically to PD, then it must refer to other works in general (it certainly does not exclude PD). Therefore, faithful reproductions would almost certainly be classed as copies, and so ineligible for copyright. I think this should be added to the list. Anyone agree? - ^Рэд_хот 08:29, 14 November 2007 (UTC)

Well, "made available to the public" has nothing to do with PD. I think it is basically a way to say "published, or otherwise made accessible to the general public (i.e. exhibited, broadcast, ...)". ("Published" typically has a rather precise meaning. "Made available to the public" is a broader term.

But otherwise, I guess the passage quoted may indeed indicate that PD-Art is applicable in Ireland. Anyone have any relevant court decisions? Lupo 09:02, 14 November 2007 (UTC)

I realise made available to the public doesn't exactly suggest PD, but I've been finding it hard to find out how exactly legislation does refer to PD. Subsection 5 refers to infringement, while subsection 6, refers to copying (which isn't necessarily infringement. For example, if its PD). And I don't think there are any major court decisions. The law seems to be pretty clear cut on it, so it has possibly never been contested. I was hoping to find an explicit reference to photography of PD-art, (as there are many other very specific clauses, such as one on "Recording for the purposes of timeshifting") but I don't think there is one. It is certainly not reasonable to argue that an accurate photo of a work, is not a copy. If it's not a copy, then it mustn't be accurate. - ^Рэд_хот 13:28, 14 November 2007 (UTC)

Perhaps split up nordic countries

Perhaps the Nordic countries should be split up. They no longer can be grouped as one commons guideline, so might as well have separate headers. / Fred J 18:34, 7 December 2007 (UTC)

Agree. Valentinian ^{T / C} 00:08, 8 December 2007 (UTC)

"Germany" section

This section is just completely wrong and does not represent longstanding Wikipedia or Commons practice. It represents the opinion of a minority of photographers' lobbyists, and cannot be sustained by court decisions or the relevant commentaries. de:Wikipedia:Bildrechte has followed a much more liberal rule for years, and so did the Commons. If you really believed in this, you'd have to delete all the thousands of reproductions that have been uploaded as the "Yorck Project" years ago. Some admins are ennevrating German users who - perfectly legally - upload scans of PD paintings from German books. This is not acceptable. --AndreasPraefcke 10:02, 27 December 2007 (UTC)

I agree. --Historiograf 12:02, 27 December 2007 (UTC)

changed to OK with rationale according to judicature.--h-stt !? 17:49, 27 December 2007 (UTC)

The section states the facts. It fairly describes all sides of the dispute. If you have problems with people trying to delete your photos, discuss the issue with and try to convince them to keep your photos depite of these facts. You don't change the facts if you distort their description. This article clearly asks the question whether reproduction photos are restricted (and it clearly mentions the difference between mere reproductions and reproduction photos), and the answer is clearly and uncontroversially yes in Germany. Controversial is only the question when a photo is a reproduction photo and when it is a mere mechanical reproduction. This controversy is mentioned. --rtc 17:57, 28 December 2007 (UTC)

Reproductive Photography of two dimensional works is not necessarily covered by a Lichtbild. All available judicature by the highest federal court (BGH) agrees, that “a minimum of intellectual merit” (ein Mindestmaß an geistiger Leistung) must be shown, to reach the protection by §72 UrhG. --h-stt !? 19:16, 28 December 2007 (UTC)

Reproduction photography is uncontroversially covered by a Lichtbild, and no court has ever disputed that. In fact, I have seen at least one decision that used Reproduction photography as a prime example of protection as a Lichtbild. "a minimum of intellectual merit" is not a correct translation of "ein Mindestmaß an geistiger Leistung", a correct translation would be "a minimum of skill and effort". Examples of "minimum of skill and effort" are generally given as: carefully chosing lightning and filters for making a photo of a painting; programming a machine (such as a satellite or a surveillance camera) that makes a photo, posing inside a photo booth. Common counterexamples are: Pressing the button of a photocopier machine or hitting the "scan" key of a scanning software. It is correct that "a minimum of skill and effort" is needed for a photo to acquire the character of reproductive photography rather than mere reproduction, and the demarcation is left to controversy. The description on this page is correct and fair, while your change is distorting reality. Let me quote the sources explicitly which you have deleted:

1. Rechtsfragen März 2005, II.3.A.

Von der technischen Reproduktion zu unterscheiden ist die sogenannte Reproduktionsfotografie. Fotografien von Werken der bildenden Künste können – auch wenn letztere bereits gemeinfrei sind – Schutz als Lichtbild oder Lichtbildwerk genießen (dazu siehe unten „Unterschiede im Schutz von Lichtbildern und Lichtbildwerken?“). Denn dort wird erstmals ein Foto, nicht aber die Vervielfältigung eines Fotos hergestellt. In diesen Fällen können Verbotsrechte des Fotografen bestehen.

Die Abgrenzung schutzfähiger Reproduktionsfotografie von bloßer technischer Reproduktion ist dabei im Einzelfall nicht immer leicht zu ziehen. Zum einen kann bedeutsam sein, ob ein Mindestmaß an eigener Leistung erbracht wurde, etwa durch die Wahl bestimmter Blickwinkel und/oder Beleuchtungen. Zum anderen kann es auch darauf ankommen, ob durch die eigene Leistung ein neues, selbständig verwertbares Wirtschaftsgut entsteht. Stets als Lichtbilder geschützt sind wohl jedenfalls Reproduktionen von dreidimensionalen Kunstwerken; hier kann sogar ein Schutz als Lichtbildwerk vielfach zu bejahen sein, da von der Beleuchtung bis zur Auswahl der Perspektive und des Fotopapiers zahlreiche Gestaltungsspielräume bestehen.

2. http://www.aedph.uni-bayreuth.de/2001/0242.html

Nun aber zur Frage des Leistungsschutzrechtes von originalgetreuen Wiedergaben zweidimensionaler Vorlagen, das in den USA von der sog. Bridgeman-Entscheidung verneint wird. [...]

Was das deutsche Recht angeht, so tendiert die Literatur und die Rechtsprechung leicht/mittelschwer in Richtung einer Ablehnung meiner Position. Allerdings wird man angesichts der knappen Ausfuehrungen der Kommentare mitunter auch nicht so recht schlau, was denn nun reines Kopieren (Fotokopieren) und was geschuetzte Reproduktionsfotografie ist. Zuletzt wohl Moehring/Nicolini² § 72 Rdnr. 3: "bloße Herstellung von Vervielfältigungsstücken".

The section is nowhere claiming to give a definitive answer to the question of what a reproduction photo is and what it is not, and it is nowhere saying anything about what should and what should not be uploaded here. It is merely stating the uncontroversial fact that reproduction photography has Lichtbild restrictions in Germany. --rtc 19:32, 28 December 2007 (UTC)

You are flat wrong on the translation, and following that on everything else. "Ein Mindestmaß an geistiger Leistung" is "a minimum of intellectual merit", as "geistige" refers to the intellect of a person. Skill and effort is something completely different, no one in his or her right mind would ever think of translating "geistige Leistung" this way. Please show any dictionary or other source that would support your claims. --h-stt !? 20:19, 28 December 2007 (UTC)

The truth of my statement does not depend on support. Support does not exist; statements can only ever be countersupported. This is a basic fact of logic. --rtc 20:33, 28 December 2007 (UTC)

With your deliberate mistranslation you discredit yourself in this discussion. If you translate the sentence „Die rote Kerze steht auf dem Tisch“ with „The green cat lies under the bed“ than you will have to support this claim. And if somebody tells you the correct translation of „rote“ is „red“ and of „Kerze“ is „candle“ and „Tisch“ is „table“ than your statement has already been countersupported.

Likewise to translate „Ein Mindestmaß an geistiger Leistung“ with „a minimum of skill and effort“ is a manipulative misinterpretration. „Geistig“ refers to something spiritual only, clearly excluding anything that can be grasped physically, and therefore specifically excludes everything that requires mere manipulative skills, where manipulative in this sense refers to the literal meaning of having to use ones hands. Skill and effort on the other hand can never be retranslated into something refering to „intellectual merit „, since skill is something that can be acquired by practice alone and the effort you put into this is only a meassure of the resulting physical exhaustion.

So please refrain from misleading „Non German Speakers“ with wrong POV translations.--Wuselig 23:04, 28 December 2007 (UTC)

By skill and effort, I mean mental effort, not manual effort as you seem to imply. We are specifically talking about chosing an arrangement of lighting and chosing filters when making a photo of a painting. Making these choices is the mental effort that consitutes the Leistungsschutz of a photo. I was never talking about the manual efforts necessary to realize the choice. Intellectual merit is exactly what is not required for a photo to acquire Leistungsschutz; the absence of this requirement is exactly what distinguishes Leistungsschutz from Urheberrechtsschutz. --rtc 23:45, 28 December 2007 (UTC)

And that is exactly what is not meant by „geistiger Leistung“ but it is only the thinking about applying acquired skills. A Rembrand on the wall does not become a „Karl Maier“ or „John Smith“ because Maier or Smith turned on the light when entering the room before taking their photographs and if I make a scan of the rendition of this photograph in a book this scan of mine will bet he rendition of a Rembrand and not of a Karl Maier or John Smith. The „Geistige Leistung“ represented in the picture uploaded by me will be Rembrands and not Karl Maiers. Now with a sculpture, which will look different from which ever angle I look at it, it is a different matter. But hat is undisputed. --Wuselig 00:08, 29 December 2007 (UTC)

There is a clear difference between turning on the light when entering a room before taking a photo and making choices about arrangement of lighting and filters. Turning on the light when entering a room and taking the photo would not result in a Lichtbild, and for this case I fully agree with what you say. In fact I explicitly said that below. Not each photo of a painting automatically has Lichtbild protection. Leistungshöhe is necessary. Please don't criticize ridiculous straw men caricatures of what I actually say. And even if a Rembrand is photographed as a carefully lit and exposed reproduction photo such as to acquire Lichtbild character, it is still a Rembrand and not a Karl Maier or John Smith. Karl Maier or John Smith merely own exclusive rights on this specific Lichtbild of the painting. To clarify it again, the following things are not a Lichtbild: Scan, photocopy, mere mechanical (or technical) reproduction resulting in "nicht mehr schutzfähige Reproduktionsfotografie". The following things are a Lichtbild: Carefully lit and exposed reproduction photo (schutzfähige Reproduktionsfotografie), photos of machines programmed by humans, photos shot in a photo booth, aerial photos. The text on this page makes a clear distinction between nicht mehr schutzfähige Reproduktionsfotografie and schutzfähige Reproduktionsfotografie: "please make sure you understand the difference between a purely mechanical copy such as a photocopy or a scan and a 'faithful reproduction' photograph taken perhaps from several metres away from the work of art, with carefully-arranged and professional lighting, filters and so on." --rtc 00:50, 29 December 2007 (UTC)

Into the invention of a photocopy-machine went a lot intellectual merit and the process going on in this machine is a highly technical one. But the result, as everyone agrees is never a protected work. The procedures cited by you to produce a well lit exposure are just that: a procedure. An application of learned skills that can be reproduced by an automatic machine (automatic camera, camera both, you name it). But the result will not be a protected work, instead it is a faithful reproduction of the original. Should I be foolish enough to scan my books in a photo booth I don’t create a protected work.

And let me explain the analogy with the photocopy-machine with a little more drastic example: You may have heard of the college prank to sit naked on a photocopy machine and make exposures of ones private parts. The result returned by the machine may turn some people on, but it is not a faithful reproductions of the original. This is were the distinction between 2-D and 3-D comes into play. And again, should I be foolish enough to carry a sculpture into a photo booth I may create a protected work there.

So it all boils down to your wrong perception of „geistige Leistung“, i.e. intellectual merit and your whole argument is founded on this false assumption.--Wuselig 10:29, 29 December 2007 (UTC)

You still have not understood what I am saying, sorry. Your examples have nothing to do with my argument. --rtc 17:23, 29 December 2007 (UTC)

So far I thought of a mistranslation, now I have to assume the possibility, that you are distorting this deliberately. And your quotes don't prove nothing. All judicature by the highest German court, the en:Bundesgerichtshof, supports my position, as well as User:Historiografs snipped from *the* commentary of the German Urheberrchtsgesetz by Schricker in the latest edition. Yor position is unfounded and I ask the sysop, User:ABF, who blocked the page to revert it to my version again. --h-stt !? 21:47, 28 December 2007 (UTC)

I did not claim that anything of what I say is supported, founded or proven; instead, I claimed that it is true. Nothing of what you say is supported, founded or proven either. I do not see where the BGH even agreed with what you say. Historiograf has quoted the Schicker out of context and in a misleading way. It is my impression that it speaks of a subset of those photos that are made to reproduce a painting: The subset that is merely reproducing the painting mechanically ("bloße technische Reproduktion" in [7]); the subset that is "nicht mehr schutzfähige Reproduktionsfotografie". That is exactly not this page means by reproduction photography: "please make sure you understand the difference between a purely mechanical copy such as a photocopy or a scan and a 'faithful reproduction' photograph taken perhaps from several metres away from the work of art, with carefully-arranged and professional lighting, filters and so on." A reproduction photo that goes beyond mere mechanical reproduction, that is, a reproduction photo in the sense of a "a 'faithful reproduction' photograph taken perhaps from several metres away from the work of art, with carefully-arranged and professional lighting, filters and so on" is protected as a Lichtbild, while "nicht mehr schutzfähige Reproduktionsfotografie" is for example a photo of a painting made without any special considerations at all. The arrangement of lighting, choice of filters and so on constitutes the Leistungshöhe that is needed for a Lichtbild. Claiming otherwise is essentially claiming that the Lichtbild has effectively ceased to exist since the EU directive that broadened the Lichtbildwerk. --rtc 22:03, 28 December 2007 (UTC)

The Lichtbild is almost dead since the Lichtbildwerk was expanded vastly by lowering its threshold. But there are still Lichtbilder in German law: medical X-rays, satellite and aerial photography, and it has been discussed that it would be a Lichtbild, if a photographer sets lighting once and has a number of people sit in this light to have their picture taken for a passport or something like it. --h-stt !? 09:18, 30 December 2007 (UTC)

Rtc is lying. He is manipulating the facts. Read Bildrechte (de.WP): ""Der umfangreichste und angesehenste Urheberrechtskommentar (Schricker: Urheberrecht) hat in der dritten Auflage seine Position bekräftigt, einen Schutz der Reproduktionsfotografie abzulehnen (Martin Vogel, Rdnr. 23 zu § 72). Neu ist der Hinweis, dass von einer Bild- oder Textvorlage hergestellte Klischees für den Druck nicht geschützt seien. Dabei wird die ältere Rechtsprechung zu Faksimile-Drucken (Reichsgerichts-Entscheidung Codex Aureus, RGZ 130, 196) ausdrücklich zurückgewiesen. Auf eine Nennung des Düsseldorfer Urteils verzichtet Vogel."" Zitat aus diesem Buch: die nicht mehr schutzfähige Reproduktionsfotografie. Rtc should be blocked. --Historiograf 20:22, 28 December 2007 (UTC)

Read also http://archiv.twoday.net/stories/3203578/. The Schlechtachten is not relevant, the authors have no expertise in copyright issues. The quotation of Graf 2001 is outdated by Seiler 2004 who cleary says that the main optinion is denying a protection --Historiograf 20:27, 28 December 2007 (UTC)

You should be blocked for your continued megalomania. A quotation from the German Wikipedia is not sufficient, especially as you yourself wrote the part of the article that you quote now. Your cited archivalia blog entry discusses the nonsensical views of Harald Müller that mere mechanical reproductions, epecially scans and reproduction photos in mass digitalizations, acquire Lichtbild protection. This is not what we are talking about here, we are talking about reproduction photos of paintings with individually and carefully chosen filters and lighting. Please quote the Schicker itself, and more in context than three words, then we can talk about it. As I see it, the Schricker talks about reproduction photos in the sense of mere mechanical reproductions here which are exactly not eligible for Lichtbild protection, and not in the explicitly opposite sense used in the text of this page. --rtc 20:33, 28 December 2007 (UTC)

I just read the discussion a bit, but as far as I can see its the situation all vs. rtc. If it is so, anf in my oppinion its maybe really entitled please write this clearly down again and I will unblock. Rtc will have to resign (or be blocked) in this case. (Just my 10cents.) Best regards, ^{__ ABF __} ϑ 09:23, 29 December 2007 (UTC)

Regardless of wether rtc's arguments are right or wrong, the crux of this discussion here is that rtc claims that his argument is the majority argument and there exist an opposing minority oppinion, whereas the majority of the discussants here believe that rtc's arguments are, if not outright wrong, at least the minority opinion. Appart from all this, not even rtc's arguments will justify to put the "Not-okay-tag" on the Germany section. Even the now protected text supports the "Inconclusive-tag" only, but never the "Not-okay-tag". --Wuselig 11:36, 29 December 2007 (UTC)

Im agree with User:Wuselig. It is never "Not-okay-tag". He gife minority persons how say, it not clear enough for a "it-okay-tag". Why we dont doing the same, how in the Netherlands section, and affix the "Inconclusive-tag"?--Bobo11 13:19, 29 December 2007 (UTC)

