User talk:Bruno Vallette/Archives Licences

Licences applicables à un dessin de blason sur Commons

Licence GFDL/CC trop libre ?

Licence sur Image:Blason Famille Rougé 1332.svg

Copied from my talk page / Discussion effectuée sur ma page de discussion

Bonjour, j'aimerais savoir quelle est la validité d'une telle licence sur cette image. La licence généralement admise sur Wikipédia francophone est fr:Modèle:Blason qui laisse planer un certain doute. Dans se contexte, j'aimerais savoir si tu as conscience de cela. Enfin, il me semble important de préciser sur l'image pourquoi elle n'est plus protégé et peut être mise sous licence libre (de manière équivalente, pour une image dans le domaine public on spécifie par exemple que le droit d'auteur est arrivé à échéance, ou que l'auteur l'a placé lui même dans le domain public...). Merci d'avance. ~ bayo or talk 13:39, 27 August 2006 (UTC)

Bonjour,

La licence fr:Modèle:Blason me paraît effectivement assez obscure. Pour mon cas, ayant réalisé moi-même le dessin, je me crois en droit de le mettre à disposition sous licence libre. Mais peut-être ai-je tort, dans ce cas merci de m'expliquer en quoi. Bruno Vallette 14:04, 27 August 2006 (UTC)

A vrai dire j'en sais rien. Par exemple si je recrée le logo de Renault, Peugeot, Citroën même si je suis l'auteur du travail le logo reste une marque déposée. Pour les blasons il doit y avoir quelque chose comme cela, je vais me renseigner. ~ bayo or talk 18:15, 27 August 2006 (UTC)

Sur la page fr:Héraldique on trouve "Juridiquement, les armes sont l'équivalent dessiné d'un nom propre (nom de famille ou nom de lieu), et sont accessoires à ce nom. Les armes sont une propriété régulière, transmissible héréditairement, et susceptible d'être acquise ou conférée. Le droit associé aux armoiries s'apparente à celui des marques, et c'est probablement le premier sujet sur lequel un droit international (coutumier) ait été élaboré."

Puis ya tout ça : ya http://cluaran.free.fr/mb/bib/droit_heraldique.html j'ai pas trop envi de détailler :) ~ bayo or talk 18:22, 27 August 2006 (UTC)

J'ai lu avec intérêt les informations que vous citez en référence concernant le droit héraldique.

Il en ressort que [certaines armoiries] sont protégées contre l'utilisation comme marque de fabrique ou de commerce, et que les armoiries constituent pour la famille qui les possède une véritable propriété que nul n'a le droit d'usurper. N'étant dans aucun de ces deux cas de figure, puisque je ne fais qu'un travail de documentation et ne prétends rien usurper, je reprends mon travail de dessin sans poids sur la conscience. Merci de ces éclaircissements. Bruno Vallette 20:14, 27 August 2006 (UTC)

Licence GFDL/CC pas assez libre ?

Wrong license ?

(copied from / discussion effectuée sur User_talk:Polarlys#Wrong_license_?)

Hello,

I do not understand the comment wrong license you put on some drawings of the coats of arms of municipalities of Luxembourg.

1. The text of law you refer to is mainly about the national emblems of Luxembourg, not about the coats of arms of cities.
2. This same text only gives some exemples of the forbidden use of the coats of arms (fraud, etc.) but do not at all stipulates that — as your license say — the coat of arms of the Grand Duchy of Luxembourg can be used without restraint.
3. This law may concern the blazon (the description and the meaning of the coat of arms) but not the drawings that can be done. Here is a comparison to explain what I mean: the operas of Mozart are in the public domain, but if I make a new record of Don Giovanni I will have a copyright on this record. I suppose it is the same for the Luxemburgish coats of arms: this law say they are free of copyright, but when I make a drawing I am the owner of this drawing and can put a license on it.

In this case, it is not very important because the license I am speaking of is a free license, which is a basic of Wikipedia, but I wanted to make you realise that when you change the license on my drawings you — in a way — are stealing my right on my own creation. Anyway, I suggest you modify the text which appears on your license to make it clearer, and that you add your license to mine if you like but without deleteing mine.

Thanks in advance, Bruno Vallette 19:59, 24 February 2007 (UTC)

It is not the case that "when I make a drawing I am the owner of this drawing and can put a license on it." Recordings as such are protected by laws different from copyright. Mozart's work is in the public domain, but recordings are protected indepent from copyright for 70 years from publication (varies from country to country). There is no equivalent protection for reproductions, for good reasons. --Rtc 20:50, 24 February 2007 (UTC)

These changes are a serious problem, what you did was actually illegal, I only checked a few of Spanish Inquisition's Luxembourg coat of arms. These are not free images in any respect. These are the intellectual property of Spanish Inquisition, only he could place them in the public domain. I recommend you revert your changes ASAP. And as Bruno already explained, the law cited only applies to national emblems, even in that case it does not apply to graphic interpretations but to it's and use (one cannot claim property over the coat of arms itself, but then that's common to most other coats of arms) etc.--Caranorn 12:37, 25 February 2007 (UTC)

Please stop to threat me, what I did wasn’t “illegal” in any way. I’d appreciate it, if this discussion wouldn’t take place on several pages. Thank you. --Polarlys 14:11, 25 February 2007 (UTC)

Ich habe zu keinem Zeitpunkt gedroht, ich habe sogar klar gemacht dass ich nicht drohe. Ich schreibe nun hier deutsch um klar zu stellen dass ich auch verstanden werde. Und natürlich ist die unbefugte Entfernung von Lizenz Angaben illegal.--Caranorn 14:28, 25 February 2007 (UTC)

Nicht, wenn jemand ein unhaltbares Copyright an diesen Bildern für sich in Anspruch nimmt. Es ist eine Farce, wenn jemand ein Wappen nutzen will, was in vergleichbarer Form seit langer Zeit besteht, selbiges aber mit GFDL etc. lizensiert ist. --Polarlys 14:31, 25 February 2007 (UTC)

Das Bild besteht nicht seit langer Zeit, sondern nur dessen Beschreibung oder Idee. Natürlich ist damit das neuzeitliche Bild Urheberechtlich geschützt. Ansonsten geht die Diskussion ja jetzt unter Commons:Administrators' noticeboard weiter.--Caranorn 14:51, 25 February 2007 (UTC)

Category:Coats of arms of Luxembourg

(copied from / discussion effectuée sur User_talk:Rtc#Category:Coats_of_arms_of_Luxembourg)

Hallo Rtc!

Die Wappen in der o.g. Kategorie beherbergen neben einem Copy-and-Paste-Baustein meist auch noch eine Creative-Commons-Lizenz und/oder GFDL (Beispiel: Image:Coat_of_arms_Grand_Duchy_of_Luxembourg_small.png) Letztgenannte Lizenzenkönnte man doch streichen? Wie geht man hier sowas an, selber machen, Bot beauftrtagen, symbolische Löschdiskussion? Wäre der verbleibende Baustein im konkreten Fall ausreichend? Grüße, --Polarlys 14:36, 24 February 2007 (UTC)

Hallo Polarlys, was das Urheberrecht bei Wappen betrifft, gibt es, so weit es die Praxis betrifft, nur zwei Möglichkeiten: Entweder das Wappen ist sowieso PD – oder nicht, dann wird aus den natürlichen Interessen des Rechteinhabers heraus dafür auch keine freie Lizenz erteilt werden. In jedem praktischen Fall ist also bei Wappen die Angabe eines Lizenzschilds, das nicht auf PD lautet, falsch, und kann nicht nur gestrichen werden, sondern soll sogar. In vielen Fällen sind die Wappen PD und das Schild ist daher nicht korrekt, in vielen anderen Fällen gibt es für das Wappen keine Lizenz und der Hochlader ist dem ebenso alten wie falschen Mythos erlegen, dass Abzeichnen erlaubt ist und dass dadurch eine völlig neues Urheberrecht entsteht, das wieder neu lizensiert werden kann – grob gesagt, der Leistungsanteil des Zeichnens, der urheberrechtlich irrelevant ist, wird mit dem Schöpfungsanteil verwechselt. Unabhängig davon sollte bei Wappen natürlich äußerst deutlich auf die nicht-urheberrechtlichen Beschränkungen hingewiesen werden. (Bezüglich Wappenrecht ist die Nutzung in der Wikipedia ja analog zu Markenzeichen unproblematisch, merkwürdigerweise scheint das hier niemand einsehen zu wollen, so dass diesbezüglich ein ziemlich irrationaler Unterschied gemacht wird.) --Rtc 15:40, 24 February 2007 (UTC)

I hope you speak English. My German is very poor, but I think this discussion is about the license that may be put on coats of arms. If my opinion is of interest to you, I disagree with the massive change of license on drawings of Luxemburgish coats of arms. See my complaint on User_talk:Polarlys#Wrong license ?. Best regards, Bruno Vallette 20:14, 24 February 2007 (UTC)