If it is the inconclusive tag that you want, that is nothing I would oppose. I oppose however to delete references and descriptions of views just to make your opinion seem as the only existing one. May I remind you that what I am telling here was also the opinion of lawyers who created an expertise for Wikimedia Germany? It is unacceptable if Historiograf deems them as completely incompetent in these matters (even if he is not saying it, he certainly means it) and wants it not even to be mentioned. Seilers views could also be mentioned to balance Historiograf's POV a little bit. We must make it clear that the intolerance towards opinions that are not his own is not acceptable. Note that no court in Germany has ever made a decision concerning "a 'faithful reproduction' photograph taken perhaps from several metres away from the work of art, with carefully-arranged and professional lighting, filters and so on". --rtc 17:23, 29 December 2007 (UTC)

@rct please give actuell controversy, not controversy are antediluvian and not a official expertise. This is the point also criticism Historiograf an a lot of other user at your argument on german. A scann from a 2-D item, can never be a "Lichtbild", and a photograph with the equate result, likewise. For this reason, are not all photograph from pitures are protected on german. Put the sence of the "Not-okay-tag" is, all photograph from pitures are protected. That's wrong. --Bobo11 18:16, 29 December 2007 (UTC)

No, I won't give "actual controversy", the given counteropinions are actual enough, and I won't agree to anything that strives to suppress these counteropinions, be they allegedly "antediluvian", be they "not a official expertise". I never claimed that a scan of a 2-D item can be a Lichtbild. It is also wrong that all photos of pictures are protected according to the paragraph. It only talks of such pictures that are "a 'faithful reproduction' photograph taken perhaps from several metres away from the work of art, with carefully-arranged and professional lighting, filters and so on", and courts will have no difficulty to distinguish that from a classic scan. --rtc 18:24, 29 December 2007 (UTC)

Seiler personally would like to award the (lesser) protection of a Lichtbild to reproduction photography, as he stated again and again in his writings, but he admits that his position is a small minority in the German legal community - according to his own words: "geht die überwiegende Meinung davon aus, dass Reprofotos weder urheberrechtlich geschützt sind, noch Lichtbildschutz genießen." (... the prevailing opinion assumes that reproduction photography are neither protected by copyright nor enjoy protection as Lichtbild - David Seiler, JurPC Web-Dok. 251/2004, para 13). --h-stt !? 09:18, 30 December 2007 (UTC)

I suggest to switch the chapter on Germany to OK and use the text in my last version. The judicature by the highest German court is consistent in that it demands a "minimum of intellectual merit" of a personal kind to award even the lesser protection of a "Lichtbild". Faithful, slavish reproduction does need some skills but not any intellectual or personal merit. So it is neither covered by the German definition of a "work" (as in Lichtbildwerk) nor by the lesser Lichtbild. It is not protected by copyright or the lesser Leistungsschutz, but may of course be protected by rules of fair competition in a commercial setting. As our copyright licenses never cover fair competition issues, we can ignore them here too. So to the sysop involved here: please restore the last OK-version. --h-stt !? 09:18, 30 December 2007 (UTC)

Kannst du sie bitte verlinken? Ich blicke nicht mehr durch, sorry. ^{__ ABF __} ϑ 09:24, 30 December 2007 (UTC)

Kann ich wen oder was verlinken? Meine letzte Version? Die findest du doch nun wirklich selbst. Oder die Rechtsprechung? Die ist in meiner Version mit drei Urteilen verlinkt. Wenn du mehr brauchst, es gibt noch eine gleichlautende BGH-Entscheidung aus 2000, aber ich denke drei Nachweise sollten reichen. (en summary: ABF asked for links, I did not understand what kind of links and suggested my latest version in the history of the front side and the links to verdicts included there.) --h-stt !? 13:43, 30 December 2007 (UTC)

The outdated reference from 2001 should be eliminated and instaed Seiler 2004 should be cited (see above H-stt) --Historiograf 16:08, 30 December 2007 (UTC)

As Historiograf likes the Seilercitation I now suggest:

=== Germany ===
OK Reproduction photography is not protected by copyright in Germany, but there has been discussions whether the lesser protection of a Lichtbild according to §72 UrhG applies. The highest federal court consistently decides that even a Lichtbild demands a “minimum of intellectual merit” (BGH, 8. November 1989, GRUR 1990, 669ff. – "Bibelreproduktion"), so David Seiler, laywer and influencial author on copyright of photography in Germany, concludes: “... the prevailing opinion assumes that reproduction photography is neither protected by copyright nor enjoys protection as Lichtbild” (David Seiler, JurPC Web-Dok. 251/2004, para 13)

Any statements? --h-stt !? 17:28, 30 December 2007 (UTC)

I agree --Historiograf 14:19, 31 December 2007 (UTC)

Seems to have sense. Unprotected on probation. If someone continues the edit-war, there are some nice User-Block possibilitys. ^{__ ABF __} ϑ 14:06, 1 January 2008 (UTC)

Exchanged for OK with the text above. Hope this is resolved now. --h-stt !? 19:57, 1 January 2008 (UTC)

Norway

I suggest that we remove the entry on Norway, as we do not care about it (Commons:Deletion requests/Images of Jorunn (uploaders request)). Kjetil r 02:16, 30 December 2007 (UTC)

Italy

I believe that we can add this for Italian situation:

OK before 2004. Reproduction photography is protected by copyright in Italy, but this right subsists until 20 years have elapsed from the year in which the picture was produced. Article 87, Chapter V, Rights relating to photographs: «[... ] reproductions of works of graphic art [...] shall be considered to be photographs for the purposes of the application of the provisions of this Chapter.» Article 92, Chapter V: «The exclusive right in respect of photographs shall continue for twenty years from the making of the photograph.»

But, please, read also this comment, from Village pump: "Furthermore, the page I linked to, furiously debates about the all-Italian problem ot the "Legge Urbani" (approved by Berlsconi, who not by chance is the biggest publisher in Italy, and owns the most important art publishers in Italy, which "by chance" won that monopoly...), that actually gave the legal right to the "sovraintendenze" (state offices devoted to caring about art objects and buildings) to grant a monopoly of exploitation to a publisher concerning the images of any object under their tutele, even if this object be in the Public Domain. This creates clashes with International copyright laws, but it is a valid law in Italy until it is tested in a court. Wikipedia Italy already received two warnings from the sopraintendenze of Rome and Florence asking for removal of ALL object under their tutele, which include, for instance, Michelangelo's David & re.--User:G.dallorto 14:06, 24 December 2007 (UTC)"

Thoughts?--Trixt 02:39, 11 January 2008 (UTC)

Grayscale images

Are grayscale images of the original in colours considered as PD-Art? --Alex:D 00:58, 19 January 2008 (UTC)

That will depend. If it's a photograph taken from a distance it may be protected as described on this page (depending on country). If it's just a black and white scan or photocopy of a PD original it will be PD in all countries.--MichaelMaggs 07:47, 19 January 2008 (UTC)

Romania

The copyright law states that new copyright is granted to "any changes to an artistic work which require creative intellectual work" and that "non-essential changes do not extend the term of protection of a work or of a collection". What does this mean? Bogdan 12:52, 1 February 2008 (UTC)

This means OK in my IANAL opinion. A.J. 15:53, 1 February 2008 (UTC)

Bridgeman...

I've reverted the change made by User:Historiograf again. Reasons:

1. There's a subtle difference between "should be considered public domain" and "are in the public domain".
2. Erik should maybe consult with Mike before making statements on legal topics. And he should maybe familiarize himself with a project's policies before commenting.
3. I distinctly remember an e-mail from Jimbo in which he said that Bridgeman should be applied with care.
4. Our policy for PD works is clearly that a work must be PD in the source country and in the U.S. If someone wants to change that policy, discuss and build consensus first. The "PD in the U.S." part is non-negotiable. Anyway, there's no need to rush.
5. The change was caused by this contentious deletion request, which hasn't even been resolved yet. Histo announced that DR in a multitude of places ([8], [9], [10], [11]). At the very least let this request arrive at a well-founded conclusion, and then see whether we should amend our policies as a result.

Sorry for posting my reasoning only now (more than an hour after my revert): I got interrupted in real life. Some further thoughts:

• Even if I agree with Erik's statement (such reproductions should be PD), it appears to be at odds with the actual situation in the UK. I don't know UK law good enough to know when and under what circumstances "sweat of the brow" would give rise to a copyright on something we'd normally treat as a plain reproduction ineligible to copyright, but it seems to me that there are some knowledgeable people participating in that deletion request, and I'm confident that they can hash this one out.
• Overly broad application of Bridgeman to non-U.S. works only exposes us to complaints (witness that deletion request...) and ultimately will give us a bad reputation. Rashly dismissing claims that appear to have some foundation is not the way to go. Quite often we do take a stand and do keep works as "PD" even if someone claims to have a copyright on them. We'll just have to get to grips with the legal situation in the UK. Panic mongering and claiming "victory for the copyfraud lobby" is uncalled for, especially when nothing has been decided yet.
• If the UK law really would make the images in that deletion request be copyrighted in the UK, and we chose to ignore that, where would we stop? Would we also ignore the publication right, if it made an image copyrighted in the EU? Would we also ignore other countries' idiosyncratic laws? (Always assuming that the other country is the non-U.S. source country of the image. Of course we ignore the copyright laws of third countries that are neither the U.S. nor the source country.)

Lupo 10:15, 7 February 2008 (UTC)

tracings

What about true-as-possible tracings? I read here in Commons help that they, like photos and scans, are not copyrightable, but which PD tag should I use? Kwamikagami 11:21, 20 February 2008 (UTC)

They would have the same license as the original would they not? /Lokal_Profil 15:08, 20 February 2008 (UTC)

Yes, I agree. --MichaelMaggs 19:47, 20 February 2008 (UTC)

The production date is unknown, probably 18th or 19th century and no later than 1859. They're inscribed tablets, copied by means of pencil rubbings and then tracing the rubbings. But they aren't photographs, and the PD-Art tag makes explicit mention of photos. Or should I use PD-Old? Kwamikagami 08:20, 21 February 2008 (UTC)

PD-Old is the right tag for that. --MichaelMaggs 15:27, 13 April 2008 (UTC)

Combining with other licenses

“If copyright still subsists in the work of art but has been released under a free license, please use that license instead of the {{PD-Art}} tag.”

If the original work has been released under a free license without share-alike term such as {{Attribution}}, the faithful reproduction is still protected in the UK for example, isn’t it? How is that to be tagged? --Quilbert 21:32, 29 February 2008 (UTC)

• I supopse the same rules apply as for creating derivative works. Photographer is free to chosse any license that requires attribution: CC-BY, CC-BY-SA, GFDL...A.J. 09:30, 1 March 2008 (UTC)

Museums and Galleries

I ask this question about the National Gallery of the UK, but it could easily be applied to any institution in the UK, or Australia, where I've encountered the same problems. They have a large amount of copyright expired material in their collection, but they claim that all material, including the faithful reproductions on their website, is covered by copyright [12]. Who's right? It isn't clear to me whether a scan of an image falls into the copyrighted category. Cheers, 150.203.230.27 09:37, 11 March 2008 (UTC)

I was wondering about that too, and came across http://www.artquest.org.uk/artlaw/copyright/37080.htm , which seems to conclude that the UK courts wouldn't grant copyright. It makes several references to a UK's authoritative [judicial] 2005 decision (that 'slavish' or 'servile' copying fails the 'originality' test), I'll have to ask for an exact reference to the judicial review... 82.6.44.55

The case you want is Hyperion -v- Sawkins, but it does not help much. The quote mentioned by the author of the article comes I think from Jacob, LJ, who says at para 78: "But in the end, in my opinion it is essential to consider exactly what Dr Sawkins did to decide (both qualitatively and quantitatively) whether he created an original music work within the meaning of the Act. For, whilst it is trite that mere servile copying (for instance tracing or photocopying) does not amount to originality, there are clearly forms of "copying" which do – the shorthand writer's copyright is a paradigm example which has stood since Walter v Lane [1900] AC 539". Jacob, LJ then goes on to analyse the earlier caselaw, and the textbooks, with which he agrees. These are the basis for the existing Commons advice at Commons:When to use the PD-Art tag#UK. The UK courts cannot be expected to follow the US approach set out in Bridgeman. --MichaelMaggs 20:55, 30 March 2008 (UTC)

what about inscriptions?

What about photos of texts, which are inscribed on the surfaces of 3D objects, but where the point of the photo is just to show the text? I'm thinking of rongorongo tablets, which are all quite old, and where we can't simply copy the text, because it hasn't been deciphered, so we don't know which details are required in the copy. It's art in the sense of calligraphy. The 3D objects themselves are simply wooden boards and planks. Which tag would be appropriate? Kwamikagami 09:44, 13 April 2008 (UTC)

Oh, and the woman who created the website that several of the more recent images came from claims that the photographer (a colleague of hers) does not have copyright regardless, because these artifacts are covered by the UN Declaration on the Rights of Indigenous Peoples. Supposedly photos of indigenous religious and cultural artifacts cannot be copyrighted by outsiders. —Kwamikagami 10:14, 13 April 2008 (UTC)

Does {{PD-text}} work, say for a photo of an old inscription on a tomb? Kwamikagami 01:03, 8 May 2008 (UTC)

Turkey

Please see the Turkish copyright law of 1951, with amendments up to and including 2006: the law explicitly declares "technical and scientific photographs without aesthetic merit" to be "works" (article 2(3)). Photographic works are copyrighted in Turkey until 70 years after their publication (article 29). I fear this means that photographic reproductions are copyrighted. Comments? Lupo 09:27, 1 May 2008 (UTC)

BTW, does anyone have access to older Turkish copyright laws, i.e. the 1951 law with the 1983 amendments, but without the later ones, or the original 1951 law, or the law of May 8, 1910 (1326 Islamic calendar)? I'd like to know what the copyright terms in those earlier laws were, as the current law (as amended up to 1995) states explicitly that for works published before this law entered in force, older terms from previous laws remained effective. (See [13], supplementary article 2.) Lupo 09:27, 1 May 2008 (UTC)

(repost) Italy

I believe that we can add this for Italian situation:

OK before 2004. Reproduction photography is protected by copyright in Italy, but this right subsists until 20 years have elapsed from the year in which the picture was produced. Article 87, Chapter V, Rights relating to photographs: «[... ] reproductions of works of graphic art [...] shall be considered to be photographs for the purposes of the application of the provisions of this Chapter.» Article 92, Chapter V: «The exclusive right in respect of photographs shall continue for twenty years from the making of the photograph.»--Trixt 18:16, 1 May 2008 (UTC)

Photos of paintings from a UK location

As I understand it, any photos of paintings in a UK location cannot use PD-Art. I guess there may be rare cases where the photograph was taken in the US while a painting is on tour, but most likely the majority of the photos of UK paintings on Commons were taken in the UK. Many of these uploaded photos use either PD-Art or PD-Old. Do all these photos have to be deleted unless a license is obtained from the copyright holder? --84.226.73.67 07:51, 15 May 2008 (UTC)

Yes, I think so.--Trixt 22:30, 24 May 2008 (UTC)

See discussion below. Kwamikagami 07:17, 26 May 2008 (UTC)

UK - Call for revision of our policy

Hi all, I ask to revise our policy on PD-Art in the UK, based on the following quotation:

"Take the simplest case of artistic copyright, a painting or a photograph. It takes great skill, judgment and labour to produce a good copy by painting or to produce an enlarged photograph from a positive print, but no one would reasonably contend that the copy painting or enlargement was an "original" artistic work in which the copier is entitled to claim copyright. Skill, labour or judgment merely in the process of copying cannot confer originality. In this connection some reliance was placed on a passage from the judgment of Whitford J in LB (Plastics) Ltd v Swish Products Ltd (1979) RPC 55l, 568 - 569, where he expressed the opinion that a drawing of a three-dimensional prototype, not itself produced from the drawing and not being a work of artistic craftsmanship, would qualify as an original work. That may well be right, for there is no more reason for denying originality to the depiction of a three-dimensional prototype than there is for denying originality to the depiction in two-dimensional form of any other physical object. It by no means follows, however, that that which is an exact and literal reproduction in two-dimensional form of an existing two-dimensional work becomes an original work simply because the process of copying it involves the application of skill and labour. There must in addition be some element of material alteration or embellishment which suffices to make the totality of the work an original work. Of course, even a relatively small alteration or addition quantitatively may, if material, suffice to convert that which is substantially copied from an earlier work into an original work. Whether it does so or not is a question of degree having regard to the quality rather than the quantity of the addition. But copying, per se, however much skill or labour may be devoted to the process, cannot make an original work. A well executed tracing is the result of much labour and skill but remains what it is, a tracing."

Lord Oliver giving the opinion of the Board in Interlego AG v Tyco Industries Inc (1989) AC 217 at 258 (quoted from: http://www.bailii.org/ew/cases/EWCA/Civ/1997/2429.html, as the verdict itself seems not to be online)

This is by my understanding the most recent precedent in UK-judicatur and binding under their case law. Even the UK-IPO says so on their own official website: http://www.ipo.gov.uk/copy/c-applies/c-original.htm. I believe we all got UK law completely wrong in this regard, and I call everyone familiar with UK-law to give his or her opinion on a revision of our policy. --h-stt !? 06:59, 26 May 2008 (UTC)

The policy was drafted very much with that case in mind, and the quote you give is very well known to UK specialists. Unfortunately, it does not support any suggestion that the rule set out in the US case of Bridgeman would be applied in the UK where the required level of originality is very much lower than in the US. Lord Oliver was referring there only to the case of exact copying, eg by tracing. A photograph taken from a distance is an entirerly different beast as originality will normally be generated by choice of lighting, lens and filters. I know of not a single practitioners' copyright manual in the UK that suggests that a photograph taken from afar of a work of art would not be copyright-protected. I do understand that that conclusion may be difficult to accept, as it at first sight seems so obviously "wrong", but I assure you that we do have the legal position correct.

Actually, the Interlego v Tyco case is more relevant to the issue of how much work does a scan or photocopy need to have done to it in order to be copyright-protected. You can read more about that on Commons:When to use the PD-scan tag, where that case is cited. --MichaelMaggs 19:53, 10 June 2008 (UTC)

Again: "It takes great skill, judgment and labour to produce a good copy by painting [...], but no one would reasonably contend that the copy painting [...] was an "original" artistic work in which the copier is entitled to claim copyright." If, according to Lord Oliver, copying a painting by painting(!) a copy does not create an original work and is therefore not protected by copyright under UK law, reproduction by photography can't possibly be original. If our policy was drafted with this case in mind, those who did it, got the meaning wrong. And it's time to revise it. Photographic reproduction is not protected by copyright in the UK. --h-stt !? 11:19, 14 June 2008 (UTC)

It is simply not the case that "reproduction by photography can't possibly be original". Your view that those who drafted the Commons policy "got the meaning wrong" appears to be based entirely on your own personal interpretation of a single sentence, quoted out of context, from a case that does not relate to photography at all. Given your unshakeable certainty as to what the law is (should be), maybe nothing will satisfy you, but for what it's worth I quote what the principal practitioner's text, Copinger & Skone James, has to say on this:

In terms of what is original for the purpose of determining whether copyright subsists in a photograph, the requirement of originality is low and may be satisfied by little more than the opportunistic pointing of the camera and the pressing of the shutter button. There seems to be no reason of principle why there should be any distinction between the photograph which is the result of such a process and a photograph which is intended to reproduce a work of art, such as a painting or another photograph.

--MichaelMaggs (talk) 15:04, 14 June 2008 (UTC)

I'm gonna check this in Tuesday, when I have access to a library with "Copinger and Skone James on copyright". But from your quotation they only give their own opinion, which is in contradiction with Lord Oliver. And when the authors of a legal treatise are in contradiction with the Law Lords, I'll gonna side with the Law Lords. --h-stt !? 17:31, 14 June 2008 (UTC)

Do you think that the authors of Copinger and Skone James are unaware of Interlego? They discuss it at length, as they do the (different) caselaw which has shown over many years that photographs are virtually always copyright-protected in the UK. I will say again: Interlego is not concerned with photographic copyright. --MichaelMaggs (talk) 21:35, 22 June 2008 (UTC)

Those following this discussion may be interested in a parallel thread at Commons:Deletion requests/Image:Edward VI Scrots c1550.jpg. - PKM (talk) 21:18, 22 June 2008 (UTC)

By now I checked Copinger & Skone James 15th Edition, 2005 as well as the most recent literature cited there.

• S & SJ are very short on the issue of originality in reproducing a work of art in the public domain. The quote above is essentially everything material, besides that they merely cite Lord Oliver in Interlego and Bridgeman and correctly call Lord Olivers remarks an obiter, that is not part of the reasoning in the actual case. The footnotes of C &SJ showed that there was a (short) debate in UK legal circles about Bridgeman and I looked into that:
• Kevin Garnett Q.C. wrote in E.I.P.R. 2000 p.229 specifically on the issue and concluded that "the reasoning in Bridgeman was flawed". He strongly plays the "skill and labour" card as well as the idea that photography was always about copying something from nature, from a build still life, an arrangement of persons in the studio and he sees no difference when copying a piece of art. To support his position he cites a number of cases looking back as far as 1869 (Graves' Case) and relied most strongly on Walter v. Lane [1900] A. C. 539.
• Ronan Deazley, Queen's University, Belfast answered on Garnett in E.I.P.R. 2001 p179 and found that Garnetts relying on the cases he leans on "to decide the question of whether exact photographic reproductions of paintings in the public domain are copyright (sic!) is misguided." He points out that neither case Garret refers to discusses the matter of originality. He found Geographica Ltd v. G. W. Bacon & Co. Ltd in 1914, where photography was used to reproduce ink drawn maps and the court decided that "photography was only part of the process of multiplying copies" and "the copyright in question lay in those hand-drawn maps and not in the photographic reproductions of those maps." In the latest case before his article, Antiquesportfolio.com plc v. Rodney Fitch & Co (July 2000) the court awarded photographs of jugs, candelabras and a sofa protection by copyright because "The positioning of the object (unless it is a sphere), the angle at which it is taken, the lighting and the focus, and matters such as that, could all be matters of aesthetic or even commercial judgment, albeit in most cases at a very basic level", thus relying specifically on 3-D aspects. He goes on, discussing the use of copyright on photographic reproduction of art in the public domain by the holders of those works of art to prolong their control over the artistic works beyond the terms of copyright and concludes: "Should Bridgeman come to be decided before the U.K. courts, it is to be hoped that the line taken would follow that of Woodfall J., Lord Oliver and Kaplan J., rather than Blackburn J. and Neuberger J. Lord Oliver's assertion that 'skill, labour or judgment merely in the process of copying cannot confer originality' appears both sensible and correct."
• 2004 Christina Michalos, MA, LLB, Barrister, published the so far latest book on copyright and related issues with regard to photography I could find (The Law of Photography and Digital Images, London, Sweet & Maxwell, 2004). She dedicated a sub chapter of more then five pages specifically to the issue of photographic reproduction of works of art in the public domain and opened that with stating the issue at hand "is presently an open question in English law." She quotes and explains Bridgeman extensively and has found another US case from 2000 where copyright was awarded for the photography of mirrored picture frames (SHL Imaging Inc v Artisan House) as the photos met the required originality. While relying heavy on that latest case, she comes to the conclusion that "professional photographs of 2-D works are likely to require sufficient skill for originality to subsist. [...] Accordingly it is submitted that Bridgeman in so far as it expresses an opinion as to the position in English law is incorrect."

Discussion: I found SHL Imaging Inc v Artisan House at Lexis Nexis and frankly I'm surprised by Michalos use of this decision with regard to photography of 2-D works of art.

The photo shoot spanned four days at Interior's factory. (Lindner Aff. P 4.) Assisted by his employee Ersellia Ferron ("Ferron"), Lindner arranged both the lighting [**4] and staging of the frames. Instead [*304] of using "copy lighting" (two lights set up at 45 degree angles in front of the object being photographed), Lindner selected a single light source with a reflector in order to "fill out the shadows (but not eliminate them) to give a chiaroscuro effect that would wrap around the [frame] and give it depth." (Lindner Aff. P 17.) While Munn asserts that he "instructed Lindner precisely how [he] wanted the photographs taken, including the positioning and angle and appropriate lighting," he provides no specifics. (Munn Aff. P 12.) Lindner and Ferron alone set up the lighting, hung the frames and took the photographs, while Munn remained in his office. (Lindner Aff. P 13; Ferron Dep. at 16.)

Photographing the frames was complicated by the reflection in the mirrors of several frames. (Lindner Aff. P 17.) Lindner overcame this obstacle by creating a unique lighting design so that the mirrors would not reflect any part of the factory or the photographer. (Lindner Aff. P 17.) The lighting design also enhanced the luster of each frame's gilt. (Lindner Aff. P 17.) As the shoot proceeded, Lindner also took Polaroid instant photographs "to check [the] lighting, [**5] angles and composition." (Lindner Aff. P 12.) Munn claims that he ordered the Polaroids to ensure Lindner was following his instructions. (Munn Reply Aff. P 12.)

Obviously SHL Imaging Inc v Artisan House is not about 2-D reproduction, but about shadows, depth, positioning, reflections and luster of frames gilt. It is not about faithful reproduction but about creating appealing images for a catalogue. Which devalues all her conclusion drawn from that case.

Copinger & Skone James is highly problematic. Because there is of course a huge reason of principle why there should be difference between "the opportunistic pointing of the camera and the pressing of the shutter button" on one side and "a photograph which is intended to reproduce a work of art" with regard to originality, because by pointing and clicking the photographer defines the motive by deciding the place and the time. All that is irrelevant in reproducing an existing 2-D painting.

I'll stick with Michalos opening: Copyright of photographic reproduction of 2-D art in the public domain "is presently an open question in English law." And that means we have to decide on our own. With Deazley there is a published professional opinion that points to the lack of discussion of originality in all the primary cases, the promoters of copyright cite. In the absence of a decision by U.K. courts on the issue, I suggest we side with freedom of public domain works of art and open the application of {{PD-Art}} to images from the UK. --h-stt !? 14:46, 23 June 2008 (UTC)

Nice research. I think you have picked up most of the relevant opinions and case law, at least that I'm aware of, and it comes down to how one evaluates them. I won't have time to give this much attention this week, but will try to put some comments together sometime next. --MichaelMaggs (talk) 19:05, 24 June 2008 (UTC)

Take your time. You had to wait for me as well, because I have only guest access to our library on international copyright law. --h-stt !? 06:52, 25 June 2008 (UTC)--h-stt !? 06:52, 25 June 2008 (UTC)

---

Reply to call for revision

By way of initial comment, it is not legitimate (as I think you try to do – apologies if I have misunderstood you) to dismiss the opinions of UK copyright law professionals as being those of “the promoters of copyright”. The writers quoted below are the most influential of UK copyright specialists and they are not promoting anything: they are simply setting out the law as they see it. Let's consider the sources one by one and see where it takes us.

1. Interlego v Tyco

You rely on Lord Oliver's statement "But copying, per se, however much skill or labour may be devoted to the process, cannot make an original work". I have argued that he was not talking about photographic copyright, and that it has long been understood that in UK law almost any photograph where the photographer has to expend even a small level of skill and labour is entitled to copyright protection. This point has been dealt with in the next source. We also need to bear in mind that that statement was obiter, in other words did not form part of the legal basis for the final decision and hence under English common law does not bind any later court.

2. Laddie, Precott and Vitoria, 2nd edn

The authors of this multi-volume tome say, on p216 of volume 1, in response to that very quote: "However, it is respectfully submitted that those remarks were no doubt conditioned by the environment and that, while valid if confined to the subject matter before the Privy Council , are stated too broadly. The Privy Council was there considering fairly simple technical drawings [specifically, line-drawings of Lego bricks - MM]. This is a rather special subject matter".

Laddie considers it special since "any competent draftsman (perhaps, any conscientious amateur) who sets out to reproduce it will almost certainly succeed in the end, because of the mathematical precision of the lines and measurements". That is contrasted with, say, a painting where "it is obvious that very few persons, if any, are capable of making an exact replica". But even a poorly-executed copy would be entitled to copyright as long as some skill and labour was involved. Laddie then argues that if a copier "renders the original with all the skill of a Salvador Dali, is he to be denied copyright when a mere dauber is not?" The difference between technical drawing and painting is that "in the latter there is room for individual interpretation even when faithful reproduction is sought to be attempted while in the former there is not".

The same arguments would apply to an attempted faithful reproduction by a photographer, and indeed Laddie uses the photographic analogy to bolster his painting argument: "Further, a photographer who carefully took a photograph of an original painting might get a copyright and it is rather hard to see why a copy of the same degree of fidelity, if rendered by an artist of the calibre forementioned, would not be copyright." The use of the word "might" could perhaps signify some uncertainty, but it appears not since in another example of a painter who has copied some ancient paintings, since lost, Laddie comments: "If it had been possible to photograph these works nobody would deny that the photographer would get a copyright and it is somewhat hard to see why the painter who renders a like service should be worse off".

3. Copinger & Skone James 15th Edition

I think we agree that the authors of this text clearly believe there would be copyright in a faithful-reproduction photograph:

In terms of what is original for the purpose of determining whether copyright subsists in a photograph, the requirement of originality is low and may be satisfied by little more than the opportunistic pointing of the camera and the pressing of the shutter button. There seems to be no reason of principle why there should be any distinction between the photograph which is the result of such a process and a photograph which is intended to reproduce a work of art, such as a painting or another photograph.

You argue above that there is a huge difference between the creation of a faithful-reproduction photograph and "the opportunistic pointing of the camera and the pressing of the shutter button". I agree: the amount of skill and labour required in the former case is much greater than in the latter.

4. Michalos, The Law of Photography and Digital Images, 2004

I have this book on my shelf. While Michalos does indeed start her discussion of photographs of 2D works of art with the statement that this "is presently an open question in English law", all she means by that is that in 2004 there was no clear decided case. It does not mean that she is herself uncertain, and indeed she spends more than five pages explaining why in her view a UK court would not follow the reasoning in Bridgeman. You have criticised the use she makes of SHL Imaging Inc v Artisan House to challenge Bridegman as being binding under US law. Even you are right on that, it makes no difference since she does not and cannot use the SHL case to determine what the UK courts would say. Both Bridgeman and SHL are US cases and neither would influence a UK court.

Michalos concludes her review by saying: "Accordingly it is submitted that Bridgeman in so far as it expresses an opinion as to the position in English law is incorrect". That conclusion does not in any way rely on her opinion of the US SHL case.

5. Garnett Q.C. in E.I.P.R. 2000

Garnet strongly believes that there is copyright in a faithful-reproduction photograph, basing his reasoning partly on the older case of Walter v. Lane.

6. Deazley in E.I.P.R. 2001

Deazley disagrees with Garnett and suggests that neither case Garret refers to discusses the matter of originality. So, here, we do have a dissenting opinion, but that has to be read in the light of later developments in Hyperion Records v Sawkins, CA 2005. The Court of Appeal said there that, contrary to Deazley's opinion, that the House of Lords case Walter v. Lane does remain good law on the essential elements of originality.

7. Hyperion Records v Sawkin

In this 2005 Court of Appeal case [14], Dr Sawkins, a musicologist, sued Hyperion Records for selling CDs of the music of Lalande (died 1726). Although Lalande's original music was of course out of copyright, Dr Sawkins argued that it was a copyright infringement for the performers to be using his own "performing edition" of the work. In creating the performing edition he had spent about 300 hours in making corrections and additions in order to make the original music playable, including adding a ground bass and recreating a missing viola part. The question was, was this enough originality to generate a new copyright? The court held that it was.

Although the facts in this case need not worry us, what is important is the line the Court of Appeal took on originality. In para 33-34, the court held that "The essential elements of originality were expounded by the House of Lords over a century ago in Water v Lane [1900] AC 539." In that case, it was held that copyright subsisted in shorthand-writers' reports of public speeches that were recorded, transcribed, corrected and published as verbatim reports of the original speeches. "The reports were held to be "original" literary works, even though the intention of the reporters was to produce as accurate a report as possible of a work of which they were not the authors" [para 34]. Water v Lane" remains good law" [para 33].

At para 81, Lord Justice Jacob quotes in full a long extract from Laddie, Prescott and Vitoria, mentioned in part above, starting "However, it is respectfully submitted that the remarks made in Interlego were no doubt conditioned by the environment and that, while valid if confined to the subject matter before the Privy Council , are stated too broadly. The Privy Council was there considering fairly simple technical drawings. This is a rather special subject matter".

Lord Jacob [at para 82] points out that the authors of Copinger & Skone James likewise take the view that that passage should be read as confirmed.

In para 83, he says "I agree with the textbooks. I do not think the [Interlego] comment as a generality is consistent with Walter v Lane. I think the true position is that one has to consider the extent to which the "copyist" is a mere copyist - merely performing a mechanical function. The more that is so the less is his contribution likely to be taken as "original"". He then quotes with approval a statement of Prof Jane Ginsberg (see below).

Finally, he says "In the end the question is one of degree - how much skill, labour and judgement in the making of the copy is that of the creator of that copy? Both individual creative input and sweat of the brow may be involved and will be factors in the final determination." It is even clear that - at least for musical works - copyright can subsist even if the copy is note-for-note identical with an out of copyright original, provided that sufficient skill and labour went into the creation of the copy. At para 84, Lord Justice Jacobs refers to an incident in which the young Mozart, having hear Allegri's Miserere for the first time, wrote it out from memory. He said "Of course, Mozart wrote no new music but it would be logically impossible to deny him copyright in his transcription of the music but grant it to a shorthand write for his transcription of the spoken word."

This decision clarifies what is meant by "original" in UK copyright law and makes it clear that - contrary to what is often supposed - originality is not determined merely by comparing the original with the copy and asking "what is different?" Indeed, Lord Justice Jacobs makes it quite clear that there can be originality even if nothing at all is different. Rather, one has to ask [para 85] "whether the [copy] is sufficiently original in terms of the skill and labour used to create it?"