It is okay if you disagree with the change, as long as you accept that it will stay that way. We cannot accept such bogus and dishonest copyright claims. --Rtc 20:52, 24 February 2007 (UTC)

I am sorry you misunderstood me. I obviously did not claim any copyright since I chose a free license. But it seems to me that replacing this Wiki-official GFDL/CC license by your Luxemburgish-personal license is «bogus and dishonest». But you do not seem in the mood to modify your point of view, so this discussion is useless. Luxembourg will not have any difficulty to find other and much more honest painters than me for its coats of arms. Farewell, Bruno Vallette 22:06, 24 February 2007 (UTC)

There is no „Wiki-official GFDL/CC“. If I want to use a coat of arms (created several hundred years ago for the first time), there is absolutely no need to refer to someone who recreated this insignia today. You have no right to limit the use of such an insignia, independent from any licence. --Polarlys 22:26, 24 February 2007 (UTC)

A license is a permission to do something that would otherwise be forbidden by copyright law. Thus, by using a license, be it GFDL, be it CC, be it whatever, you are claiming copyright. That you are claiming only a 'little' copyright (by giving a free license) does not change anything. The copyright status is no basis for negotiation—either the work is copyrighted, or it is not. There is no way to make a non-copyrighted work copyrighted by 'modestly' claiming 'only' a little copyright. There is no "Luxemburgish-personal" license, that is just a tag that describes the non-copyright legal restrictions that are present for these coas. It's your decision whether you want to contribute to the project, but please see that we are merely changing the pages to reflect the truth—the CC/GFDL tags are invalid by law, independent from my optionion (although my opinion is that law does it right concerning this), regardless of whether we remove them or not. --Rtc 22:56, 24 February 2007 (UTC)

You make a confusion between coat of arms and representations of a coat of arms. The law applies to the first, but did you even read it? Good night, anyway, Bruno Vallette 23:07, 24 February 2007 (UTC)

I am not confusing these two things, it's you who does that. The coat of arms may be copyrightable, the representation isn't, since it is mere skill and labour and contains no or only insignificant additional originality, which is not copyrightable. Simple as that... --Rtc 23:12, 24 February 2007 (UTC)

Commons:Help_desk#Am_I_free_to_choose_a_free_license? --Polarlys 02:47, 25 February 2007 (UTC)

Of course copyright applies to drawings and images. It's the specific image that's protected, not the original one. I would really like to know what laws you are basing those changes on. if necessary I can check with one or the other Luxembourgish lawyer friend as this is a serious issue (I'm not threatening legal action, so far none of my images are affected (even then I'd try to solve the problem first), though images I contributed to have been). I hope you will quickly revert the lot to their original status.

Note, I placed a request under Commons talk:Licensing#coats of arms concerning Luxembourg.--Caranorn 13:03, 25 February 2007 (UTC)

Of course copyright applies to drawings and images, but only to their creative content. It is not the specific image that is protected, but their creative content, and that is specified completely by the original image. Copying this original, or drawing it from a description, implies that at most mere design has taken place and no, or by far not enough new creative content is present to get the CoA reproduction copyrighted if the original wasn't. Please remove any bogus copyright claims from CoAs you created, too, or at least give us a list, so we can do. Thanks. --Rtc 13:41, 25 February 2007 (UTC)

Am I free to choose a free license?

(copied from / discussion effectuée sur Commons:Help_desk_archive/2007Mar#Am_I_free_to_choose_a_free_license?)

I draw some coats of arms to illustrate the wikipedia pages about cities. I usually upload them with the GFDL/CC license. I found today that an other user replaced systematically the license, on every drawing of a coat of arms of Luxembourg, with one of his own creation specifically dedicated to Luxemburgish coats of arms. See for instance Bascharage, and my discussion with an other user here. Is it normal? What is the use to ask me to choose a license when I upload a picture of my own if somebody else can freely change this license? Bruno Vallette 22:31, 24 February 2007 (UTC)

If what you are doing is making a exact copy, or attempting to do so, of someone else's design (such as a coat of arms), you are not creating copyrightable content. Based on your recent contribution history, it looks to me that you've made SVG versions of various pre-existing Luxembourgish coats-of-arms; doing so does not give you any copyright interest and no say in the applicable license. The license under which the content may be used will be determined entirely by the relevant law applicable to Luxembourgish coats-of-arms (of which I am no expert, but there are others on Commons who are). Your efforts to create the SVGs are appreciated, but you do not thereby acquire droit d'auteur; you have no copyright interest in the resulting representation, and no authority to alter the conditions under which the image in question may be used. Kelly Martin 23:19, 24 February 2007 (UTC)

Thanks for your answer. Three remarks:

• I am not making an exact copy of someone else's design, but generally making a drawing of my own from a mere description. Sometimes I have a model, but it is very rare I make an exact copy. Compare for instance Image:Blason_ville_lux_Lac-de-la-Haute-Sûre.svg and [1] and you will see I improved a lot the design of the pike.
• If you did read the Luxembourgish law which they refer to, you probably found it is unrelevant to coats of arms of cities (it is only about national emblems).
• I obviously did not claim any droit d'auteur since I chose a free license. I just do not understand what these free licenses mean if someone else can replace them by something else without my agreement.

Bruno Vallette 23:41, 24 February 2007 (UTC)

It looks to me that there is sufficient creative expression involved here that you probably are entitled to claim a copyright. If that is the case, then you are entitled to decide the licensing, and it was inappropriate for another editor to alter that. Kelly Martin 01:12, 25 February 2007 (UTC)

To clarify a common misunderstanding: copyright (droit d'auteur) is necessary for a free license; If you do not have the copyright, you can not specify a license. IN this case, that means:

• If your work is creative, then you have the copyright automatically and, in the EU, permanently. You can then share this right, using a free license.
• If you are creating mere reproductions, or a purly technical representation of something described by text, then there is no creativity involved, and you gain no copyright. In this case, you cannot apply any license, free or not. The images would be PD (if the original design is PD), and should be tagged as such.

So, AFAIK, you can claim copyright for making a graphical representation of an elaborate design, if you didn't reproduce/immitate an existing graphical representation. For very simple coats of arms (or a simple flag, like of Germany, for example), no copyright would apply. -- Duesentrieb ⇌ 01:39, 25 February 2007 (UTC)

This is a fuzzy derivative work case. The original coat-of-arms is subject to whatever copyright terms apply to coats-of-arms, whereas your nontrivial original modifications are subject to your own choice of license. Some licenses restrict the license of derivative works, like copyleft ones. Do we have a template for derivative works specifying both licenses? Dcoetzee 02:56, 25 February 2007 (UTC)

The coats of arms in this case are probably in the public domain; if this is the case, he is free to choose whatever license he wants. In such cases, I normally indicate in a comment on the image that the included content is in the public domain for whatever reason, without using a template. We don't seem to have templates for indicating the copyright status of incorporated works. Kelly Martin 03:14, 25 February 2007 (UTC)

Thanks again for all your answers.

The border between a creative work and a purely technical representation seems difficult to define clearly, since — at least — the shape of the shield, the tincture (azure is blue, but it can be all the panel of blue, from dark to light) and the precise dimensions of the different objects can be freely chosen by the drawer, in some measure.

Anyway, when I have good reasons to consider that the work is creative, how can I avoid that an other editor alter the license I chose? The most natural way should be to talk with this editor, but my experience of yesterday showed me that it is not always possible to discuss calmly with someone who is so sure of himself without anything serious to support his opinion. Bruno Vallette 11:15, 25 February 2007 (UTC)

Hello, certainly drawing a coa from description does not involve sufficient creativity. In fact, CoAs are a very good example of far copyright goes: What may be protected is the essence of the CoA that is represented by the description. How to color it and how to draw the details is not creative, but mere design. It may require a lot of skill and labour, but mere skill and labour, as well as mere design, is not copyrightable. Your work may enjoy automatic design protection, such as granted in the EU for three years after publication, but CC-by-sa and GFDL are copyright licenses that are not applicable to design. Comepare this to the situation with typefaces. They are not copyrighted either, since they are mere design of existing symbols and letters. PS: "purely technical representation" can of course be copyrighted! Please abandon your myths about copyright. --Rtc 11:51, 25 February 2007 (UTC)

Do we have to split this discussion over so many pages? See Commons talk:Licensing#coats of arms concerning Luxembourg. Lupo 08:17, 27 February 2007 (UTC)

Coats of arms concerning Luxembourg

(copied from / discussion effectuée sur Commons_talk:Licensing#coats_of_arms_concerning_Luxembourg)