Purely mechanical copying requiring no skill and little labour, such as a raw scan or photocopy, will not be enough, but a faithful-reproduction photograph does require considerable labour and skill to make, and accordingly does acquire copyright. Originality does not require a work to be unique or novel.

8. Prof Jane Ginsberg, The concept of Authorship in Comparative Copyright Law

This paper can be found online here. The passage quoted with explicit approval by Lord Justice Jacobs in Hyperion Records v Sawkin appears on p21, and reads:

[R]eproductions requiring great talent and technical skills may qualify as protectable works of authorship, even if they are copies of pre-existing works. This would be the case for photographic and other high-quality replicas of works of art.

She points out in a footnote that copyright protection of photographic reproductions of artworks goes back at least to the 19th century, and was specifically mentioned in the 1885 draft of the Berne Convention.

Conclusion

I know that to many editors it will be surprising to learn that copyright can subsist in a photograph of a 2D work of art, but that has long been the case and applies (for various reasons) in quite a few countries. So far as the Common law countries are concerned, it is the US that is out of step in denying 2D photographic copyright in Bridgeman, not the other way round.

There can I think be little doubt in the light of the above that our existing policy on UK law is correct. Every one of the cases and professional opinions listed above supports that, with the exception of Deazley whose 2001 view has since been disapproved by the Court of Appeal. It is important to bear in mind that Commons policy is based on our best understanding of the relevant law, and not what we think we might be able to get away with.

Like you, I would prefer for the sake of Commons that the law was not quite as strict as it is, but we have to live with the law as we find it. --MichaelMaggs (talk) 22:05, 5 July 2008 (UTC)

---

Frankly and very short because of real life constraints: After reviewing Sawkins v Hyperion Records Ltd I don't believe it is applicable to our question at hand and see no reason to believe that the test of originality there means anything for reproduction of 2D-images. In Sawkins v Hyperion Records Ltd a musicologist created the basso continuo to a given piece of music, reconstructed missing parts and transformed verbal commands on the sheet into todays musical notation. I can't believe you think this verdict to be appropriate to discuss reproduction of 2D works of art by photography. --h-stt !? 12:52, 24 July 2008 (UTC)

Responses

This essay is being discussed on Commons:Deletion requests/National Portrait Gallery images (first set). I came here to read it, and drafted a long reply: here.

Cheers! Geo Swan (talk) 08:17, 24 July 2008 (UTC)

According to these guidelines, all National Portrait Gallery images must be deleted from the Commons

Just one example of the hundreds of portraits which must be deleted from Commons according to these guidelines.

The National Portrait Gallery in London maintains exclusive monopoly on all images of their paintings. They strictly forbid any unapproved photography or reproduction and strongly assert copyright on their expensive reproduction prints. Since the National Portrait Gallery houses most of the important portraits of British historical figures, it appears that a large portion of the history of Britain must be effectively wiped off the Commons. We're talking about roughly 100,000(!) portraits, at least 500 of which are represented on the Commons (and those are just the ones that state they are from the Gallery). Shall I begin nominating them all for speedy deletion? Kaldari (talk) 19:46, 17 July 2008 (UTC)

Yes, I fear that images that have been grabbed from their website must go. A version of the Shakespeare portrait was deleted a while ago (Commons:Deletion requests/Image:Shakespeare.jpg). The National Gallery is listed in Commons:Bad sources and the National Portrait Gallery should be. --MichaelMaggs (talk) 21:48, 17 July 2008 (UTC)

Is there any way that we can warn all of the other Wikimedia projects before we delete them all? These images are used extensively across Wikipedia, Wikisource, and Wikiquote projects of various languages. Deleting them all without warning will likely bring throngs of editors thirsty for blood. I know of at least 3 featured biography articles on the English Wikipedia that will no longer have portrait images, for example. Kaldari (talk) 22:13, 17 July 2008 (UTC)

For that reason I would not suggest speedy deleting them, but rather opening a mass deletion request. I'll see if over the next few days I can get someone with a bot to help with all the tagging. Each image needs its own tag if Wiki users are to be properly warned. --MichaelMaggs (talk) 22:19, 17 July 2008 (UTC)

FWIW, I emailed Brad Patrick about this exact issue back in 2006. His only response was "We have already tusseled [referring to the NPG]... We are trying hard not to be in their crosshairs, but British copyright law on this is stupid." Not sure what the "tussling" part means exactly. Kaldari (talk) 22:28, 17 July 2008 (UTC)

Would it be possible to move all of these images to the English Wikipedia before deleting them? This seems to have already been done with some of these images. Like this one for example. The policies on the English Wikipedia seem to only require that the material is public domain in the United States (although how legal that is is anyone's guess). Kaldari (talk) 22:59, 17 July 2008 (UTC)

I have nominated the first set for deletion. Kaldari (talk) 18:46, 22 July 2008 (UTC)

The position of the Wikimedia Foundation is quite clear: "[W]e've consistently held that faithful reproductions of two-dimensional public domain works which are nothing more than reproductions should be considered public domain for licensing purposes" (Erik Moeller at foundation-l). This was never revoced --Histo (talk) 20:29, 22 July 2008 (UTC)

• Unfortunately, that does not help, even if Moeller was in fact intending to override longstanding Commons policy (which I doubt). Firstly, if you read the thread you will see that the comment was made in response to the closure of a DR relating to Darwin Online images as "delete". That DR has since been re-opened and closed as "keep", and Commons policy has been changed accordingly. Secondly, the previous posting to which he was replying quoted Lord Oliver in Interlego as saying "But copying, per se, however much skill and labour may be devoted to the process cannot make an original work". As explained on this very page, above, at #Reply to call for revision, that quote has since been explicitly disapproved by the Court of Appeal in the later Sawkins case. It is not wrong, but it applies in narrow circumstances only such as where an engineering line-drawing has been copied. The Court of Appeal has held that it does not apply in cases such as the present where the photographer has to apply significant skill and labour in setting up lighting, filters and so on. --MichaelMaggs (talk) 21:21, 22 July 2008 (UTC)

Ps is Histo the same person as Historiograf? --MichaelMaggs (talk) 21:39, 22 July 2008 (UTC)

From his edit history I'd think so. I find the use of two accounts in a deletion request problematic, though he only voted with one and the link between the two is apparent so standalone it's not a big issue (civility might be another matter as he just called me incompetent on the german language wiki, but then he has a reputation for incivility.--Caranorn (talk) 22:04, 22 July 2008 (UTC)

Why are all of the keep !votes from Germans, by the way? Has there been canvasing on de.wiki? ЭLСОВВОLД _talk 22:30, 22 July 2008 (UTC)

Yes, it's been brought up at de:Wikipedia:Urheberrechtsfragen, possibly also other pages... It's actually how I learned about this issue myself, but unlike some others I seem to have taken the time to read the arguments and various other relevant posts.--Caranorn (talk) 22:34, 22 July 2008 (UTC)

Actually let me clarify that. The original post on :de was not to bring others to vote here, but rather a question about uploading the images proposed for deletion here to :de. I have no reason to believe de:Benutzer:Tohma acted in bad faith. Subsequent posts are another issue entirely.--Caranorn (talk) 22:40, 22 July 2008 (UTC)

The Commons do have a really bad reputation on de.wikipedia, and discussions like these prove that right, I'm afraid. Since any votes and opinions not coming from the U.S. or UK are often enough dismissed right away here, many very active German users have chosen not to be active here at all. I haven't (yet), and I guess I am even pretty high on the edit count list here, if there is any, but life here isn't really easy. However, as soon as the encyclopedic work on de.wikipedia and the mission of free knowledge is severley threatened here (such as by deleting images that are in the PD pretty much everywhere including the US and most of the EU), these users will come here and voice their opinion, and rightly so. Since, as I said, many active Wikipedians/Wikimedians are not active in administrative pages her on a daily basis (and may not be as fluent in English as others), this may require the one or other hint at the German projects. Encouraging people to vote is a right in every democracy. Dismissing this as "canvasing" is unacceptable. --AndreasPraefcke (talk) 13:49, 23 July 2008 (UTC)

First of all, Commons is not a democracy (and Wikipedia neither). Second, what part of Elcobbola's question makes you think that he was "dismissing" opinions of users from the German Wikipedia? Quite the contrary: any comments on the copyright status of these images is most welcome, though plain !votes without any comment are not very useful. Pruneau^talk 15:10, 23 July 2008 (UTC)

To answer your second question: The junction of the question regarding the large amount of keep-votes from Germany and giving an answer to this question with the indirect question wether there is canvasing going on in de.wiki gives the impression that the opinions from de.wiki are beeing dissmissed as - let me call it: vote-spam. As Andreas has explained this topic is beeing discussed on de.wiki as enthusiastically as it is here. But not all of those discussing it there can express their opinion as eloquently here as they would wish. So to dismiss these opinions (votes as you call them ) as not very useful, is not doing justice to these concerned Wikipedians. --Wuselig (talk) 15:51, 23 July 2008 (UTC)

Please read comments critically. It was a simple inquiry precipitated by an unusually high participation rate of German editors in a short period of time. It wasn't an assertion, only a question; the answer was no, so there is no issue. Any other (perceived) "impressions" are solely your own. Only comments that fail to articulate reasonable consideration of the relevant facts will be discounted (declarations of "Commons policiy is crap" [sic], for example, may well fall into that category). ЭLСОВВОLД _talk 16:00, 23 July 2008 (UTC)

My opinion that Commons policy on this topic is just crap is reasonable and comes after years of experience here, as an uploader of thousands and thousands of images (own and "found" ones) and as an administrator. Any discussion of a deletion request has to be a discussion whether an image should be kept or not. If you know already what to do, why start a discussion? Of course, according to the current policy (or rather the current interpretation of Wikimedia policy of "free content" within the Commons, and pretty much solely within the Commoins), these images surely would have to be deleted. But then you could just quick-delete hundreds, maybe thousands of pictures. However, even those that think these pictures are to be deleted according to current policy have chosen to open a deletion request with discussion and all. The only point of doing that ist if one is unsure if maybe the policy could be wrong in the first place, which it is, in my not so humble opinion. Now if I say so, my opinion is totally dismissed and mocked of (by the way: blessed art thou who never committest a typo). In short: I think Wikimedia should not surrender to some of the most evil copyfraud institions in the world (i. e. those British national institutions monopolizing the Public Domain) without even being sued. Our policy is doing exactly that, so I think it is wrong. --18:44, 23 July 2008 (UTC) —Preceding unsigned comment added by AndreasPraefcke (talk • contribs)

Than we have at least this problem settled. ;-)--Wuselig (talk) 16:53, 23 July 2008 (UTC)

Aber ja! ;) ЭLСОВВОLД _talk 17:51, 23 July 2008 (UTC)

Commons takes copyright issues seriously, with the result that we often have to deal with complaints from users on other Wikis who don't like their favourite encyclopedic images being deleted (and who don't like being told they are copyright violations, even when they are). But if Commons doesn't take copyright seriously, who will? Many Wikis rely on Commons to do that for them. --MichaelMaggs (talk) 15:42, 23 July 2008 (UTC)

The National Portrait Gallery in London might "strictly forbid any unapproved photography or reproduction", but that doesn't give them any right over photographs or reproductions made without their approval. The grounds of the gallery are their realm, and they are at liberty to autorise or forbid arbitrary things whithin the limits of the law, like taking photographs; they can throw me out if they catch me ignoring their bidding; but they can't have my camera, my film, my data card, and even less so the rights on the image.

They could, in theory, sue the photographer for breaking a contract, or for trespassing. It would also be suicidally bad press for them to do so, but they could try something along these lines if they were dedicated on ridiculing themselves. But anyway, that doesn't have anything to do with copyright, nor with Commons. Rama (talk) 18:09, 23 July 2008 (UTC)

After Mike Godwin's statement this problem is obsolete and all images can be kept. --kogo (talk) 20:48, 23 July 2008 (UTC)

Seems to be that way. Perhaps we need a new image tag to reflect this. Kaldari (talk) 23:06, 23 July 2008 (UTC)

Also Jimmy Wales supports keeping this images. --kogo (talk) 07:42, 24 July 2008 (UTC)

Modifying this policy per Wikimedia Foundation statements

In light of statements by Mike Godwin and Erik Möller, would anyone object if I modify the policies here and/or create a new PD-Art tag for the particular circumstances discussed above? I have also raised the issue at Commons talk:Licensing. Kaldari (talk) 23:25, 23 July 2008 (UTC)

• There is also this statement by Jimmy Wales in his personal capacity. The WMF Board is clearly telling us that we can/should ignore UK law in this case, and I agree that the policy should now be re-written to reflect that. They are the ones that may end up being sued and I suppose they must have the final say about what they want on their servers. This position does mean, though, a re-think of another Commons policy that is often quoted: that we keep images that are demonstrably free rather than what we can get away with. Wales's statement, in particular, does appear to encourage the hosting of content that is known to infringe copyright, which I find surprising. --MichaelMaggs (talk) 06:37, 24 July 2008 (UTC)
  • There is a difference between being responsible about copyright, and the current position of only hosting works which have impenetrable copyright justifications. Nobody is suggesting that Commons should be irresponsible. At worst, they are suggesting that we be bold in facing challenging situations.
    If we are going to be bold, our policy should be all the more carefully crafted to ensure that contributors dont feel at liberty to test every boundary, and more rigor will be required in policing those boundaries.
    If we do tackle this, and I think much more discussion is needed before we do proceed, I suggest that we instigate a board where requests to host items of uncertain copyright can be discussed, so that we can clarify the copyright if possible, or decide that it is sufficiently uncertain that we should accept the content. The work could be tagged as "Copyright Uncertain", pointing the reader to the initial discussion, and how to proceed with a takedown notice. This will also ensure that the courts can see we are not flagrantly ignoring the laws.
    In cases like this, we should email the body most likely copyright holder, formally requesting that they decide whether they consider it a copyright violation to host these images. If it is their copyright, and they believe the law is on their side, let their copyright lawyers and spokespeople go on the record with that assertion. If they decide that it is undesirable for them to claim copyright, with the inevitable effect it will have, then we have affected the landscape of the copyright without the need for law. If they want to tussle, let the tussle begin in the newspapers rather than in the courts, as they can back out of a bad position easier if the matter hasnt entered the courts. If they back down while in the courts, very little will have changed. If they do not reply to a formal request from Wikimedia Foundation, the courts may look favourably on our attempts to clarify the matter. John Vandenberg ^(chat) 08:34, 24 July 2008 (UTC)
• I think the most coherent way ahead is to back down from the requirement of images being free in their source country and require only that they be free under US law. Haukurth (talk) 08:39, 24 July 2008 (UTC)
  • Yes, I agree. The obvious way ahead would be to change policy at least for images that would be PD in the US under Bridgeman to say that only US law applies. It seems to work for the English Wikipedia. --MichaelMaggs (talk) 09:27, 24 July 2008 (UTC)
    • I slightly disagree with your interpretation. When I read Möller's and Godwin's statements, I don't understand that we should ignore UK law, but rather that they believe that these images are PD everywhere, including the UK, or at least that the case for these images being PD everywhere is strong enough. I don't see anything suggesting that we ignore the law of the source country. The main change of policy that this implies is that {{PD-art}} can now be used whatever the country of origin, according to WMF. Pruneau^talk 10:09, 24 July 2008 (UTC)
      • Not quite sure I quite follow you, sorry. Saying that {{PD-art}} can now be used whatever the country of origin automatically implies that the law of any country which has a broader definition of what can be copyright (eg UK, Spain, the Nordic countries) is to be ignored. --MichaelMaggs (talk) 10:23, 24 July 2008 (UTC)
      • Well, what Godwin said is this: "I think the National Portrait Gallery may be afraid to put their claims to the test in actual litigation, since doing so would be a straightforward assault on the public domain, and could raise international enforcement issues besides. While I respect the Commons community's engagement in the issue of keeping Commons clear from copyright problems, it should be stressed that it is unclear whether the Foundation currently has any legal problems as a result of the public-domain paintings in question appearing on Commons." Translating this from lawyer-speak to the vernacular I get: "We're in the US so we're probably beyond the reach of those bastards. Screw them." So I don't think he's saying that 2D reproductions are free everywhere but that they are under US law and that's good enough for him. Haukurth (talk) 10:34, 24 July 2008 (UTC)
        • My problem might just be that I don't speak Lawyer. But even after reading these messages several times, I can't find where Godwin and Möller say "US law is all that matters". Nor do they specify that the images are PD in the USA: they state that the WMF position is that these images are PD, without specifying a country, which I understood as meaning "even in the UK". Pruneau^talk 13:29, 24 July 2008 (UTC)
          • When Godwin says "international enforcement issues" I think that's what he means. But I'm not a native speaker of Lawyer so I won't claim that's the only possibility. Jimbo's position is a less subtle "frack the NPG and their fracking copyright claims" which could be interpreted in various ways. Haukurth (talk) 13:41, 24 July 2008 (UTC)
            • Yes, but the "international enforcement issues" are a "besides". I would translate his words as "the NPG's copyright claim is bogus, and besides, we're probably out of their reach. Screw them." This has different implications. Pruneau^talk 14:00, 24 July 2008 (UTC)
              • True, there's a "besides" there. But his whole message is written from the point of view of possible legal risk to the Foundation. He starts by saying that the NPG has only sent "notes" rather than DMCA notices and ends by saying that there probably won't be legal problems for the Foundation. Yes, there probably won't be legal problems for the WMF but that doesn't really answer the question: Are those images in the public domain in the UK? In my view Godwin doesn't address that at all, he just says that the NPG would get bad press if they tried and "besides" they would have problems with "international enforcement issues". Haukurth (talk) 14:18, 24 July 2008 (UTC)
• Just one thing, if we change policy I think we have to be consistent. Either as currently law of source country plus US or just law of the US. We cannot be selective and use one rule for images from one country and another for images of another. It is not for us to judge whether one country's law is BS, lets leave that to the politicians (well I'm that too, but that's without mandate).--Caranorn (talk) 11:47, 24 July 2008 (UTC)