Hello, User:Polarlys replaced the license tags on a large number of coat of arms images concerning Luxembourg. Special:Contributions/Polarlys He is basing these changes on a law that clearly does not apply (the law about national emblems, which gives special status to the use, not image of certain flags and coats of arms). In essence he denies anyone any sort of rights on coats of arms related to Luxembourg. From my point of view the images have to be reverted to whatever license they had before (most cases I believe double license). I only learned of these changes today (as none of my images are affected though I contributed to user:Spanish Inquisition's creations with advice on composition...). I'm not sure how to proceed at this point. I just now asked Polarlys to revert his changes (my tone was probably too harsh, but what he did was essentially illegal). This is also a topic on the French wikipedia Projet Blasons where I learned of the problem. Note: I believe Spanish Inquisition is not reachable at present, at least I sent him some requests a while ago on his English wikipedia account without reply... --Caranorn 12:53, 25 February 2007 (UTC)

Caranorn, rather than posting this here, I suggest you copy your note to the Commons:Administrators' noticeboard. You'll likely get more help. —RP88 13:10, 25 February 2007 (UTC)

Nonetheless, I agree with you :-) If Polarlys believes the copyright licenses assigned to all of those coat of arms images should be PD-ineligible for some reason, he shouldn't just strip off the licenses applied by the authors, he instead should instead take it with the uploaders or even nominate them at Commons:Deletion requests. I note that there is even a bit of edit "ping pong" going on where he is marking arms PD-ineligible, the authors attempt to restore their licenses, and he then changes them back to PD-ineligible. —RP88 13:28, 25 February 2007 (UTC)

Polarlys corrects the objectively incorrect tags about the legal status of these pictures. The uploaders, even if they drew them, do not have anything to say about these images concerning copyright, so there is really nothing to discuss with them. They simply have to understand their misunderstanding about copyright, and all is well. --Rtc 13:45, 25 February 2007 (UTC)

It would be easier to «understand our misunderstanding» if you gave us any good reason to follow your opinion, which you do not. Your only reason is «because it is the law»; prove it, please; give us an applicable text of law stating that when we draw a picture of our own of a coat of arms, from a mere description, we do not have the right to upload it with a GFDL/CC license. Bruno Vallette 20:19, 25 February 2007 (UTC)

Go ahead and set a good example by proving the opposite. It is you who claims to have exclusive rights on these pictures, not me. --Rtc 21:38, 25 February 2007 (UTC)

Actually you went ahead and changed licenses (well actually Polarlys did after consulting with you) and claim that the people who created those images have no rights to them and therefore cannot determine a license to publish the image under. So I think the burden of proof at this point is on your side. If you are so familiar with copyright laws (Luxembourgish for some images, French for others) it shouldn't be too hard to provide some links for others to verify your claims.--Caranorn 22:02, 25 February 2007 (UTC)

It is a very basic fact of copyright law that it protects works, not design. I had this discussion a thousand times, and I won't do it again. Search for "typeface copyright", which is the most prominent part of the "copyright for design" controversy, if you want to know more about it. Note that even the CoAs as such are applied art, not fine art. While copyright for CoAs as such already requires a high amount of creativity, to prevent design patent registration and fees from being circumvented, that amount should be in practice insurmountable for mere design of some of the elements of existing CoAs. --Rtc 22:43, 25 February 2007 (UTC)

First of all, national legislations seem to vary greatly concerning copyright on design (and in particular with your example of typeface which is not copyrightable in the US but seems to be copyrightable in the UK, France and Germany). Secondly it is you who claims that a graphical representation of a coat of arms is design (which does not fit any definition of design I know) and not graphics (it doesn't even matter whether it's art or not) which are protected by most copyright laws. In these cases the design would be the blasoning (though to be more precise these blasonings are protected by much older laws and principles in most countries), the image is a graphic representation which can be protected, considering how any image of a coat of arms involves a lot of interpretation it is also original which is definitely protectable. Finally, instead of sending people to chase straws to disprove your point you should yourself show a minimum of good will and support your own arguments with proof. The fact that you don't could be seen as an indication that no such proof exists. In which case all you are doing is pushing POV.

I really don't appreciate that I've had to research copyright for several hours today to disprove your theory that images of coats of arms are not copyrightable and thereby such images cannot be licensed by their author.--Caranorn 23:36, 25 February 2007 (UTC)

You did not disprove anything. You are right that design is copyrightable in UK and other commonwealth countries with the "sweat of the brow" doctrine, but commons clearly has spoken out against accepting the copyright anomalies of all countries, and this anomaly of UK and others is one of the things not accepted here. In France and Germany as well as about any other country, design, except works of applied art (that's design that surpasses the average clearly) is not copyrightable. It may be registered as design patents there, for a fee. Secondly, it is you who claims that a graphical representation of a coat of arms is not design. Parts of coat of arms are design in the core sense of the word, since they are utility articles serving as a purpose: To be used to decorate coat of arms. Just in the same way as a typeface serves the purpose of printing letters. All that you are doing by making a coa drawing from a description is to work out the design of the actual elements, just the same as working out the design of letters if you are doing a font. And please accept that I am not claiming that I have proof for what I say, but I am claiming that it is true what I say. I suggest you correct the license tags of your image voluntarily and we stop this really boring discussion now. PS: Please read Wikipedia:Copyright on emblems in case you didn't do already. PPS: The point "An emblazon of a coat of arms is thus always copyrightable in itself as an original work." that it tries to make is IMO incorrect or at least misleading—I am discussing this with the author. --Rtc 00:18, 26 February 2007 (UTC)

Are you joking? You refer yourself to a page where it is clearly established that you are wrong, with a detailed explaination of the reasons of this copyrightability (very near of the reasons I used before), and you want to use it as an argument in your favour. At least if you are discussing this point with the author of the article, you should wait that this point is decided in your favour before altering or demanding the modification of the license tags. I agree with you: this discussion is very boring. But who began? Bruno Vallette 12:55, 26 February 2007 (UTC)

It is not established on this page that I am wrong. It is established by me that the page, while certainly containing a good overall summary, is wrong or at least misleading. It does not consider the character of applied art that is present in the transfer of a heraldic description into a drawing in most practical cases. I think we agree that one is not free to draw the CoA's elements in any way. What you draw is mostly constrained by the traditional appearance of the element you are drawing, and your own decisions are constrained to subtleties in the shape. There is also no expression of thoughts present in this process, but purely aesthetic judgements that do not transcend the visible (in contrast to a text or a painting, who have such a content, a 'message'). That's mere design exactly parallel to typefaces, where you also have the basic form of the letter, and where you are merely deciding upon subtleties. --Rtc 13:29, 26 February 2007 (UTC)

(de-indent) Sorry, Rtc. Where have you established that COAs were works of applied art? I propose that we keep this discussion in one place (namely here). For the part "discussing this with the author", see en:User talk:Lupo. It may not be my day today, but still... I don't see why graphical representations of COAs should be not copyrightable. Lupo 15:20, 26 February 2007 (UTC)

The part about establishing was a joke. Of course I have not "established" my position, it was a humorous hint that the article hasn't either. Please note that I do not claim that COAs are works of applied art – I claim the opposite, since a work of applied art is copyrightable! But an utility article that contains applied art is not yet automatically a work of applied art. For a utility article to become a work, it needs to have additional creativity clearly above the average. Applied art is the only kind of art where this is so; it's an anomaly in copyright law that is caused by the existence of design patent law and its applicability as a lex specialis. This is so since nobody would register and pay for design patents if the average design would enjoy copyright protection. --Rtc 16:14, 26 February 2007 (UTC)

I generally agree with the Wikipedia:Copyright on emblems article. Though I should note that that is an article specifically dealing with US law. The case here is at least in part governed my Luxembourgish and French law as these are 1) the residences of the people who drew the coats of arms in question, thereby the places to determine droit d'auteur. 2) The national and communal coats of arms of Luxembourg are defined by law (the blason, while the laws are always accompanied by an illustration, the laws do specify that the text is binding, not the image (in several cases errors can be found in the illustrations)). But back to the more general considerations which are probably common to most laws on copyright. I think the originality of the form of the shield (in most cases, I know of a few heraldists who swear that shield shape is predefined, though these heraldists form a very small minority contradicting the findings of more renowned heraldists and heraldic societies) is a very important factor, in almost every case the heraldic artist is free to chose the form of the shield (it doesn't even have to be a shield, in many ways flags are heraldic devices, though the modern standards would remove any originality from their shapes), that shape again is a determining factor (badly assembled coats of arms can include charges that are in contradiction to the shield form, which while an estethic error is in itself an indication of originality) for the shape and size of any charges placed on the shield... An example I gave to Bruno yesterday on french wikipedia, by close study of many coats of arms found on the internet I can identify the heraldic artist who drew them, I do this by looking at shield shape, form and placement of charges, use of shadows etc. That is also how I was able to determine the origin of a large number of coats of arms circulating on various language editions of wikipedia and which were in violation of existing copyrights (I could verify copyright on books the coats of arms were originally published in, until now I was certain I could also verify copyright of the artist, the current discussion has made me wonder about the second part though I still have seen no argument to truly invalidate that notion), one of the reasons why I started a personal project to replace all coats of arms of Luxembourgish municipalities (which project Spanish Inquisition then took over). Now those same images are in question and will without proper license (as the 1993 law is clearly not applicable) be free for deletion. To the point that today I've been asked to backup the images and upload them to the luxembourgish language wikipedia (I plan to do the backup (the original license which still applies as far as I'm concerned permits that), but believe the images will eventually be salvaged so there is no need to create duplicate uploads).