  But we do already use the “US + source country” rule selectively. For example, we allow Template:PD-AR-Photo even though these photos are not PD in the United States (as far as I know). --Kjetil_r 14:13, 24 July 2008 (UTC)

If that's true those images should be deleted immediately. There should be no situation where we actively ignore US copyright law. --MichaelMaggs (talk) 14:46, 24 July 2008 (UTC)

If I'm not mistaken, most of COM:FOP is about how Commons ignores US law on FOP in favour of other laws. Samulili (talk) 17:22, 24 July 2008 (UTC)

I don't think that's right. A US court, asked to determine the copyright status under US law of, say, a photograph of a statue taken in the UK, will not judge that issue on the hypothetical basis that the statue was actually photographed in the US. Instead, it will ask itself where the photo was taken and what the local law has to say. Since under UK law the photo is allowed, the US court will follow that determination. It is unlikely that a US court would be prepared to uphold a claim to US copyright by a foreign national against a US defendant where under the foreign national's local law no copyright action could possibly be entertained. So, an image that is free under UK law is also, in that case, truly free under US law as well. --MichaelMaggs (talk) 20:46, 24 July 2008 (UTC)

Please see a radical proposal I have made at Commons talk:Licensing#Consider policy change to apply US law only, for all Commons files.--MichaelMaggs (talk) 14:41, 24 July 2008 (UTC)

My Modest Compromise Proposal

It appears that there isn't consensus to radically change our licensing policies (even though the Foundation would apparently be tolerant of that). It also appears that there isn't consensus to delete the hundreds of historic British images that violate these licensing policies. So we are at something of an impasse. I have a modest proposal to fix the situation (at least for the time being):

• Create a new template specifically for photographs of Public Domain art from the UK, {{PD-Art-UK}}, which adequately explains the situation and it's history of discussion. It will be based on the existing {{PD-Art}} template.
• On this page (When to use the PD-Art tag), change "UK: not OK" to "UK: Inconclusive." and explain that although several cases strongly suggest that photographs of public domain art are copyrighted in the UK, until there is definitive case law stating otherwise, we will allow the use of {{PD-Art-UK}} for photographs of public domain art in the UK. This section should also include links to the statements by Erik and Mike Godwin.
• Remove the National Gallery and the National Portrait Gallery from the Bad Sources list (or add clarifying information to their entries).

This should satisfy both sides of the debate for the time being, and also allow us to easily round up all the appropriate images should a definitive case be decided in the UK or the Foundation change it's mind. Please indicate if you support or oppose this idea and why. Kaldari (talk) 21:04, 24 July 2008 (UTC)

I don't think this is a good idea. We just can't in good faith say that the legal status of the images in the UK is so uncertain that we might as well keep the images. The Foundation may be spoiling for a fight but that doesn't change the legal situation. If we do keep those we should, at the very least, keep 2D reproductive photographs from other countries as well. The legal situation in the UK isn't really any more uncertain than it is in, say, my home country. There certainly hasn't been any court case involving this in Iceland. If we change policy to explicitly allow UK reproductive images then I want to allow Icelandic reproductive images as well. Haukurth (talk) 21:26, 24 July 2008 (UTC)

As none of us are lawyers, I think we should defer to the opinion of the Foundation's legal council, which in this case believes that, in the UK specifically, the situation is not clear enough to warrant prohibiting such images. If Mike Godwin were to issue a similar statement regarding Iceland, I would support doing the same for Icelandic images. We must, however, work towards finding some kind of compromise, even if it isn't perfect. Kaldari (talk) 21:29, 24 July 2008 (UTC)

I haven't seen Godwin express any opinion on how a court case inside the UK would go. What he's said is that the NPG would get bad press if it were to sue the WMF and that it would raise "international enforcement issues", i.e. the WMF is in the US so they can't get us, neener neener. If Godwin has made an analysis of the legal situation then I would like to see it. Specifically, if he thinks he knows better than the expert opinion Michael has painstakingly collected then I'd like to see why. Haukurth (talk) 21:35, 24 July 2008 (UTC)

In his email Godwin states: "it should be stressed that it is unclear whether the Foundation currently has any legal problems as a result of the public-domain paintings in question [from the NPG] appearing on Commons." In other words, we should only enact blanket prohibitions against images when it is clearly a violation of copyright law, not when it is probably a violation of copyright law. Kaldari (talk) 21:46, 24 July 2008 (UTC)

That flies in the face of everything else. And he's still only talking about whether or not the WMF would be in trouble. He hasn't at all addressed whether reusers within the UK would be in trouble. That's what this is supposed to be about, we always knew (or thought we knew) that the WMF itself was fine. Haukurth (talk) 22:01, 24 July 2008 (UTC)

Until a Bridgeman-type case is decided in the UK, we have no way of knowing for sure whether or not reusers in the UK would be in trouble or not. Right now, however, our de facto policy is to leave these images on the Commons with no warning or explanation to potential reusers. This proposal would at least allow us to warn those users of potential issues through the use of a custom tag. Isn't that better than the situation we currently have? Kaldari (talk) 22:46, 24 July 2008 (UTC)

We don't insist on "knowing for sure" in any other case. We don't keep images which we are >90% sure are not free. Will you argue for keeping a random image if the uploader can demonstrate that there's a 10% chance that it's actually free? A 20% chance? No, we only keep images which we are reasonably sure are free - not all images which haven't been conclusively proven to be not free, that's just backwards. And, no, I think this would be an even worse situation than we currently have. Making a special exemption for one country based on nothing in particular, that's just awful. Haukurth (talk) 22:55, 24 July 2008 (UTC)

Is it more awful than deleting 500+ historically important images from the Commons? If the Foundation assures us that in this particular circumstance we can err on the side of inclusiveness, shouldn't we take advantage of that? (with appropriate warnings to reusers) Kaldari (talk) 23:57, 24 July 2008 (UTC)

I second Kaldari, as already elaborated before. --AFBorchert (talk) 21:33, 24 July 2008 (UTC)

This is the best solution I've read so far. It has my full support. It also has the advantage that if (when) this question is resolved in court, we can easily either delete all images in question, or redirect {{PD-art-UK}} to {{PD-art}}. Pruneau^talk 21:51, 24 July 2008 (UTC)

The problem with this proposal is that the WMF Board has not engaged with the UK legal situation at all: they have bypassed it by making a policy statement, even though they do not want to call it that.

There are very few countries in the world where there has been a court case exactly on all fours with Bridgeman, and it's crazy in my view to call the UK situation "inconclusive" when the Court of Appeal has specifically held that "[R]eproductions requiring great talent and technical skills may qualify as protectable works of authorship, even if they are copies of pre-existing works. This would be the case for photographic and other high-quality replicas of works of art"; and where the court has also held that "The essential elements of originality were expounded by the House of Lords over a century ago in Water v Lane [1900] AC 539." In that case, it was held that copyright subsisted in shorthand-writers' reports of public speeches that were recorded, transcribed, corrected and published as verbatim reports of the original speeches. "The reports were held to be "original" literary works, even though the intention of the reporters was to produce as accurate a report as possible of a work of which they were not the authors". [All from Sawkin].

This goes to the heart of what "originality" means under UK law and we would be fooling ourselves to expect that if a Bridegeman-type case were to come before the UK courts they would suddenly switch over to some other definition of "originality". They would not be allowed to, for one thing, as the definition set out by the Court of Appeal binds all future High court judges.

If we go down this road I would like to see the UK-tag specify that this is a matter of WMF policy, not law. --MichaelMaggs (talk) 22:04, 24 July 2008 (UTC)

Yes, that's all true, but the fact remains that no Bridegeman-type case has been decided in the UK, thus there is still room for uncertainty. Kaldari (talk) 22:37, 24 July 2008 (UTC)

That goes for many other countries as well. It makes no sense to make an exception for the UK only. I'd much rather we allowed 2D reproductions in general, with big caveats in the PD-Art template that it's only applicable in the US and a couple of other countries. Haukurth (talk) 22:49, 24 July 2008 (UTC)

The problem is that each country has it's own particular legal limbo regarding this issue, including the U.S. I agree that we should work towards including more countries, but I think we need to take it on a country-by-country basis, as there is no way that we are going to be able to get consensus to do away with the restrictions altogether (it's been tried already). Kaldari (talk) 22:59, 24 July 2008 (UTC)

What if we changed "UK: not OK" to "UK: probably not OK, but allowed for now"? Would that be better? If not, are there any changes to this proposal that would make it more acceptable? I'm trying to come up with some kind of solution that we can all agree to for now, so that our de jure and de facto policies aren't conflicting. Kaldari (talk) 22:20, 24 July 2008 (UTC)

That wording is better, but it further highlights the absurdity of making an exemption for one country. Haukurth (talk) 22:57, 24 July 2008 (UTC)

I've drafted a tentative template at User:Pruneau/PD-art-UK. Please improve it! Pruneau^talk 22:26, 24 July 2008 (UTC)

It looks good to me. Kaldari (talk) 22:32, 24 July 2008 (UTC)

I've reworded the text, to be a bit more explicit, so that it functions more as a warning (per discussion above). Kaldari (talk) 23:06, 24 July 2008 (UTC)

What do people think of this template?... Kaldari (talk) 23:12, 24 July 2008 (UTC)
User:Pruneau/PD-art-UK

Thanks, Kaldari, this template looks fine to me. --AFBorchert (talk) 06:31, 25 July 2008 (UTC)

I agree with this latest template proposal. Gestumblindi (talk) 22:19, 25 July 2008 (UTC)

UK is not enough

http://commons.wikimedia.org/wiki/Commons_talk:Licensing#UK_is_not_enough --Historiograf (talk) 23:32, 24 July 2008 (UTC)

OK, something wider is needed. I have made a suggestion below. --MichaelMaggs (talk) 06:36, 25 July 2008 (UTC)

Museums and Galleries will have to learn to rethink

By trying to ban the publishing of their images in the internet these institutions actually hurt their own purpose. The Internet is here to stay and Wikipedia has become one of the leading, if not the leading platform for cultural information. So by purposely removing the content of an institution from this platform this institution actually pushes itself, or is beeing pushed into into international and national irelavancy. Internationally, because culture from e.g. Britain will not be recogniced anymore beyond the gates of the specific institutions. Even worse nationally, the wealth of these institutions will get lost even to their own nationals, because these will "consume" free content from outside without ever realizing what treasures lie just around the corner. The museums will still earn money from the sale of postcards from their bookstores, because they can controll which postcards they sell there. And Coffeetable Books of Art will still be sold, regardless if the images are published on the net or not. There are ways of publishing images on the net in ways that prevent them beeing used to reproduce them as cheap books or prints (it is just a matter of resolution) and I do observe a trend in the layout of newly published books from museums, that make it hard to scan high quality images from these books that would make them suitable for republishing. So I believe, that the cost-free publicity an institution gets from beeing represented in Commons far outweighs any percieved loss in the sale of a few prints or postcards. --Wuselig (talk) 08:30, 24 July 2008 (UTC)

I entirely agree! --MichaelMaggs (talk) 09:28, 24 July 2008 (UTC)

+1 --Historiograf (talk) 12:12, 24 July 2008 (UTC)

Me too. Hemmingsen (talk) 14:40, 24 July 2008 (UTC)

Undeletion time?

I just want to remind people that this wasn't the first time we've deleted 2D reproductions of public domain art. Should we undelete those that were purged in Commons:Deletion requests/Images of Jorunn (uploaders request)? Haukurth (talk) 09:43, 24 July 2008 (UTC)

IMHO yes --Historiograf (talk) 23:13, 24 July 2008 (UTC)

Sure. When, when not now ? Mutter Erde (talk) 20:05, 25 July 2008 (UTC)

A little more on PD-Art

To put it plainly, WMF's position has always been that faithful reproductions of two-dimensional public domain works of art are public domain, and that claims to the contrary represent an assault on the very concept of a public domain. If museums and galleries not only claim copyright on reproductions, but also control the access to the ability to reproduce pictures (by prohibiting photos, etc.), important historical works that are legally in the public domain can be made inaccessible to the public except through gatekeepers.

WMF has made it clear that in the absence of even a strong legal complaint, we don't think it's a good idea to dignify such claims of copyright on public domain works. And, if we ever were seriously legally challenged, we would have a good internal debate about whether we'd fight such a case, and build publicity around it. This is neither a policy change (at least from WMF's point of view), nor is it a change that has implications for other Commons policies. --Erik Möller 01:34, 25 July 2008 (UTC)

It looks like Jimbo has weighed in on the issue as well:

"Speaking only for myself, not the Board, and speaking only in my

traditional capacity, I can say that I very strongly support keeping these images. Public domain paintings are public domain. This is not about borderline cases around exact dates. This is OLD stuff. I call on the National Portrait Gallery to release these images under a free license. Barring that, I propose that we ignore any illegitimate and unjust false claims to copyright in these things, unless and until they are willing to take us to court. Mike Godwin and the Wikimedia Foundation have the final say, of course,

and I respect that. But I hope we encourage courage in this area."

From these statements, it appears that we should edit the content of this policy to allow {{PD-art}} from any country (as the English Wikipedia does) in order to be more in line with Foundation goals and the goals of the Free Culture movement in general. Obviously, this would also necessitate adding a warning for potential reusers of PD-Art material. Kaldari (talk) 05:08, 25 July 2008 (UTC)

• Something fairly broad is needed. What about something along these lines, with appropriate explanations and links to the WMF position statements in a re-written page Commons:When to use the PD-Art tag?

--MichaelMaggs (talk) 06:40, 25 July 2008 (UTC)

 Super-strong oppose with extra cheese. Thanks, but no thanks. As much as I disagree with my country's copyright laws for simple photographic reproductions, I'm not about to partake in a project that pretends they don't exist simply because it has a "position." —LX (talk, contribs) 07:02, 25 July 2008 (UTC)

Well, as you know I fully agree with you on that, and for that reason I would not want any template to pretend that the WMF Board has actually studied any of the local law issues. But I am more relaxed about saying that is their 'position' and leaving them to deal with any resultant problems that may arise. I have tried hard to get the community to respect the position under UK law, but given the Board's recent ex cathedra statements that is clearly impossible. I imagine you will have a similar difficulties getting the Board to recognise the Swedish position. The details are different, of course, but the Board does not want to look at details. --MichaelMaggs (talk) 07:41, 25 July 2008 (UTC)

Applying copyright internationally is a messy thing... but I don't simple images (Nordic style) are protected in the US. I wouldn't mind if the people with power decided that Commons (as it is in the US) can host these images but it doesn't take away the fact using these image would be restricted in the Nordic countries (and therefore in their respective local projects). Samulili (talk) 12:50, 25 July 2008 (UTC)

There's no such thing as projects local to a particular jurisdiction. The Swedish Wikipedia edition is a Wikipedia in the Swedish language. It is not the Wikipedia of Sweden. However, uploading such images from Sweden or downloading them while in Sweden, irrespective of the language of any text appearing adjacent to them, would constitute copyright infringement. It may also be illegal for users in Sweden to facilitate or condone such infringement, so as an administrator working mainly from Sweden, I'd be forced to (1) ignore Swedish legislation (which also condones putting our uploaders at risk), (2) ignore Wikimedia Foundation "positions" and Commons policies and delete copyright infringements anyway, or (3) give up my administrative privileges (which I expect would be the outcome of option two as well). (This is not a threat or sandbox tantrum; it simply what follows as a consequence of the (il)legality of the proposed changes. I really hope it doesn't come to that, but if people want to turn this into Wikipirate Bay, they're going to get a different clientele.) —LX (talk, contribs) 14:46, 25 July 2008 (UTC)

Yes, there is conceivably some legal risk to you in assisting with the administration of a project which publishes images which may infringe copyright in Sweden. But Commons already doesn't require all its content to be free in Sweden and never has. English Wikipedia goes even further and only requires images to be free in the United States and it still has plenty of administrators situated outside that country. Haukurth (talk) 14:59, 25 July 2008 (UTC)