Long post and possibly somewhat confusing (some health problems I fear are interfering). But in short, first local laws have to be considered as technically (no one is planning to sue anyone or anything, therefore technical) local courts would have jurisdiction. Secondly the principle of originality is clearly met by the form of the heraldic shield alone. Thirdly the current situation is bad as a large number of coats of arms are now without license as proper procedures were not met (removal of licenses, correct or not does not equal public domain).--Caranorn 21:25, 26 February 2007 (UTC)

Actually, Image:Coat of arms Grand Duchy of Luxembourg large.png is interesting. This graphic representation differs quite a bit from the official version. It appears to me that by article 10(8) of the Copyright law of Luxembourg, official publications (such as laws, or their publication in the Mémorials) are not copyrighted. (I'm not sure, though; the phrasing is a bit strange ("L'auteur ne peut interdire: ... les actes officielles ...").) That would surely place the official reference graphics from the 1993 law on national emblems in the public domain. (Subject to the usual trademark-related restrictions on commercial uses and on misrepresentations that generally apply to national emblems, but that are unrelated to copyright per se.) SO why don't we use this official reference graphics? Lupo 08:13, 27 February 2007 (UTC)

But that same article ends in Toutefois, l'auteur a seul le droit de tirer à part ou de réunir en receuil ses discours. (rough translation: Neverless, the author alone has the right to separate or combine his speeches in a collection). This might apply only to speeches (in parliament for instance) but I'm not certain. I'd interprete it generally that in this case the exact image cannot be employed separately from the text of the law, except of course with the authorisation of the author. Another note, the images in the 1993 law are misguiding, they are only included as examples, the law clearly states that the law (that is the blason) has legal effect. So the images attached to that law have no more legal importance then the current image here.--Caranorn 12:53, 27 February 2007 (UTC)

Sure, one can draw this COA in many ways. The point was that if that image was PD because it was published as a reference image in the law (as is the case with the German Bundesdienstflagge), it could be used as a PD image of that COA. Lupo 15:07, 27 February 2007 (UTC)

crosspost: coats of arms concerning Luxembourg

(copied from / discussion effectuée sur Commons:Administrators'_noticeboard#crosspost:_coats_of_arms_concerning_Luxembourg)

User:RP88 asked that I post the following note here rather then at Commons talk:Licensing#coats of arms concerning Luxembourg, so this is essentially a crosspost.--Caranorn 13:56, 25 February 2007 (UTC)

Hello,

User:Polarlys replaced the license tags on a large number of coat of arms images concerning Luxembourg. Special:Contributions/Polarlys He is basing these changes on a law that clearly does not apply (the law about national emblems, which gives special status to the use, not image of certain flags and coats of arms). In essence he denies anyone any sort of rights on coats of arms related to Luxembourg. From my point of view the images have to be reverted to whatever license they had before (most cases I believe double license). I only learned of these changes today (as none of my images are affected though I contributed to user:Spanish Inquisition's creations with advice on composition...).

I'm not sure how to proceed at this point. I just now asked Polarlys to revert his changes (my tone was probably too harsh, but what he did was essentially illegal). This is also a topic on the French wikipedia Projet Blasons where I learned of the problem.

Note: I believe Spanish Inquisition is not reachable at present, at least I sent him some requests a while ago on his English wikipedia account without reply...

--Caranorn 12:53, 25 February 2007 (UTC)

See User_talk:Rtc#Category:Coats_of_arms_of_Luxembourg, Commons_talk:Licensing#coats_of_arms_concerning_Luxembourg, Commons:Help_desk#Am_I_free_to_choose_a_free_license?. --Polarlys 14:03, 25 February 2007 (UTC)

Caranorn's description is entriely incorrect. There are people drawing existing coas from descriptions and claiming copyright for that, however of course they may not claim copyright on something of which they are not authors. What they do is mere design, and there is only skill and labour involved, no creativity. So Polarlys removed the license tags because the uploaders do not own a copyright and can thus not give a license. The luxembourg tag is entirely unrelated, this tag was added because it is believed that it correctly describes the legal situations with the CoAs as such. If this tag is incorrect, it needs to be removed or corrected, but by no means it being incorrect in any way implies that the bogus copyright claims are correct. --Rtc 14:13, 25 February 2007 (UTC)

Okay, I now realize that the CoA tag (which indeed is inappropriate for most of the images it was applied to) is a separate issue and should not be handled here. On the other hand the question of what is copyrightable and thereby who has the right to add/change a license is the issue here. 1) From what I can tell by now the issue of images (graphic art) is not explicitly covered in Luxembourgish law (French law would also have to be checked as I assume Bruno's drawings were made in France). 2) International conventions seem to attribute copyright (droits d'auteur) not only to the original creator but also to those who modify a work of art. It should be noted that the work of art is the image, not it's description (blason).

Finally, I'm not a lawyer and usually don't have to deal with copyright law (droits d'auteur again as that's the applicable concept here). On the other hand this is a very important issue as if this process is maintained to remove license tags from images (without informing the author) continues few people will provide such images anymore. Essentially it's the death of all coats of arms projects as these involve a lot of work (research, building up data bases (another note, image components in the french Projet Blason database are all licensed, those image components could no longer be used on wikipedia (wikimedia) if the new coats of arms created with them are not using compatible licenses), assembly/drawing etc.) and legal insecurity will be greatly damaging. I personally have no problem waving certain rights to my creations, but I do this voluntarily.--Caranorn 14:47, 25 February 2007 (UTC)

See, it is not about unvoluntarily weaving rights -- there are no rights in the first place. Compare this to typeface design (and nothing else is slight variation of symbols used in the CoAs): It also involves a lot of skill and labour (or "a lot of work (research, building up data bases)", as you call it), but certainly mere skill and labour, and thus typefaces, are not copyrightable. If you want protection for design, you have to apply for a design patent in any country in which you want to have protection for your design, and pay for it for each single item (and pay again after a period of time to keep it). This is the old controversial issue about applied art being copyrightable or not, and while designers still see it as hell of an injustice that their three dashes and two dots need to be paid for a lot of money to enjoy protection for 25 years max, while every book and every painting enjoys an automatic, free copyright protection for 70 pma, jurisdiction has for good rason ignored the design lobby and not granted copyright for design. --Rtc 15:06, 25 February 2007 (UTC)

I think Polarlys and Rtc are right here, but Polarlys didn't use the right approved tag. Using the example of Image:Blason ville lux Bascharage.svg, if we look at the source materials cited, specifically International Civic Heraldry-Luxembourg-BASCHARAGE, we see "The arms are identical to the arms of Raoul of Sterpenich, who was Lord of Bascharage in the 13th century as a vassal of count Henry V of Luxembourg." To my mind, that makes this image free of copyright, as the copyright would have expired at most 70 years after the author's death, which would have been at the latest 1470 (produced the work by 1300, died by 1400, add 70 years for expiration). I believe the appropriate template for such a situation is "{{PD-old}} - for works in the public domain because its copyright has expired. This applies to the European Union, the United States and those countries with a copyright term of life of the author plus 70 years." I haven't seen any Luxembourgish copyright tags, and none of the French copyright tags appear to apply.

I am reproducing the box about Luxembourgish legislation here for ease of discussion:

According to Luxembourgish legislation, law of September 16, 1993 (text in French), the coat of arms of the Grand Duchy of Luxembourg can be used without restraint if not for the following cases: fraud commercial, industrial, professional, adverstising purposes with exception of those defined by law.

The text in that box does not have any bearing on the expired copyrights of an unknown artist of the 13th Century in the Grand Duchy of Luxembourg, as the image in question is definitely not "the coat of arms of the Grand Duchy of Luxembourg" (which implies that there is only one copyright-protected "coat of arms of the Grand Duchy of Luxembourg", nothing for the coats of arms of its communes and towns). Once the copyrights expired, they expired. There's no getting them back. The work is now in the public domain, and has been so since at the latest 1470. Of course, as suggested by {{PD-Coa}} and "Note: very few coats of arms are PD. Be sure to check." on Copyright tags#General, I would be open to any evidence of an English language translation of that legislation, and all supporting legislation going back to the 13th Century, that supports continuous copyright protection for such works.

My conclusions based on what we have in hand at the moment:

1. That box should be removed from that and similar current pages (including Image:Coat of arms bascharage luxbrg.png), and should not be put on similar future pages.
2. {{PD-old}} should be put in that box's place on that and similar current and future pages.
3. User:Bruno Vallette should be more careful about populating data in {{Blason-fr-en}}, specifically using more specific URLs and correctly populating the "en"-related sections.
4. Research should be done (in any appropriate language, presumably French) into all legislation going back to the 13th Century, that supports continuous copyright protection for such works. I wish good luck to any researcher who attempts this task.
5. Whether or not the images of the coats of arms of everything in the Grand Duchy of Luxembourg but the "the coat of arms of the Grand Duchy of Luxembourg" itself is still copyrighted, the results of that research should be presented here, preferably translated into English (sorry, I and many here don't read French, and translation into English would allow more translators to translate it into other languages), and made into one or more appropriate templates.

-- Jeff G. 01:07, 26 February 2007 (UTC)

Lupo's essay at en:Wikipedia:Copyright on emblems currently holds the position that "An emblazon of a coat of arms is thus always copyrightable in itself as an original work" because it "often include many non-geometric elements that leave the author of an emblazon considerable freedom to express his creativity to produce an original work". I am currently discussing the issue with him, and we should postpone the discussion here until that's finished. --Rtc 12:26, 26 February 2007 (UTC)

I'll comment here that the Copyright Council, of legal experts, in Finland disagrees on emblazons. Therefore we have {{PD-Coa-Finland}}. The originality of the blazon is not commented as they are public domain as desicions of a public body. Samulili 18:07, 1 March 2007 (UTC)

Thanks to references given on Commons:Licencing, here is what I found in the law about our question, regarding in particular Luxembourgish coats of arms but more generally all drawings of coats of arms. The French law seems to me very clear and developed, and the Berne convention is applicable nearly all over the world.

1 - (France) Intellectual property code. Part I, Book I : Copyright

• Article L111-1: «The author of a work of the mind shall enjoy in that work, by the mere fact of its creation, an exclusive incorporeal property right which shall be enforceable against all persons.»
• Article L111-2: «A work shall be deemed to have been created, irrespective of any public disclosure, by the mere fact of realization of the author’s concept, even if incomplete.»
• Article L112-1: «The provisions of this Code shall protect the rights of authors in all works of the mind, whatever their kind, form of expression, merit or purpose.»
• Article L112-2: «The following, in particular, shall be considered works of the mind within the meaning of this Code: [...]
  • 7°.works of drawing, painting, architecture, sculpture, engraving and lithography;
  • 8°.graphical and typographical works; [...]»
• Article L121-2: «The author alone shall have the right to divulge his work. He shall determine the method of disclosure and shall fix the conditions thereof [...].»

2 - Berne convention. Article 2 (protected works) :

• «(1) The expression “literary and artistic works” shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as [...] works of drawing, painting, [...].
• (6) The works mentioned in this Article shall enjoy protection in all countries of the Union. This protection shall operate for the benefit of the author and his successors in title.»

Nota bene: «all countries of the Union» includes obviously Luxembourg.

There is no consideration here of whether the model of the drawing is centuries old: the mere fact of realizing a work of drawing gives to its author a property right.

Unless our opponents find more applicable texts against the right for drawers of coats of arms to choose the free licence they put when they upload a drawing of their own, I think the debate should be closed in our favour. Dont't you? Bruno Vallette 19:13, 1 March 2007 (UTC)

Sorry Bruno, but thse are simply some very basic, standard copyright regulations you cite that are in no way related to the issues here. They talk about works, and they talk about drawings and paintings. I did argue exactly that a CoA is not a work, neither a drawing, nor a painting in the first place. Please approach the issue in a less shallow way and give some real argument with explicit references to CoAs. I am going to make some allowances about the issue (though certainly not because of your poor arguments): Since the question whether CoA decorations constitute applied art is unresolved, I'd accept until further if we have a look at these CoAs one by one and decide whether they are eligible for copyright. For example I clearly do not consider Image:Coat_of_arms_preizerdaul_luxbrg.png or Image:Coat_of_arms_vianden_luxbrg.png as copyrightable in any case, regardless of whether the elements are applied art or drawings, while I do not completely reject a copyright claim on Image:Coat of arms troisvierges luxbrg.png, should the human being not have been drawn from a template. --Rtc 01:08, 2 March 2007 (UTC)

And until you prove that there is a specific law for Coats of arms, these very basic standard copyright regulations are the only objective facts we have. And they are against you. I do not think I can find any law with explicit reference to COAs because there is no reason why the common law would not apply in that case. That seems to be your opinion too since you did not look for any yourself (you asked that we began, but you apparently do not intend to follow).

About what you say about the drawing of a COA which would not be a work nor a drawing at all, it is simply ridiculous. Please be consistent: give legal arguments and not only private and unfounded opinions.Bruno Vallette 09:00, 2 March 2007 (UTC)

You just don't get it. It is irrelevant whether I can prove my position (and I explicitly say that I can't and I won't), since you cannot do either. It is only relevant whether what I say is true, and so far I don't see why it shouldn't be. These very basic standard copyright regulations you cite are by no means against me, as you claim. You should make yourself accustomed better with copyright, especially with the part at http://www.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000102----000-notes.html that says that "the design of a useful article * * * shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independ­ently of, the utilitarian aspects of the article", which is exactly not the case with CoA decorations, since they are essential for the utilitarian function of the CoA (namely, to represent some body). "The test of separability and independence from 'the utilitarian aspects of the article' does not depend upon the nature of the design—that is, even if the appearance of an article is determined by aesthetic (as opposed to functional) considerations, only elements, if any, which can be identified separately from the useful article as such are copyrightable." (emphasized by me) --Rtc 12:05, 2 March 2007 (UTC)

Copy of the relevant entries in the article Rtc linked to above (no division into numbered sections, else I'd just note those):

• "Correspondingly, the definition of “pictorial, graphic, and sculptural works” carries with it no implied criterion of artistic taste, aesthetic value, or intrinsic quality. The term is intended to comprise not only “works of art” in the traditional sense but also works of graphic art and illustration, art reproductions, plans and drawings, photographs and reproductions of them, maps, charts, globes, and other cartographic works, works of these kinds intended for use in advertising and commerce, and works of “applied art.” There is no intention whatever to narrow the scope of the subject matter now characterized in section 5 (k) [section 5(k) of former title 17] as “prints or labels used for articles of merchandise.” However, since this terminology suggests the material object in which a work is embodied rather than the work itself, the bill does not mention this category separately.
• In accordance with the Supreme Court’s decision in Mazer v. Stein, 347 U.S. 201 (1954) [74 S.Ct. 460, 98 L. Ed. 630, rehearing denied 74 S.Ct. 637, 347 U.S. 949, 98 L.Ed. 1096], works of “applied art” encompass all original pictorial, graphic, and sculptural works that are intended to be or have been embodied in useful articles, regardless of factors such as mass production, commercial exploitation, and the potential availability of design patent protection. The scope of exclusive rights in these works is given special treatment in section 113, to be discussed below.
• The Committee has added language to the definition of “pictorial, graphic, and sculptural works” in an effort to make clearer the distinction between works of applied art protectable under the bill and industrial designs not subject to copyright protection. The declaration that “pictorial, graphic, and sculptural works” include “works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned” is classic language; it is drawn from Copyright Office regulations promulgated in the 1940’s and expressly endorsed by the Supreme Court in the Mazer case.
• The second part of the amendment states that “the design of a useful article * * * shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independ­ently of, the utilitarian aspects of the article.” A “useful article” is defined as “an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.” This part of the amendment is an adaptation of language added to the Copyright Office Regulations in the mid-1950’s in an effort to implement the Supreme Court’s decision in the Mazer case.
• In adopting this amendatory language, the Committee is seeking to draw as clear a line as possible between copyrightable works of applied art and uncopy­righted works of industrial design. A two-dimensional painting, drawing, or graphic work is still capable of being identified as such when it is printed on or applied to utilitarian articles such as textile fabrics, wallpaper, containers, and the like. The same is true when a statue or carving is used to embellish an industrial product or, as in the Mazer case, is incorporated into a product without losing its ability to exist independently as a work of art. On the other hand, although the shape of an industrial product may be aesthetically satisfying and valuable, the Committee’s intention is not to offer it copyright protection under the bill. Unless the shape of an automobile, airplane, ladies’ dress, food processor, television set, or any other industrial product contains some element that, physically or conceptually, can be identified as separable from the utilitarian aspects of that article, the design would not be copyrighted under the bill. The test of separability and independence from “the utilitarian aspects of the article” does not depend upon the nature of the design—that is, even if the appearance of an article is determined by aesthetic (as opposed to functional) considerations, only elements, if any, which can be identified separately from the useful article as such are copyrightable. And, even if the three-dimensional design contains some such element (for example, a carving on the back of a chair or a floral relief design on silver flatware), copyright protection would extend only to that element, and would not cover the over-all configuration of the utilitarian article as such."