I won't comment on the situation in other countries, but to add to your list of cases of when uploading or downloading might be a copyright infringement in Finland: when it happens in Finland, by a Finnish citizen, when the victim is a Finn, when the infringer permanently lives in Finland, when the infringer is caught in Finland and they permanently live or a citizen of another Nordic country, when a foreign state where the act is also illegal requests for a prosecution in Finland agains their own citizen. (Not all of the scenarios are very likely...) At minimum, we need a warning system if those in power choose to disregard certain local laws. Samulili (talk) 15:47, 25 July 2008 (UTC)

• Yes, we can work with something like that. The current wording is a bit pompous but we can tune this into something that makes it clear that it's an ideological lex ferenda position. Haukurth (talk) 08:28, 25 July 2008 (UTC)

I have tweaked the wording to make it a bit snappier. --MichaelMaggs (talk) 09:33, 25 July 2008 (UTC)

Ah, yes, a good edit. I tried some modifications as well. Feel free to further modify or revert, of course. Haukurth (talk) 09:44, 25 July 2008 (UTC)

Looks good to me. --MichaelMaggs (talk) 10:54, 25 July 2008 (UTC)

• This is a slippery slope, but it's the WMF's call. Does anyone know what the implications for the uploader are? Pruneau^talk 10:34, 25 July 2008 (UTC)

• Good point. In theory the uploader can be considered to be the publisher of the material and may incur legal risk of her own. In practice the risk is usually small and one which many people are prepared to take. Nevertheless we should try to make sure that uploaders are warned about this. Haukurth (talk) 10:47, 25 July 2008 (UTC)

• Well, an uploader in the UK who scans and uploads an image from a book would be at risk under UK law, but maybe in practice copyright owners will not care about an image or two. Whether they would take the same view of someone who systematically scans and uploads high-quality images from, say, a National Portrait Gallery exhibition catalogue would be another matter. I would not take the risk myself. Someone scanning and uploading the same NPG catalogue in the US may find it easier to escape personal liability since the NPG would need to persuade a US court to uphold a UK copyright of the type that at least one US court has declined to do (see Bridgeman). In any event, the fact that the WMF has taken a certain 'position' will not help an uploader who runs into trouble under local law. --MichaelMaggs (talk) 10:53, 25 July 2008 (UTC)

I think that Michael is reading to much into the statements made by representatives of the foundation. I don't think I have seen them saying that these "reproductions [are] in the public domain worldwide", and claiming that they have only does damage to the discussion. Samulili (talk) 12:26, 25 July 2008 (UTC)

I added that word, so don't blame Michael. It's true that Erik doesn't explicitly say 'worldwide' though I think that's what he means. Nevertheless I'll remove the word again for now. Haukurth (talk) 12:32, 25 July 2008 (UTC)

I apologize to Michael.

To analyze the issue further, I think we have to remember that the answer we get depends on the question we ask. Has there been any other discussions than the question of UK scans and UK photos? If not, it seems a bit odd to me if from those answers we infer something regarding "simple photographs". Samulili (talk) 12:44, 25 July 2008 (UTC)

The WMF people aren't discussing the technicalities of the UK situation at all, they're making broad statements. Haukurth (talk) 12:51, 25 July 2008 (UTC)

I'd tend to agree with this last point which is why we shouldn't simply accept their position. The comments from Jimbo and Erik seem to fail to analyse the particular circumstances in the UK and instead adopt an approach that the museum is wrong for claiming copyright on the images. Whilst they might do so, even if they don't it doesn't mean we can do as we wish. Just because they don't attempt legal action that doesn't mean we should keep these. We shouldn't be trying to see what we can get away with and base our policies on that, we should base it on the laws. Of course we aren't all lawyers but this is where the WMF legal team should be helping. Instead of saying that we've got away with it so far so that's fine as Mike seems to have, the WMF legal guys should be doing the research into the relevant laws in the UK. They should be actively looking into this rather than sitting back and waiting until the copyright infringement notices come in. Adambro (talk) 15:15, 25 July 2008 (UTC)

To clarify my note above (and repeat myself a bit), Wales/Godwin/Möller have not addressed the question: Would a person reusing NPG content within the UK be in trouble? They're just saying that the WMF itself is either safe or willing to take whatever risk there is. They're also saying that the NPG is ethically wrong in claiming copyright but they haven't said that the NPG is factually wrong in claiming to be able to enforce that copyright within the UK. So I don't think they're even trying to answer the legal question which Michael put so much effort into researching. Instead they've sidestepped it with an ideological position. Haukurth (talk) 15:33, 25 July 2008 (UTC)

Anyone can ask the representatives of the Foundation to delineate the exact limits of their 'position', but I doubt that you will get any satisfactory answer. They know perfectly well that they could help us out with a short paragraph but it appears to be their policy not to do that and to leave the community to work things out as best we can. The lack of clarity on their part is not accidental. --MichaelMaggs (talk) 16:22, 25 July 2008 (UTC)

Then let's bloody work it our ourselves, and let's not hide behind their statements or pretend that they are forcing Commons to break the law. If the board wants to micromanage Commons and order it to change its policies, it needs to make that very clear. Otherwise, their opinion holds no more weight here than that of any valued Commons contributor. —LX (talk, contribs) 16:58, 25 July 2008 (UTC)

Very true. It is obvious that WMF representatives are deliberately vague, as they always are in such matters. --Kjetil_r 20:49, 26 July 2008 (UTC)

Okay, would this work better? User:ViperSnake151/2D-art warning

Under the Copyright laws of the United States, where this site is hosted, originality of expression is necessary for copyright protection, and a faithful reproduction of an out-of-copyright work cannot be protected under U.S.copyright law. But in some countries, simple diligence in the creation of a work is enough to generate a new copyright in some cases. As a result, this image may be copyrighted outside the US and in its country of origin. Please see Commons:When_to_use_the_PD-Art_tag for a list of country specific-rules on reproductions of artwork. Re-users of this image should take particular care to determine any legal risk they may incur before using this content. See our general disclaimer for more information.

ViperSnake151 (talk) 17:27, 27 July 2008 (UTC)

A Plea for Moving Forward

OK guys, it's time for us to stop being timid mice. Let's step back and look at where we are for a second. The Wikipedia Commons isn't just any image repository. It's part of the WikiMedia Foundation and an extension of the original Wikipedia project. As such, we stand at the forefront of a very important cultural and political movement that the rest of world is just now beginning to take notice of - the Free Culture movement. We can sit here and wring our hands for the foreseeable future and whine about how the Foundation isn't giving us enough guidance on dealing with these legal issues. Or we can realize that we are part of the international movement to change these laws and reclaim the public commons from narrow corporate interests. If that means pushing the envelope, we should be more than willing to take that step. The Foundation is trying it's best to push us out of the nest without dictating what we have to do. It seems pretty clear to me that it's time for us to take a tiny step forward and stop being so timid. Yes, people who reuse our content might be incurring legal liability. Yes, people who upload images from the NPG might be at risk. This has always been true. What if people had decided that it wasn't worth protesting segregation in American because it might incur legal liability? For Christ's sake, why are we shaking in our boots because of some theoretical legal issue that might, just might, one day lead to a court case where we could actually fight for what we believe in - protecting the public commons. If anyone is incurring liability here, it's me. I ordered these prints from the NPG. I scanned them. I uploaded them. And I nominated them for deletion when I realized that they weren't allowed under our policies. I'm actually quite amazed that the Foundation has unanimously come out in support of us changing our policies, and I'm greatly encouraged by it. If I end up being sued by the NPG, I will be incredibly thankful that I get an opportunity to participate in fighting for the public commons. Why should we let sites like YouTube and Flickr be the only ones to push the envelope? If anyone should be pushing it, it should be us! Sure we have a responsibility to try to adhere to the law, but we should absolutely not be bending over backwards to avoid running up against the line in the sand that copyright proponents have drawn. As long as we fail to push back, the line keeps getting drawn further and further into territory that used to belong to the public commons. Let's listen to what the Foundation is trying to tell us and jump out of the nest. History is not going to look back and admire us for making sure we never threatened anyone's copyright claims. We have a real opportunity here to say what we believe in and I for one and willing to take this tiny step and stop letting the armchair lawyers dictate that we must adhere to the most stringent possible standards. Kaldari (talk) 17:29, 25 July 2008 (UTC)

I'm already in favor of going with the most permissive standard which the WMF will allow us - accepting all images which are free in the United States, like the English Wikipedia does. If we can't get enough support for that then let's allow all 2D reproductive images (which has been pretty much the de facto policy anyway) and use an appropriate template for them. Haukurth (talk) 18:06, 25 July 2008 (UTC)

I totally agree. Btw, I will be out of contact with the internet for the next week or so. Have fun, and I look forward to seeing it all sorted out when I get back ;) --MichaelMaggs (talk) 18:12, 25 July 2008 (UTC)

The free culture movement is about spreading culture that is free, not culture that we think ought to be free (that would be the piracy movement, and there are already plenty of sites for that). With respect to the Nordic countries, this is not a theoretical matter; it's a matter of established statute. On the one hand, if you want to protest the laws you disagree with and get them changed, I'm all for it. On the other hand, you can invoke the ghost of Rosa Parks all you want, but if you want to change those laws by breaking them, don't make me your accomplice. As much as I disagree with affording to copyright protection to images which do not meet the threshold of originality, those provisions are part of the same statute that keeps copyleft-licensed works and their derivatives free, and the law is not a smörgåsbord. If we don't respect it, we can't expect anyone else to respect the rights of copyleft authors under the same laws. —LX (talk, contribs) 18:21, 25 July 2008 (UTC)

The specific laws that we are talking about (at least for the UK) are not laws that are carved in stone, indeed, they are mostly just legal precedents and opinions at the moment (often conflicting). If, and when, they achieve the same degree of establishment as say the copyright on Harry Potter, I will completely agree with you. Until then we need to acknowledge that this issue is still evolving, and we are part of that evolution. Kaldari (talk) 18:28, 25 July 2008 (UTC)

If Nordic countries truly warrant an exception, you need to convince Haukurth to drop his opposition to my previous proposal. Kaldari (talk) 18:40, 25 July 2008 (UTC)

Well, obviously I don't have some sort of super-veto power sufficient to stop any proposal :) Anyway, I don't think that the copyright situation in Nordic countries (or at least my home country, which I'm most familiar with) is any more clear cut than that in the UK. Sure, photographs get neighboring rights protection but I don't think that completely settles it to the level of certainty which people suddenly seem to want. Haukurth (talk) 19:15, 25 July 2008 (UTC)

I'm sorry, there are so many proposals flying around right now that one can barely type a comment before it's edit-conflicted and obsolete. Which specific proposal are we talking about, what's the basis for Haukurth's opposition, and why is it my duty to support the proposal? This particular mouse actually believes the current policy is sound and doesn't need to be changed. I may tolerate a change in the interpretation of the UK situation, but anything broader is right out of the question as far as I'm concerned. —LX (talk, contribs) 19:07, 25 July 2008 (UTC)

If you believe the current policy is sound, you have a lot of images to start nominating for deletion. I would suggest starting with the 10,000 images donated by the Yorck Project (which seems to have a less strict interpretation of copyright laws than we do). Then I would remove most historic portraits of figures from Britian, Spain, Italy, and Scandanavian countries. Kaldari (talk) 19:11, 25 July 2008 (UTC)

To answer your question, my proposal was to create an exception only for the UK, which Haukurth strongly objected to on the basis that we shouldn't single out one country to change the policy for (specifically he wanted Iceland included). His objection is the main reason we are not moving forward on that policy (as I actually believe in the idea of consensus). Kaldari (talk) 19:13, 25 July 2008 (UTC)

Okay, without discussing any differences between the UK and Iceland, my response to that (not that I feel obligated) would be that the Commons page corresponding to this talk page already applies on a country-to-country basis, and that the reason for that is that laws are different in different countries, both in terms of intent and in terms of clarity. But I'm not sure that was really what was at the heart of Haukurth's opposition to that proposal. —LX (talk, contribs) 19:23, 25 July 2008 (UTC)

You're right that's not the only thing going on. I have tried and failed to get 2D reproductive images deleted before. Slim as it was before, I don't think there's any chance of requests like that succeeding after the Wales/Godwin/Möller comments. We've tried to adjust the facts on the ground to our policies, it's time to adjust our policies to the facts on the ground. Haukurth (talk) 22:59, 25 July 2008 (UTC)

• Please don't do country by country. The UK situation is very likely similar to that in Eire, Australia, New Zealand, India, Hong Kong ... The only valid approach to country by country is to look beneath the WMF ideological position and to consider local laws. I thought we had agreed not to do that. If there is a movement back to UK only, I strongly oppose that on the grounds previously stated - namely that the law in the UK is quite clear and that faithful reproduction images are copyright. That's the loop we have spent the last few weeks going around. The way forward seems to be the simple revision to the PD-Art tag, making it useable for all countries. --MichaelMaggs (talk) 19:40, 25 July 2008 (UTC)

Indeed. In the case of New Zealand, while it isn't entirely clear (as far as I can tell there has been no case to test this specific issue), the law protects any photograph made - there is no artistic requirement. (Of course, it could be argued in court that the copyright claimant is trying to protect the PD item, rather than the photo.) This new policy could easily fall on the wrong side of the law in a number of countries. Mostlyharmless (talk) 05:10, 2 August 2008 (UTC)

Deleting the The Yorck Project images as well

If we leave our policy as it is, I believe that we will also need to delete a sizable chunk of our Yorck Project collection (10,000 images). A large number of these images are from the National Gallery and the National Portrait Gallery (and other UK galleries). The copyrights asserted by these museums on reproductions of the works they hold are certainly not compatible with the GFDL, Creative Commons, or any idea of public domain:

• National Gallery: "The National Gallery holds the copyright for all the photographs of paintings in the permanent collection displayed on this website, and always needs to be contacted for permission when paintings are to be reproduced."
• National Portrait Gallery: "If you wish to use this material in any other way than those specified above, you must seek separate permission. Without written confirmation of such separate permission in respect of the materials and works included on this website, all other acts are prohibited including but not limited to the following..."

Of course this calls into question the copyright status of the entire 10,000 image collection. Do we know that DirectMedia (the company that donated the collection) is even aware of the unique copyright issues involved with these and similar images? Do we have any record of the chain of permissions needed for us to be sure that those galleries are actually fine with us giving away their photographs for free (which is extremely doubtful since they've already sent the Foundation letters of complaint about them).

To those who insist that our current policy is A-OK, will you hold the same position if I nominate the Yorck Collection for deletion due to dubious copyright status? Kaldari (talk) 19:32, 25 July 2008 (UTC)

According to the note of permission concerning the 10,000 images in the Yorck Project collection, they donated them under the belief that the Yorck Project collection consisted only of "scans from public domain paintings (all of the artists are dead for more than 70 years)." No mention of the issue of separate copyrights on the photographs of the paintings which were scanned. If we are going to follow the letter of the law, we need to delete a large portion of those images. Kaldari (talk) 19:46, 25 July 2008 (UTC)

Let's not intermingle deletion discussions and policy discussions. The process of determining the criteria for what we consider free works should not be reverse-engineered to fit some specific set of images we desire to keep. Either they are free according to the criteria we establish, or they're not, in which case they should never have been uploaded in the first place. The notion that maintaining our existing policies will cause us to lose images is a bit like suggesting we raise the legal blood alcohol concentration for driving to reduce the number of drunk drivers on the road. —LX (talk, contribs) 22:34, 25 July 2008 (UTC)

Straw Poll

Since every suggestion I've made so far has been shot down by someone, I have decided to resort to evil. That's right, I've created a Straw Poll. If a sufficient portion of the community thinks we should keep our policies as they are (which means also enforcing them), I will continue nominating infringing images for deletion (and expect the community to support the deletion requests so that we can move forward). Otherwise I will help to craft new policies as the community deems appropriate. I refuse, however, to let all of these images I have scanned and uploaded sit in limbo forever. Kaldari (talk) 20:31, 25 July 2008 (UTC)

It's evil alright. Half a week's discussion is "forever," so we now have to abandon all wiki principles, bring our buddies and vote? Who decides what a "sufficient portion" is, and will that be declared before or after the votes are counted? Crikey. —LX (talk, contribs) 22:47, 25 July 2008 (UTC)

Why is this up for a straw poll already? I think that in this case, maybe there should be consensus for a poll first. ++Lar: t/c 16:33, 26 July 2008 (UTC)

I have tried to push for consensus on all 3 sides of this issue, and have failed on all 3 attempts. In 2 of those cases consensus was thwarted by a vocal minority seemingly entrenched in their viewpoint, thus a straw poll seemed the only way to move forward, IMO. Sorry if this seems premature, but there are deletion debates waiting on the outcome of this discussion. Kaldari (talk) 17:41, 27 July 2008 (UTC)

pma

Might it be possible to explain the meaning of this abbreviation early on in the text? It's not widely used in general writing (at least here in the UK) and is likely to confuse some readers. 86.132.142.207 15:25, 26 July 2008 (UTC)

This is an abbreviation of post mortem auctoris, i.e. the number of years after an author's death when a copyright expires. See {{PD-old}}. --AFBorchert (talk) 15:46, 26 July 2008 (UTC)

"requiring great talent and technical skills"

[R]eproductions requiring great talent and technical skills may qualify as protectable works of authorship, even if they are copies of pre-existing works. This would be the case for photographic and other high-quality replicas of works of art..