In short, Rtc thinks the artisanal drawing of a coat of arms is comparable to an industrially manufactured t-shirt imprinted with the image of a car. I don't think I have to say anything more. I should also note that all of the above, however good for our case (as it clearly contradicts Rtc's POV) is based on US law and is therefore not 100% applicable in our case. I should also like to once again state the point of this entire discussion. The question whether coats of arms can be copyrighted, therefore licensed. If the answer is yes, or there even is a small doubt, then Polarlys' edits have to be reversed as they then represent a breach of copyright. Therefore evidence that coats of arms cannot be copyrighted in Luxembourg, Belgium or France (all based on the same legal principles vs. the different approaches in the US and/or Germany) has to be presented by Rtc, Polarlys or anyone else who believes this to be the case. It was them who acted and removed licenses in an inappropriate fashion (without alerting the uploader or tagging the image first etc.).--Caranorn 12:47, 2 March 2007 (UTC)

I claim that the artisanal drawing of a coat of arms is exactly not comparable to an industrially manufactured t-shirt imprinted with the image of a car. The intrinsic utilitarian aspect of the t-shirt, to be used as clothing, is separate and independent from the image of a car. In contrast, the decorations of a CoA are not separate and independent from the CoA as such and its utilitarian function -- to represent a body. If I remove any element from a CoA, the CoA does not represent the same body anymore. And please stop using supid terms as "Rtc's POV" etc, and there is also no "evidence" to be presented. PS: It is not exclusively the law of Luxembourg, Belgium and France that is relevant, but the law of the countries that the CoAs are available in and that copyright restriction is claimed for. commons can be accessed from many countries, from the US as well as from Germany and France etc, so the law of Germany and the US is as relevant here as the law of Belgium, France and Luxembourg. --Rtc 13:56, 2 March 2007 (UTC)

I have to make one correction to my previous posts. Apparently Polarlys notified Spanish Inquisition of his plan to delete the licenses. I must have accidentally checked his english language wikipedia talk page for any messages. The rest of the problem remains, how a single editor, with the backing of another editor can go and remove licenses from the contributions of other editors. To this point neither has been able or willing to justify those actions with facts.--Caranorn 21:12, 2 March 2007 (UTC)

Wikipedia:Copyright on emblems

(copied from / discussion effectuée sur en:User_talk:Lupo#Wikipedia:Copyright_on_emblems)

Hi Lupo. You say there that "Coats of arms often include many non-geometric elements that leave the author of an emblazon considerable freedom to express his creativity to produce an original work. Examples of such non-geometric elements include animals and plants, but also crowns, banners, pinnacles, and even the shape of the shield itself, which is completely undefined in a blazon. An emblazon of a coat of arms is thus always copyrightable in itself as an original work. By extension, any drawing of a flag that shows a coat of arms is basically copyrightable." But doesn't the exact shape of the non-geometric elements fall into the realm of design and thus design patents, not copyright law, just as for typefaces ("The test of separability and independence from 'the utilitarian aspects of the article' does not depend upon the nature of the design—that is, even if the appearance of an article is determined by aesthetic (as opposed to functional) considerations [jewelry, typefaces—and CoA decorations?], only elements, if any, which can be identified separately from the useful article as such are copyrightable."[2])? Copyrightability would IMO only be given if there is clearly more creativity involved than the average design, enough for it to become a work of applied art. While I agree that it is possible in principle to draw CoAs in such a detailed that they surpass this border, I doubt very much that the average CoA can be considered an original work. --Rtc 00:45, 26 February 2007 (UTC)

I must admit that I never thought about whether COAs/Flags might fall into the category of "applied art". I think there are two questions to consider here: first, are COAs really "applied art"? Do they have a "utilitarian aspect" at all? I doubt it. Second, while flags may well have a "utilitarian aspect", an artistic design used on a flag can certainly exist and be identified independently from the utilitarian object, viz., the flag itself. See the commentary you linked: "In adopting this amendatory language, the Committee is seeking to draw as clear a line as possible between copyrightable works of applied art and uncopy­righted works of industrial design. A two-dimensional painting, drawing, or graphic work is still capable of being identified as such when it is printed on or applied to utilitarian articles such as textile fabrics, wallpaper, containers, and the like." COAs and such hardly are industrial design... Lupo 08:03, 26 February 2007 (UTC)

I am not so much refering to the CoAs as such being applied art. (Although that would of course be another interesting question—see for example the German case of Laufendes Auge that was decided to be applied art, such that, according to the BGH, design law applies as a lex specialis as long as the design is not clearly above the average, that is, as long as it is not yet a work of applied art. So in Germany, at least logos seem to fall into the realm of applied art; I suppose, because they serve the utilitarian function of distinctly representing something. This utilitarian function is clearly in the foreground. It is also completely fulfiled by the aestetic aspects of the logo; a logo without these elements does not serve its utilitarian purpose, in contrast to a t-shift with a picture on it. Thus even though the appearance of a logo is determined by aesthetic, as opposed to functional, considerations. I had some discussion whether it can be transfered to US law like that, although I still think it can, and of course it would be interesting to discuss whether CoAs can be seen parallel to logos—at least, they serve the same purpose. Although I agree that COAs are hardly industrial design, I don't think that law makes a difference about that.)

But here I thought more about the individual decorations... Ie., if somebody is drawing a CoA from heraldic specifications, he does not create a new CoA as such, he merely decides upon color and the details of the shape of the individual elements. I was refering to this shape that I think is applied art, and thus cannot be copyrighted, just in the same way as a font design involves decisions over the actual look of the characters and is still applied art. Certainly there is a point in which even typefaces become copyrighted, for example for initials with whole paintings (Image:Gregory IX.jpg), and I guess the same is true for CoA elements: One can draw them in such a detail that the design exceeds the utilitarian aspect of the elements (that is, to decorate CoAs, just as letters are used to print text), but generally that won't be the case, even if the design looks elaborate. --Rtc 12:07, 26 February 2007 (UTC)

Somehow I don't get it. Maybe it's just not my day... but if we both were given the task "draw me a sheep" (off-topic link for today: Le Petit Prince :-), and we both do so, it is clear that both our sheep drawings will differ somewhat, and are basically copyrightable. It eludes me completely why this shouldn't apply if we were given the task to draw the COA Gules, A sheep Argent. Lupo 12:21, 26 February 2007 (UTC)

Yes, but it's not about drawing a sheep, it's about drawing heraldic animals that are previously known, where the decisions that have to be made are strictly within certain bounds. If we are both given the task "draw me a typeface", and we both do so, it will differ somewhat, too. So "Differing somewhat" cannot be a criterion for copyrightability; the criterion is being a work ("geistiger Gehalt", expression of thoughts, which design of heraldic animals certainly does not have—it is about aesthetic judgements only—, in contrast to a free drawing of a sheep as a work of fine art) and being original enough. "differing somewhat" is IMO more a criterion for being protectable as a design, not as a work.--Rtc 13:14, 26 February 2007 (UTC)

The point was less that our drawings would be different, but that they'd be copyrightable. Why are sheep on COAs not copyrightable? I do think that there's just as much intellectual effort in drawing sheep in heraldry as is in drawing sheep for any other purpose. Heraldry appears to allow for considerable variability between actual graphic representations, thus leaving enough room for the artist's own originality or intellectual effort to show through. What you cannot copyright in a COA is probably the placement or arrangement of the individual elements making up the COA (as these are defined by the blazon and heraldic rules), but the individual graphic representations of the elements appear copyrightable to me. Lupo 14:32, 26 February 2007 (UTC)

It's a circular argument, since you said that they were copyrightable because they would be "differing somewhat", and you repeat that line of argumentation here. Obviously there is considerable variability for typefaces, too—so, if you argument was correct, they would also be copyrightable. But they clearly are not! Thus I still cannot regard your line of argumentation as correct... You'd need to give an argumentation that is consistent with the situation of typefaces and give an objective criterion to distinguish between the subtleties of a shape of a traditional heraldic animal and the subtleties of the shape of a letter. Why would a heraldic animal, in contrast to a typeface, not be "considered to be [an] utilitarian [object] whose utility outweighs any merit that may exist in protecting [its] creative elements" (Wikipedia:Public domain)? Also, copyright of course does not protect "intellectual effort", at least not in the US—that would be the "sweat of the brow" doctrine. The concept of originality is not based on effort, but on expression of thoughts that transcend the pure matter of the created object, such as a text being more than just a set of letters and a painting more than a set of dots and lines painted with a brush; both have meaning... The actual shape of a heraldic animal etc. however does not transcend its pure form in the same way. Do you know of any real US or non-commonwealth case that judged a CoA, or perhaps only a logo, or something remotely related, as copyrightable? --Rtc 14:52, 26 February 2007 (UTC)

Maybe I expressed myself badly with the "intellectual effort"; I should have stuck to "originality" and/or "creativity". I had no intention of drawing "sweat of the brow" into the discussion. Drawing a sheep is a creative act, whether you do it for heraldry or not. Hence, sheep drawings appear copyrightable to me. I don't see why you insist to compare COAs to typefaces. The comparison with logos makes more sense to me, but then we're back at the question I posed initially: does a COA have a "utilitarian aspect"? Is it a work of applied art? It appears to me that the Laufendes Auge is only not copyrighted because it is a work of applied art. If it had not been designed and used as a logo but had been a painting, I guess it would have been copyrighted? Thus, if a COA is not a work of applied art, or if its graphical elements can identified independently of the COA, it would appear to me that it can be copyrighted.

I don't think we can resolve that issue. I'm not aware of an actual case deciding the matter either way. Lupo 15:13, 26 February 2007 (UTC)

Yes, Laufendes Auge is copyrighted only as far as it has the character of applied art. That is, if I print it on the back of a postcard such that it appears as a painting of Zauleck, and not a logo, ie., if it looses its utility aspect, this would be a copyright violation as far as I see it.

Please note that not only the COA in its entirity may be applied art, but that the graphical elements, even if separable (which I do not think), may themselves be applied art. After all, they are slight variations of predetermined shapes, just as for a typeface. If I draw a sheep freely, I have a lot more freedom of creativity, and certainly room for creativity that transcends purely aesthetic aspects, than I have when I draw a heraldic lion, for example. Or some other example: Of course if I make a little statue of a horse, it is copyrighted. But if I make a new design for a knight piece for chess, that's applied art and wouldn't be copyrightable. I see the design of the elements of CoAs in the same way. --Rtc 15:30, 26 February 2007 (UTC)

User copyrights on coats of arms

(copied from / discussion effectuée sur Commons_talk:Licensing#User copyrights on coats of arms)

I think I may have asked a question similar to this before, but I ask again for clarification: if a user creates a digital image of a country's coats of arms, does s/he own some copyright over that image? --Iamunknown 20:44, 4 March 2007 (UTC)

Yes, it's a work of art on their part, so they can own the copyright for it.--Pharos 06:45, 6 March 2007 (UTC)

Also take a look at the discussion above (under Coast of Arms concerning Luxembourg). So far the only opposition to copyright on coat of arms images seems to come from German contributors.--Caranorn 11:56, 6 March 2007 (UTC)

A digital image of a COA is NOT copyrightable according Bridgeman v. Corel --Historiograf 19:54, 6 March 2007 (UTC)

Bridgeman v. Corel is about collage, photography and mere reproductions of existing paintings under copyright (cf. for instance [3]). What we are discussing here (and above) is completely different: it can be a drawing of our own, representing (and not copying) a coat of arms of which we can only know a mere description. Or a photograph of an existing and old (and not copyrighted) representation of the coat of arms, as it could be a photograph of an old castle or an old bridge: in these cases the object is old, but the picture is a creation.

Moreover, the same article claims that «even if the original art is public domain, all existing reproductions are under copyright.» So a reproduction of a public domain art work seems to be copyrightable. I do not see anything there specific to coats of arms, so they must follow the same rule.

Besides, as it is said, «Bridgeman v Corel affects only United States law. If you intend to publish your work in other countries besides the US, I would not recommend using this case as a guideline for legal use».

Therefore I think this argument is not relevant in our discussion. Bruno Vallette 21:21, 6 March 2007 (UTC)

I cannot correct the whole nonsense of Bruno Valette. First: What means "digital image" of COA? If the PD-COA is 2-D then any photograph will be PD also. Bridgeman v. Corel has done proof of UK law. In Germany photographs of PD-2-D objects are also not copyrightable --Historiograf 22:26, 6 March 2007 (UTC)

A photograph of a COA on an old PD print is entirely different from user-created art of a COA. One is not copyrightable (at least in the US and many other places), the other is.--Pharos 22:55, 6 March 2007 (UTC)

(Thinking out loud.) Pharos, I tend to agree with your points. Because the digital image is not a photograph, Bridgeman doesn't apply; because it takes skill to create the digital image, it is copyrighted, and thus must be licensed by the creator for use on Wikimedia projects. Now I have to go try and get that to pass at Wikipedia... --Iamunknown 23:31, 6 March 2007 (UTC)

(Thinking out loud, slightly indignant.) Where on Wikipedia has Bridgeman been applied to third-party created COA art? That's blatantly in violation of policy there as well...--Pharos 01:06, 7 March 2007 (UTC)

Here: en:Image:250px-Colonialhongkongarms.png. It's not exactly Bridgeman, but it does not provide a source because the user thinks that none is needed for similar principles. I tagged it for speedy deletion as the source is not indicated, was reverted with the poor edit summary, "CoA wouldn't have origin besides who granted it," and have had no reply to my objections on the talk page. Feel free to go raise a riot. :) --Iamunknown 03:20, 7 March 2007 (UTC)

Just to explain: Under German law, drawing a COA that you didn't invent counts not as an individual creation. Therefore, you can't copyright it, even if it took you hours to draw it. It's a mere unoriginal copy of an original created by someone else, usually PD. --87.234.44.130 16:26, 7 March 2007 (UTC)

Very interesting. It explains why people opposed to the copyright seem to come mainly (or only) from the de.wikipedia.

If it is a German law which forbids the author of a drawing to choose the license for his own work, what is the consequence on Wikipedia? Does this law apply:

• only on de.wikipedia or even on Commons?
• only to German coats of arms or to all coats of arms?
• only if the drawer is a German or to everybody?
• only if the drawer lives/draws in Germany or whereever he is? Bruno Vallette 21:28, 7 March 2007 (UTC)

Nota bene : answer given in an other discussion (Commons_talk:Licensing/Which_copyright_law_applies?):

«The country where you physically are has jurisdiction over you. In order to upload something to Commons you have to save a copy to your local disk drive (unless you have a very unusual remote transfer situation). By saving a copy to your local disk drive you have created something under the jurisdiction of your local copyright law.» David Newton 22:42, 10 April 2006 (UTC)

End of the Nota bene

Iamunknown writes: "because it takes skill to create the digital image, it is copyrighted". That is exactly not the case. Skill and labour are irrelevant for copyright, only originality is. --Rtc 20:20, 19 March 2007 (UTC)

Image talk:250px-Colonialhongkongarms.png

(copied from / discussion effectuée sur en:Image talk:250px-Colonialhongkongarms.png)

Without acknowledging the author of this image, its use here is in direct violation of that author's copyright. In order to acknowledge the author, a source must be provided; hence, I tagged this image with {{no source}}. Then I was reverted with no explanation save "CoA wouldn't have origin besides who granted it." That does not provide a source. So the image still has no source. (I wonder, then, why I was reverted?) If you want to talk to more people than me, I suggest that you first read Commons:Derivative works, an excellent non-legal-advicey piece about derivative works (which, because someone had to create this image, this is exactly that) and the copyright implications. Further, go to Commons talk:Licensing, where plenty of people will assure you that this is a direct violation of copyright. —Iamunknown 07:02, 6 March 2007 (UTC)

Iamunknown is correct. Someone definitely owns the copyright to this drawing of the COA, and we are violating it. I am restoring the tag.--Pharos 03:41, 7 March 2007 (UTC)

Related discussions

Which copyright law applies?

(copied from / discussion effectuée sur Commons talk:Licensing/Which copyright law applies?)

I (Duesentrieb) have had a discussion with David Newton about what copyright law we have to consider to determine which works are PD. I belive this should be discussed in detail, and I hope someone more qualified than me can shed some more light on the situation. Here's a copy of the discussion:

---

Abut this edit: please discuss this on the talk page (or the village pump), i'll revert it for now. Afaik, the place where the work was created and/or published definitely does matter - if the other countries matter seems debatable. Most wikis appear to rely mainly on the country of origin to determin if an image is usable.

If I understand correctly, for an image to be PD, it has to bo PD at least in the country of origin. -- Duesentrieb^(?!) 22:48, 7 April 2006 (UTC)

The country where something is first published is relevant to the length of copyright term in some jurisdictions, so it is relevant to whether something can be uploaded to Commons, but not always. It is only relevant in countries which have a rule of shorter term. That is an optional part of the Berne Convention which only some places have adopted. I know that EU countries have had it in their copyright laws since 1995, and it applies to anything made after 1995 there, but many countries, including the US, do not have it in their copyright laws.