It seems to me, although I am not a lawyer, that the above case law and legal opinions cited by Michael Maggs and others do establish precedent for faithful reproductions of PD works to be covered by copyright. What is required, and the above quote illustrates this quite clearly, is that there is at least some talent or skill involved. In Sawkin, this took the form of a restoration of a damaged work. The skill involved in making a high quality photograph of a PD artwork cannot be automatically dismissed. Which leaves us in the position of having to judge whether sufficient skill and talent has been expended, and this of course is an impossible job in the absence of a large body of case law and well established precedents. As noted above, it is currently a somewhat open question. So, we're either going to push ahead and inevitably accept images that copyrighted by virtue of their quality, or exclude all images of this type from the UK (which are not of course PD self or similar). Mostlyharmless (talk) 05:37, 2 August 2008 (UTC)

If I recall correctly, the photos in Bridgeman were made and first published in the UK. Corel re-published them in the US, hence the US jurisdiction, which also protects Wikimedia. So the legal precedent opinions Maggs cited don't apply in law to us—instead they help us interpret the Commons policy of requiring free content in the country of origin. When we enforce that policy on unlicensed photography of PD-Art from the UK we can and should move a photograph to English Wikipedia, or some other Wikimedia database where only strict compliance with Florida law is required. --InfantGorilla (talk) 21:28, 5 August 2008 (UTC)

A late addition

I have just spent an hour working through the debate above with only an informed laymans view of the law. It seems to be accepted that the UK courts may rule that the NPG have established a new copyright by taking a photo of an "old" piece of art. It seems clear that those who want to do the "right" thing know that the NPG's position (for instance) is ethically wrong. It also seems clear that those who do not want to even risk breaking a law better avoid loading down NPG images if they are in the reach of UK police. Also clear that "the board" are willing to test the water. (I hope they are not just hiding behind U.S. borders as if feels like I'm part of a communinity rather than just "aiding and abetting" (I'm in the UK). It is also clear that there is no consensus. Suggest some alternative views

1. The moral position in my mind feels strong because - Our politicians once passed a law that said "70 years" ... if they knew that a camera would give the copyright holder another 70 years or so then why waste the time on a law. Would the politicians intervene? Will I still be alive?
2. These paintings were given in many cases by "nice people". They thought that they were giving these pictures to the UK/world. I don't think they intended that these would fund the sale of postcards. Now in this case there is/was a contract. There is a deed of gift. Instead of looking at copyright law then could we consider whether some bodies (e.g. u.k. charities) could be asked if they intended their gifts of paintings were going to be protected from the use of scholars around the world? e.g. Anti-Slavery International gave a painting... was this to publish it to the world or keep it for those who are a bus ride away from London? Would these people support asking for there paintings back ... or threatening to? Victuallers (talk) 21:24, 5 August 2008 (UTC)

• Regardless of UK law, consensus on the way forward (ie to follow the WMF ideological "position") is now appearing at Commons:When to use the PD-Art tag/Straw Poll. --MichaelMaggs (talk) 21:57, 5 August 2008 (UTC)

A bunch of unsubstantiated votes does not a consensus make. I stand by my previous objections to the attempt to override arguments with votes, many of which have come from copyright violators, redlinks and users with a total number of contributions in the double digits. —LX (talk, contribs) 09:39, 6 August 2008 (UTC)

But what would you have us do? The PD-Art policy as written was not being enforced and this recent attempt to enforce it resulted in this massive blowback. A special exception for UK images would just dig us into a hole of delusion. Haukurth (talk) 10:24, 6 August 2008 (UTC)

@LX: It would be nice if the opinion of the majority is respected. Personal attacks are not wanted here. Yann (talk) 10:28, 6 August 2008 (UTC)

We are not a parliament. The opinion of the majority bends to the law, it does not make it. Rama (talk) 12:33, 6 August 2008 (UTC)

Personal attacks? —LX (talk, contribs) 05:41, 7 August 2008 (UTC)

Request for clarification

Given the above position regarding UK NPG images, I was wondering if the same public domain claim would apply to images recently uploaded by Telor Roberts to en.wiki on behalf of the National Library of Wales. If so, I'll advise Roberts that his uploads may be transferred to the Commons without any recognized claim of copyright. ˉ^anetode╦╩ 11:55, 15 August 2008 (UTC)

There appears to be no consensus in the discussion yet, so holding off on transfers is probably the right thing to do for now. —LX (talk, contribs) 14:49, 15 August 2008 (UTC)

Suggest you hold off for a short while until Commons:When to use the PD-Art tag/Straw Poll is concluded and policy has been updated. Shouldn't bee too long now. --MichaelMaggs (talk) 17:56, 15 August 2008 (UTC)

OK, now all ready for you to upload those. See COM:ART. --MichaelMaggs (talk) 19:20, 19 August 2008 (UTC)

National Portrait Gallery and copyright

The National Portrait Gallery charges a license for any of its pictures to be displayed on a website or otherwise used. How does this figure into copyright laws for pictures that are well over a century old? Haven't the pictures or photographs fallen into the public domain by then? Could I purchase a copy of one of their pictures, scan it in then post it here, as a 2D reproduction of a picture which itself is (by dint of age) part of the public domain? The Smithsonian copyright information[15] This picture, for instance, is definitely old enough to be well outside the "author's life + 70 years", let alone the 70 years which I believe the picture was under when it was first created.[16] How does this PD-Art tag take something like that into account? After having read much of the text already on this page, let me hasten to say that I live in the US and that (so far as I'm aware), I have nothing to do with the UK or with any UK-centric discussions on this issue that may arise. I'm asking solely in light of the US copyright laws and US public domain. Banaticus (talk) 18:50, 19 August 2008 (UTC)

You will be pleased to hear that Commons policy has just been changed, today, to allow such pictures to be uploaded here (not all the relevant help pages have been updated yet, but the main policy page COM:ART is now fully up to date. --MichaelMaggs (talk) 19:19, 19 August 2008 (UTC)

Board position

When someone says the board has an official position, I expect to see a binding board resolution at foundation:Resolutions, not a personal statement from any single person posted on a Talk page; this is even more true given that Erik Möller was not even a trustee when he made the statement. The current claim that this is the "position of the WMF" is unacceptable. Superm401 - Talk 02:03, 20 August 2008 (UTC)

It seems very clear that he is purporting to speak on behalf of the Board, and the Commons poll and change of policy has been predicated on that fact. I see no reason to doubt his statement: he is setting out the Board's "position", not reporting a Board resolution. --MichaelMaggs (talk) 06:43, 20 August 2008 (UTC)

I don't doubt that he is acting in good faith, but he seems to be going beyond his authority. If the Board won't pass a resolution and a single person needs to speak for them officially, it should be the chairman, Michael Snow, or someone he designates. Superm401 - Talk 13:13, 20 August 2008 (UTC)

Since both Jimbo and Wikipedia's legal council (Mike Godwin) seem to agree with Erik, I don't see any reason to doubt Erik's statement. Do we really need the foundation to issue an official edict for every opinion? Unless someone on the board says otherwise, I think referring to it as the board's position is entirely reasonable. Kaldari (talk) 18:47, 20 August 2008 (UTC)

BTW, Mike Godwin also specifically said that it was "the Foundation's position", not just his personal opinion. Kaldari (talk) 18:51, 20 August 2008 (UTC)

There is not a board position on this. Mike Godwin wrote a legal opinion. Both Mike and Erik are speaking on the Foundation's philisophical position and should not be used to browbeat Commons to a single perspective. It's also the Foundation's position that all of our content should be available freely to reuse; but many projects continue to allow fair use images on their pages, including the largest project. Commons, like every other community is free to come up with its own conclusions as to how best to apply the philosophy--we've discussed a matter in of a particularly stupid and generally unenforceable UK law (which involves exceptions for certain organizations) and both Mike and Erik's comments were in response to that--the matter of Swedish copyright on reproductions is a bit more broad, and certainly of concern to our contributors who live in Sweden; and it's probably considerably more enforceable. I would suggest opinions about this be solicited from the recently organized Wikimedia Sverige and other Swedish contributors before we decide this new policy is without exceptions from everywhere. Bastique ^demandez 21:57, 20 August 2008 (UTC)

One of the available options was to change policy for UK art images only. That gained zero support from the Commons community. --MichaelMaggs (talk) 07:27, 21 August 2008 (UTC)

Why would a stupid Swedish law be more enforceable than a stupid British law? What makes you think it would be a greater concern to Swedish contributors? And we don't need to browbeat the Commons community into allowing these images - on the contrary we are moving away from unsuccessfully trying to browbeat it into not allowing them. Haukurth (talk) 22:02, 20 August 2008 (UTC)

Also, can I say that this Henry II style of pronouncements from the WMF is a bit grating. If you don't want the priest killed then don't encourage people to kill him. Haukurth (talk) 22:36, 20 August 2008 (UTC)

If Bastique is correct that there is no board position on this, and I agree, the page is still wrong. Changing "WMF Board" to "Wikimedia Foundation" is irrelevant; they are the same for all relevant purposes. Superm401 - Talk 23:34, 20 August 2008 (UTC)

You're going to have to do more to show that the Board agrees with exactly this strong statement ("faithful reproductions of two-dimensional public domain works of art are public domain, and that claims to the contrary represent an assault on the very concept of a public domain"). Links to vague emails by individuals on tangentially related issues will not be sufficient. There is a reason we have board resolutions; they allow the foundation to make a clear statement with clear authority. Of course, board resolutions are not necessary for day-to-day issues. But this is not minor in any sense. It is central to the future of this project. Superm401 - Talk 23:35, 20 August 2008 (UTC)

I've posted about this to foundation-l. Superm401 - Talk 00:02, 21 August 2008 (UTC)

However you want to characterize it, the Commons community has seen exactly what EM wrote and has taken its own decision to change policy on that basis: Commons:When to use the PD-Art tag/Straw Poll. Sorry if you missed the extensive discussions and poll at the time. --MichaelMaggs (talk) 06:03, 21 August 2008 (UTC)

Mike Godwin has also stated that this is the Board's position. You indicated at the top of this section that you "expect" to see a Board resolution. Please feel free to make your expectation clear to them. Just make sure you have your hard hat on ready for the response: the Board does not like being told what to do :) --MichaelMaggs (talk) 06:08, 21 August 2008 (UTC)

May I put forward a hypothetical scenario, just to see in what grounds we are.

Someone from the Swedish Wikipedia wishes to illustrate an article of a Swedish painter whose works have fallen into the public domain, but the only thing he finds are reproductions in Swedish books. The user lives in Sweden. According to the Swedish law, such reproductions have a new copyright, and being the book quite recent (let's say from the 90's), those reproductions are copyrighted. He scans then anyway, uploads on Commons, slaps PD-Art on them.

Two months later, the editorial group finds out that one of their reproductions is hosted on Commons and used in an article on the Swedish Wikipedia. May I remind you that the Swedish Wikipedia is mainly used in Sweden (or so I believe; it's the only country in the world where Swedish is a de facto language, with the addition of small communities here and there and Åland). So the user is told to take down the pictures. He can't do that, because he is not an admin, but he has effectively broken the law in Sweden. He contacts a Commons admin.

If he contacts a Swedish admin (or an admin living in Sweden, to be more precise), what will the admin do? Keeping the image knowing that he is supporting a violation of the law in his own country, does this grant him legal problems? So he has to remove the picture. But then he's violating Commons policy. What does he do, remove the picture and ask a non-Swede to restore it, to save the face? What happens to the uploader in legal terms, is he still in trouble? Can the picture be in a Swedish article at all? Has anyone thought about this?

I'd really like to know this, even for personal reasons. Because if this happens to me, I might not just in trouble with the authorities, I may lose my residence permit and not be allowed to come back to Sweden for a while.

What I'm defending is to keep the scenario as it was before: discussing the problem on a case-by-case basis. I don't know about you, but I don't believe in civil disobedience as a way to prove a point. Patrícia ^msg 10:09, 21 August 2008 (UTC)

Well, Commons has never been able to grant immunity to a user from the effects of his/her local law; and yes, the risks to users were discussed. The newly-agreed Commons policy on PD-Art actually brings us into line with longstanding policy on the English Wikipedia (effectively, the policies are equivalent to assuming that the Bridgeman case applies worldwide). The example you give causes exactly the same issues on en:W (bearing in mind that the English Wikipedia is available worldwide, just as the Swedish Wikipedia is). --MichaelMaggs (talk) 11:36, 21 August 2008 (UTC)

Godwin said in that email, "I think it's still the Foundation's position, Klaus." and "it is unclear whether the Foundation currently has any legal problems as a result of the public-domain paintings in question appearing on Commons." He certainly didn't claim that the board absolutely endorsed Möller's view. Superm401 - Talk 20:08, 21 August 2008 (UTC)

I agree with Maggs. We have a clear opinion of the foundation (although no formal resolution) and a clear community decision by poll. That's enough for a policy change. If there are proven examples that one loses his resident permit and isn't allowed to come back to Sweden for a while we can rethink our position --Historiograf (talk) 13:08, 21 August 2008 (UTC)

I, and probably others, will be avoiding to upload anything which I believe to be against the local laws. But when a user discovers this after having uploaded potentially problematic pictures, they might worry, even if the chances of being sued are slim. Could the policy maybe be altered to allow user-requested courtesy deletions in such cases? Pruneau^talk 15:19, 21 August 2008 (UTC)

There is no need for incorporating such a rule because it is likely that every user will find an administrator who is inclined to delete the picture and re-upload it under his own name. --Historiograf (talk) 17:31, 21 August 2008 (UTC)

Disputed copyright...

See this mailing list message and {{Disputed copyright}} and Commons:Disputed copyright. Lupo 21:01, 29 August 2008 (UTC)

The current version of {{PD-Art}} looks as if the PD-Art template ate a bunch of other templates and vomited on itself. I would like to see us bring it back down to manageable size. Bastique ^demandez 21:55, 29 August 2008 (UTC)

Well, it provides just the minimal information required and has links to pages where more detail can be found. I don't see much waffle in there which can be chopped out. It's rather long, as it has the functionality to be used with a variety of other templates, but I view that as useful. --MichaelMaggs (talk) 08:53, 30 August 2008 (UTC)

I think we can trim some of the instruction. There's a lot of redundancy. And that whole middle section that talks about a few random countries isn't necessary. I'm jealous of en.wp's (and they don't have to worry about translations). Rocket000(talk) 13:40, 30 August 2008 (UTC)

The stuff in the middle come from the transcluded {{PD-Old}} tag, and I agree absolutely that that needs simplifying and sorting out. Perhaps that should be discussed at Template talk: PD-old, though. --MichaelMaggs (talk) 13:51, 30 August 2008 (UTC)

I'm actually thinking about making PD-Art self-contained instead of calling other templates. With a couple parameters, I think we can cover all the PD-old variations (I'll have to take survey of everything that might be used in this template). There's wasted space and, well, it just looks bad putting templates in templates. It will also be a check to make sure only certain licenses are being used with it. I'll try and get something together in the next couple days. Rocket000(talk) 14:17, 30 August 2008 (UTC)

OK, that sounds good. --MichaelMaggs (talk) 14:33, 30 August 2008 (UTC)

That's a possibility if you account for all the templates currently being used inside PD-art (see the prefixindex lookup) and allow for expansion. Superm401 - Talk 02:04, 31 August 2008 (UTC)

Ok, I see what I can do. There seems to be a little excessive categorizing for non-content categories. And maybe now we can make the switch to lowercase "Art". Rocket000(talk) 07:36, 31 August 2008 (UTC)

You know, I wasn't aware we had all these variations. It seems new versions pop up all the time. I really don't think we need all these (are we eventually gonna have one for every country?), but I won't get into that now. So, I doubt I will be making it self-contained. Anyway, I'll continue this on {{PD-Art}}'s talk page if/when I need to propose any major changes. Rocket000(talk) 12:01, 31 August 2008 (UTC)

This is why I created {{Disputed copyright}}, which is a restriction formatted template rather than a warning notice. It can be attached to the image separately, like {{Personality rights}}. Bastique ^demandez 00:47, 1 September 2008 (UTC)

Time for a sanity check?

1. Someone snapped a photo of a prehistoric rock painting: Image:Rock-Painting-Ennedi.jpg.
2. They uploaded it to flickr.
3. Someone else (not me) uploaded that flickr image here.
4. The flickr reviewer robot determined that the flickr contributor did not use a free liscense when they uploaded their snapshot.
5. I suggest this is an example of why we don't rely on robot's judgment. Sometimes we need human oversight over robot judgement.

Cheers! Geo Swan (talk) 01:51, 6 September 2008 (UTC)

The flickr-license doesn't allow commercial use, why it is not suitable for Commons. The picture is NOT a reproduction of a 2-dimensional work of art, as the Commons license claims, because the cave wall is 3-dimensional. Therefore this image qualifies for speedy deletion.--Wuselig (talk) 10:37, 6 September 2008 (UTC)

Agreed. In exactly the same way that it would not be free if it were just a picture of a 3D rockface. --MichaelMaggs (talk) 10:42, 6 September 2008 (UTC)

I suggest this is not the meaning of "2-dimensional" we should be using. The surface of the rock is not flat -- but it is a 2-dimensional surface.

Humans must exercise meaningful oversight over robots -- because robots have no insight and should be counted on making mistakes in boundary conditions.

The original flickr uploader had no business claiming any rights on their image of a prehistoric painting. Period. Because its copyright would have expired centuries ago. Geo Swan (talk) 13:44, 6 September 2008 (UTC)

 Info Best to continue discussion on the relevant DR page, Commons:Deletion requests/Image:Rock-Painting-Ennedi.jpg. --MichaelMaggs (talk) 17:58, 6 September 2008 (UTC)

DR closed delete. Any chance of posting a link to the Flickr page here, so that we can read their discussion about relicensing difficulties and costs, and see if how it was resolved? --InfantGorilla (talk) 12:29, 13 December 2008 (UTC)

Applying this principle elsewhere

I was wondering what anybody though about applying this principle to {{PD-Edison Records}}. It seems to me that the template's restriction on restored mp3s from UC Santa Barbara seems to be the exact same issue--only applied to sound. Can we allow converted mp3s of Edison records that have been changed to ogg? I think we should. IronGargoyle (talk) 23:29, 8 December 2008 (UTC)

I am no lawyer, but I agree with the principle.

However, from a technical point of view, I don't understand the motivation for making OGGs from MP3s, since UCSB also offers the raw WAV files for download. An OGG files made from a WAV is potentially much higher quality than one made from the lossy MP3 format.

Do recording copyrights belong to the record company, or to the artists?

--InfantGorilla (talk) 12:06, 13 December 2008 (UTC)

The critical question in this case is how much effort and creativity were used to restore the sounds. If they were just run through a bunch of filters to remove the noise and boost certain frequencies then I would say the new versions are still public domain. If, however, the sounds were painstakingly reconstructed (in a way that might be unique from how someone else would reconstruct them) there might be a case for a new copyright on them. Kaldari (talk) 22:03, 15 December 2008 (UTC)

3D

I user is requesting that {{PD-Art}} on en.wiki be changed to allow for 3D art as well... see en:Template_talk:PD-art#Three-dimensional. This is stemming from my realization that {{PD-art}} did not apply to en:File:Angkordemon.jpg, where the other use feels that image, under US law, should be PD. If you are knowledgeable about this subject, or just have an opinion on it, feel free to comment. I don't want to create a situation where a PD-art image from en.wiki cannot be copied to the commons due to these significant differences in licenses, meaning this could mean we should change our PD-art tag here at the commons. -Andrew c (talk) 20:52, 24 February 2009 (UTC)

(cross-posted from en.W) It is true that Courts have sometimes held that specific reproductions of 3D works have no copyright protection, but that is a very different thing from allowing all photos of 3D works of art that are themselves in the public domain, which is what that proposal would effectively do. The wording "the reproduction does nothing more than accurately convey the underlying image" has I believe no legal basis and would be quite impossible to apply in practice. Commons does not allow such a huge extension of PD-Art and I see no prospect that we will do so unless the law changes. --MichaelMaggs (talk) 21:52, 24 February 2009 (UTC)

Are photographs of sculptures in public places taken by me different from photographs of sculptures taken by someone else? I think that is correct. Now, if a statue was created before 1923, and I submit a photograph of it to Wikimedia Commons, what do I say in the submission documentation? I am supposing that I need to establish that the statue was created before 1923, but it seems like there are photos of statues here which are considerably more recent than that. Davidt8 (talk) 16:21, 27 February 2009 (UTC)davidt8

You may be talking about Commons:Freedom of panorama. It varies based on law from country to country, but some places allow photos of otherwise copyrightd sculptures that are displayed publicly to not be copyrightable.-Andrew c (talk) 21:31, 28 February 2009 (UTC)

Concern about Shakespeare Cobbe portrait photos

I recently uploaded File:Shakespeare Cobbe painting TIME.jpg, File:Shakespeare_Cobbe_portrait_detail.jpg, believing that {{PD-Art}} would cover them, but because the painting itself is currently located in the UK, it's quite likely that (if these are in fact photographs) then they may be protected per Commons:Reuse_of_PD-Art_photographs#UK. Getty also has a high-resolution photo here that has not been uploaded. These are pretty important images and I'm not certain whether the owner will allow photographers to take a clearly-free replacement; do you think they should they stay or go? Dcoetzee (talk) 22:27, 9 March 2009 (UTC)

Yes, these images were almost certainly taken in the UK, so reuse is an issue there. They are, however, still public domain. See Commons:When to use the PD-Art tag. Kaldari (talk) 22:29, 9 March 2009 (UTC)

Aha, I see the relevant text now: "Nevertheless, under Commons rules the {{PD-Art}} tag can be used for "faithful reproduction" photographs of 2D public domain works of art even where copyright might be asserted under local law in the source country. This is a rare exception to the usual Commons rule that all images must be free both in the US and in the source country." Dcoetzee (talk) 22:32, 9 March 2009 (UTC)

The same issue applies to most of the other Shakespeare portraits on Commons as well. Kaldari (talk) 22:34, 9 March 2009 (UTC)

Mesoamerican codices

1. If I understand well, I can upload under this license as many photos of mesoamerican codices as I can find on internet (like this one, or that other ones) or scan from books, isn't it?
2. Do you think it can be useful to point it out in the introduction of all category:Illuminated manuscripts's subcategories, to make it clearer?

El ComandanteHasta ∞ 13:52, 17 March 2009 (UTC)

ad 1) Yes, but only if they are in only two dimensions. If the codices are folded or presented in any other shape than flat, the photographers choice of angle and lighting is protected.

ad 2) Please do so. --h-stt !? 17:00, 23 March 2009 (UTC)

Update on National Portrait Gallery images

FYI I've just been reading over some of the old threads from 2008 about NPG, and thought I should provide notice that pursuant to the change in PD-Art policy I have uploaded over 3000 high-resolution images from the National Portrait Gallery, London at Category:National Portrait Gallery, London. I've placed dozens of them in articles already, many of which had no images before, across many languages - they're extremely valuable for informational and educational purposes. I was meticulous in assuring that the original portrait was public domain in all cases (generally under either PD-old-70+, or under PD-UK-unknown + PD-1923). I am willing to assume any legal risk that I incur to myself, as long as the images will remain. Dcoetzee (talk) 11:33, 1 April 2009 (UTC)

Please also see my new page User:Dcoetzee/Articles using images from the National Portrait Gallery, London describing the many articles that these images have helped so far. The list is extensive, and we have the new PD-Art policy and the Foundation's courage to thank for it. :-) Dcoetzee (talk) 22:40, 1 April 2009 (UTC)

Thanks for that. It shows what a big difference a new policy can make. Good work. --MichaelMaggs (talk) 05:58, 2 April 2009 (UTC)

Update: Commons:Village pump#Legal threat from National Portrait Gallery—NPG sends a legal notice. Jappalang (talk) 13:42, 11 July 2009 (UTC)

Proposal for new section about no notice

According to [17], in the United States, if "the [art]work exist[s] only in the only copy of it ever to be made," then "[n]o notice is required." This seems to imply that {{PD-Art|PD-US-no notice}} is not a valid combination in this case. Additionally, they say "the year date may be omitted on pictorial, graphic or sculptural art (and its accompanying text, if any) where reproduced on greeting cards, postcards, stationery, jewelry, dolls, toys, useful articles." I think it would be a good idea to have a section discussing situations where "no notice" does not apply for artwork. Dcoetzee (talk) 22:49, 6 April 2009 (UTC)

PD-Art vs. PD-old

Hello,

The policy says:

• When you yourself personally took the photograph

In such a case, simply add the {{PD-Old}} tag to show that the work of art is itself in the public domain.

I think this recommendation is confusing at least, or even wrong. The author of the photograph, to which the license applies, is not dead. Contrarly to what the template says (the author died for more than 70 years) the image is in the public domain because a faithful reproduction of the object cannot be subject to copyright (i.e. {{PD-Art}} should be used instead). Yann (talk) 11:13, 5 June 2009 (UTC)

PD-Art is used for reproductions of 2D works that have fallen into the public domain. The photographer does not earn any copyright there, because reproduction of 2D is not a work in itself. So for public domain statues and other 3D works, PD-art is not a suitable license tag. --h-stt !? 15:02, 6 June 2009 (UTC)

Sorry, but you didn't address the issue at all. Please read what I wrote. Yann (talk) 17:31, 6 June 2009 (UTC)

Our tags do not handle the situation where there may potentially be two (or more) copyrights very well. The reason for the recommendation is that PD-art asserts not that the artwork is PD (that is clear anyway), but that the photograph is PD contrary to a copyright claim that might be made under local law by eg the photographer. If you took the photo yourself, there is no need for a tag that makes such an assertion about the photograph since by uploading the image you are clearly releasing it under a free licence, at the very least, and nobody could possibly claim any contrary copyright. Ideally, in such a case it would be good to have two tags, one for the artwork and one for the photograph, and some users do that, but to expect two tags of all uploaders would be too much. So far we do not have a suitable two-part tag. --MichaelMaggs (talk) 18:10, 6 June 2009 (UTC)

There is one important reason (or possibly two, depending if we separate internal from external reuse) why in such a case {{PD-Art}} is better:

Since we deny third parties a copyright claim in old PD art, it seems fair that we as contributors don't claim such a copyright;

This is specially important for reusers of Commons content: they only need to respect the rule set by the public domain claim, and not a license, however free it could be. Yann (talk) 19:22, 6 June 2009 (UTC)

Not sure I agree. We don't tell reusers that they only need to respect the rule set by the public domain claim. To the contrary, in fact: we warn them that in some countries, such as the UK, PD-Art images may not be reusable: Commons:Reuse of PD-Art photographs. A third-party re-user in the UK would be able to re-use a photo taken by the uploader (tagged PD-old as recommended) since whatever licence the uploader claimed on the photo, it would still be free. But such a re-user would not be able to use a PD-art photo taken by somebody other than the uploader (tagged PD-art) since under local law (in spite of what we may say here) the photographer has enforceable rights which have not been released. So, the PD-art tag is a warning to a potential re-user in the UK that the image is not free under local law. Where the photographer and the uploader are the same, the image is free under local law and can be used, whether or not the photographer wants to assert any copyright claim. That seems a useful distinction. --MichaelMaggs (talk) 19:59, 6 June 2009 (UTC)

Adding clearer warning to uploaders

Hi all - I was discussing my situation with a friend of mine and I showed them the policy page, and they made the point that the page doesn't clearly indicate the potential risk to the uploader. I wouldn't want someone in the future to be taken by surprise by legal action, particularly because the WMF is not likely to remove this type of image by request. Do you think it's a good idea to add a warning? Dcoetzee (talk) 15:54, 21 July 2009 (UTC)

Well yes, but it should be clearer that for any upload the user is legally responsible. Yann (talk) 20:53, 22 July 2009 (UTC)

Generally though it's pretty hard for an uploader to get themselves into legal trouble - normally if they upload a copyrighted image, we delete it upon discovery, whereas that wouldn't necessarily be the case here. So this case is potentially a bit more dangerous than others. Dcoetzee (talk) 23:56, 22 July 2009 (UTC)

Clarification needed

I want to ask if:

• I've found a 2D work on internet whose original 2D source is already in Public Domain;
• The distributor doesn't state how the image file was created;
• It appears that the image file is a faithful CG replica of the PD source;
• It doesn't require any conventional creativity in order to produce that file but technical skills, CG knowledge;

Does that conform the PD-art policy? Thx -- Sameboat - 同舟 (talk) 09:58, 25 July 2009 (UTC)

Yes, that's OK. That is the condition for using the PD-Art template. Yann (talk) 21:10, 26 July 2009 (UTC)

Does this also apply to PD flag art, regardless of how much effort the image file creator has invested in order to recreate a faithful digital replica? -- Sameboat - 同舟 (talk) 01:53, 27 July 2009 (UTC)

Yes. However, restoration work can create a new copyright if it adds a substantial new creative contribution. We'd have to see the specific example to make that call. Dcoetzee (talk) 02:13, 27 July 2009 (UTC)

1 amendment: no restoration technique of a broken PD source or directly presented photography invovled but the creator started the duplicating process from scratch. IMO such replica (usually) is not possible to be 100% accurate to the original work by either digital or analog means. We can only judge if the replica faithful or not, that's the ambiguation bugs me. Moreover during the deletion dispute of such case (mainly flag images transfered from www.fotw.net ,) the deletion supporters seemed to suggest the replica creator's endeavor should be regarded as a lawful patent. In some case, the files were deleted, but some has been preserved till now. I want Wikimedia to officially clarify the legal status of these images of PD source. -- Sameboat - 同舟 (talk) 02:54, 27 July 2009 (UTC)

Could you give an example please? In the case of most flags, I think that there can't be a copyright in the first place, whoever creates the file. Yann (talk) 08:46, 27 July 2009 (UTC)

Search result, examples of direct transfer from FOTW: File:Flag of Pertoltice pod Ralskem.gif & File:Flag of Čebín.png . -- Sameboat - 同舟 (talk) 23:56, 27 July 2009 (UTC)

This is a tough one. It's not clear to me that the person who created the specific flag image did not include a creative contribution of their own beyond the design of the flag. It would be better for someone to create and freely license an image of the flag. On the other hand, many flags are specified in such detail (right down to the specific colours and measurements) that any accurate rendering would be essentially identical, and for these there can be no contribution from the artist. Dcoetzee (talk) 00:56, 28 July 2009 (UTC)

The possibility for originality is very narrow if one should follow precisely the specifications, but these should be recreated in SVG anyway. Yann (talk) 19:05, 28 July 2009 (UTC)

Countries are not synonymous with jurisdictions

I have made a minor edit here to change countries to jurisdictions and the UK to England and Wales. I have made the change because this topic revolves around legal jurisdictions not countries. The country or state named the United Kingdom of Great Britain and Northern Ireland has until (at least the late 1990s) had three separate legal jurisdictions: England and Wales; Scotland; and Northern Ireland. While the three separate legal jurisdictions have had in common the same highest domestic court of appeal, that in itself does not alter the fact that the three legal jurisdictions remain separate and discrete for most matters of law. Wales now has its own representative government, but in terms of the development of the English common law mitigated by the law of equity, the case law remains the case law of England and Wales, and not the case law of the United Kingdom of Great Britain and Northern Ireland.Colenso (talk) 05:15, 18 Sept 2009 (UTC)

Disputed Fact Regarding Official Status

The phrase "The tag can be used on any such photograph regardless of the source country, following an official statement of the position taken by the Board of the Wikimedia Foundation in July 2008" is both false and ambiguous.

As it stands it implies that in July 2008 the Board of the WMF agreed a position which it then released in an official statement, which is demonstrably untrue.

It would seem that the author meant to refer to Erik Möller's comment on the talk page with a meaning like "In July 2008 an official statement was made stating that the Board's policy was ..."

However Erik's comment must not be regarded as "official" in any way because his user page specifically states "Unless otherwise stated, any edit to Wikimedia projects by myself is an act of a regular member of the community and administrator, not a legal or official action."

Any suggestions about what to do with that sentence to remove the untrue content?

9carney (talk) 19:17, 6 October 2009 (UTC)

Hello, this is really strange. What is current state of this question? It can cause big legal and administrative problems in the future -- at least without official WMF statement. And second thing is, objectively, it has big potential to very complicate relationships with our (not only librarian) partners. So?

--Martin Kozák (talk) 11:46, 14 November 2009 (UTC)

This does not apply to photographs of 3D works of art (?)

From the article:

This does not apply to photographs of 3D works of art

When a photograph demonstrates originality (typically, through the choice of framing, lighting, point of view and so on), it qualifies for copyright even if the photographed subject is itself uncopyrighted. This is typically the case for photographs of three-dimensional objects, hence the rule of thumb that "2D is OK, 3D is not".

As I understand it, images of 3D works, the 3D work not being under copyright, may be submitted by the photographer (or with the permission of the photographer) under an image license of the photographers choice (e.g. various Creative Commons License or a Public Domain release), with the original 3D work noted as PD-old. Modern 3D works may still be under copyright, and the copyright for two-dimensional images of such works may reside with the creator of the original 3D work or with others, depending upon the terms of the chain of contracts between the creator and the exhibitor or owner of the work. Some particular examples of restricted 3D works are the reflective chrome "blob" in Chicago or the "Wobbling Bull" of Wall Street. In the former case, an overall image of the Blob (http://uncyclopedia.wikia.com/wiki/File:CHICAGO.jpg) seems to be of dubious legitimacy. If no objections are posted here I will add the preceding to the article without reference to particular examples. - Leonard G. (talk) 16:34, 29 October 2009 (UTC)

All of the above is quite correct, although some of it is kind of beside the point in this context (since PD-Art is only for depictions of public domain works, not modern works of any sort). Dcoetzee (talk) 22:37, 29 October 2009 (UTC)