What I have written is correct so far as I know. I am not a copyright lawyer so it cannot be definitive, but what was there before my edit and what is there now, thanks to your revert (assuming somebody else hasn't edited it in the meantime) is complete nonsense. If I upload something that is public domain in the UK, say a work by someone who died in 1935, where that work was published in their lifetime, but after 1923, then I would not be doing anything illegal in the UK, but I would be breaking copyright law in the US. That's what I was trying to get across and that is what it is critical for people uploading to Commons to understand. David Newton 18:31, 8 April 2006 (UTC)

Thank you for your response. You are probably right that the text on Commons:Licensing needs some tweaking. However, the law of the country of origin should IMHO still be the first thing we have to look at - if it's not PD there, it's probably not PD anywhere, and even if it was, it should be policy not to accept it.

For works that are PD in the country of origine (place of creation and/or first publication), the question is what else to consider. All I have seen about this so far just adds to the confusion:

• the "rule of shorter term" is nice, but where is it supposed to apply? The US? The country the uploader is in? etc.
• Does it matter where the servers are located? (IMHO not); Does it matter that the Foundation runs the servers, and is in the US? (IMHO maybe). Does it matter where the uploader is? (probably, because that's where he can be sued).
• How about works that are PD for other reasons than age? It's unclear for instance if US government work is in fact PD outside the US.

This is really tricky, and I don't think anyone really knows how to deal with this. You said that if you upload something that is PD in the UK, you may be violating US law, if it's not PD by the US rules. But why should US law be relevant to that at all? Because of the location of the servers? Unlikely IMHO, since that's basically storage space... in fact, a Wikipedia user would have a hard time to find out where the image is going at all... depending on how the cluster setup changes (not to speak of caches), it may be hosted in Seoul, in Amsterdam, wherever - there's no telling. People don't upload images to the US as such. Think about it this way: if I go 100mph on a German autobahn, am I breaking US law?

So, if you want to change the wording on the licensing page, please put a proposal on Commons talk:Licensing, and discuss it there. Thank you! -- Duesentrieb^(?!) 11:19, 9 April 2006 (UTC)

You and I seem to be talking at cross purposes so I'll define terms as I mean:

1. Country of first publication - the country or countries where the work was first published, with a country qualifying for joint status of first publication with either simultaneous publication or publication within 30 days of the first issuing to the public. This is important in the EU for determining whether something comes under the duration rules of the rule of shorter term.
2. Rule of shorter term - an optional part of the Berne Convention which means that if a work is first published in a foreign jurisdiction and the copyright term in that foreign jurisdiction is shorter that the copyright term of the foreign jurisdiction will apply in the country with the rule of shorter term. This is particularly applicable to the copyright of US-made television programs in Europe. They tend to get shown in the US first and nowhere else for 30 days. That means the country of first publication would be the US and the copyright term for the television program would be that of the US. It is also relevant for feature films, although less so due to the increasing harmonisation of world release dates.
3. Country of origin - a term that does not really mean anything in international copyright law, except possibly when talking about foreign-published works coming back into copyright in the US as the countries of origin of those works come into the international copyright regime.

The rule of shorter term only applies in those nations which have made it part of their copyright law. As I said to you in my previous post it applies in the EU now. For those countries which were part of the EU in 1995 when it came into EU law it applies to those works published in or after 1995, and only those works. I know the US does not have the rule of shorter term in its copyright, but elsewhere I am not sure.

Does it matter where the servers are located? Yes it does. The country where the servers are physically located has legal jurisdiction over those servers and consequently the copyright laws of that country are applicable to the servers. The laws of the US apply to the Commons servers since they are physically located in the US. The laws of the UK apply to servers physically located in the UK, the laws of Russia apply to servers physically located in Russia etc., etc.

Does it matter where the uploader is located? Yes it does. The country where the uploader is physically located has legal jurisdiction over the uploader and consequently the copyright laws of the country are applicable to the uploader.

Regarding US Government works, that really is an interesting question which has not, to my knowledge, been definitively answered. Inside the US the position is clear thanks to the US Code. US Government websites are also clear since when they say that information is public information and is freely usable since the websites are accessible worldwide that declaration applies worldwide. In the EU for materials only published in the United States after 1995 the position is clear since materials only published in the United States would have the United States as the country of first publication and the laws of the United States for copyright duration would apply, ie the works would be public domain. It's US Government works that are published outside the US but not on the internet since 1995, and those published prior to 1995 (at least in the EU) that are the interesting ones. I strongly suspect the US Government would have a hard time enforcing copyright on those works in many jurisdictions.

We had a similar situation with respect to Crown copyright materials until recently. In the UK the situation was clear, but outside the UK the situation was a complete morass and nightmare. However a senior person in OPSI which administers Crown copyright for the British Government has stated quite clearly that they view the expiration of copyright in the UK as also applying worldwide. I wish we could get a similar statement from someone in the US Government, but I don't think an equivalent single authority on the matter exists.

International copyright law is a real morass, and that morass has been considerably worse by the internet and its cross-jurisdiction applications. It will probably take decades to sort out. To give you an example of this, in the UK up until November 2003 it was technically a violation of copyright law to run a web caching service. There was no fair dealing exception to copyright to cover that situation. We now have a rule covering transient copies of something that are of no independent economic value, but for nearly 10 years those running web caching servers were potentially very vulnerable to litigation. That's a relatively trivial example from a jurisdictional point of view but it does show the sort of problems that fast moving technological progress is casusing for the international intellectual property law corpus. David Newton 10:49, 10 April 2006 (UTC)

Hm... what you say saises some interresting questions... here are a few:

• That means the country of first publication would be the US and the copyright term for the television program would be that of the US Uh, how's that? According to the rule of the shorter term, US law would not apply, because it has the longer copyright term on new works (95 years iirc). Or am I misunderstanding something?
• The country where the servers are physically located has legal jurisdiction over those servers and consequently the copyright laws of that country are applicable to the servers Jurisdiction over the servers does not necessarily mean that local copyright law applies to all content there. It just mean that any copyright that may apply would have to be enforced by the US.
• Say I have some image that was under crown copyright (or some other rule, no matter), but is now PD, because the copyright has expired under UK law. Now I upload this to the US server - and it magically becomes copyrighted again? Btw: how would someone uploading images to the german Wikipedia know that he is publishing something in the US? What would be the meaning of publish be in that context? All commons images are mirrored in Korea, btw - what does that imply?
• The country where the uploader is physically located has legal jurisdiction over the uploader and consequently the copyright laws of the country are applicable to the uploader - same as for the server location: while it'S true that the uploader is under the juristiction of that country, and law would have to be enforced by that country, I don't see how this would mean that local copyright law suddenly applies to all material uploaded by that person, no matter where it came from. That would mean I can't upload PD-Soviet stuff when located in Germany, for instance, right?

As you said: international copyright is a complete mess, and the situation is even worse if the internet is involved. We cannot possibly sort out all legal eventualities. We need some clear guidelines. here are some suggestions:

• if the work is not PD in the country of first publication, it's not acceptable on Commons.
• hosting the work must not violate US law. We have still to determine if and how US copyright law applies to works originating outside the US.
• uploading (i.e. publishing) the work must not violate the law of the uploaders country (actually, that's the uploaders risk, we may not need a ploicy on that). We have still to determine if and how local copyright law applies to works originating somewhere else.

As far as I see, this pretty much reflects current policy and practice. -- Duesentrieb^(?!) 12:17, 10 April 2006 (UTC)

On country of first publication for a TV program being the US with the shorter copyright term consider this: in the US it is a work for hire with a copyright length of 95 years, but under UK law it is considered a film for copyright purposes with a copyright term which expires 70 years after the death of the latest to die of the director, the producer, the writer of the screenplay and the writer of any original music for the show. It would be a very unusual TV program for all of those people to die within 25 years of the creation of the program, and consequently US copyright law would prevail as having a shorter term of protection.

If something is physically located in the territory of a country, unless it is something like diplomatic premises, then the laws of that country apply to the something. To say otherwise is to deny the fundamental concept of national sovereignty.

If you upload something which is PD in the UK to a US server, but it is not PD in the US then you do breach copyright. This is what I have been trying to get across about the different jurisdictions interacting here. It is not UK law that you are breaching, it is US law. It doesn't magically become copyrighted again, but the fact that you have transferred it between jurisdictions alters the laws that apply to it. Different jurisdictions have different copyright term lengths and consequently something can be copyrighted in one jurisdiction and public domain in another jurisdiction. It's simply that the internet has made transferring things between jurisdictions a more common occurrence.

The country where you physically are has jurisdiction over you. In order to upload something to Commons you have to save a copy to your local disk drive (unless you have a very unusual remote transfer situation). By saving a copy to your local disk drive you have created something under the jurisdiction of your local copyright law. Uploading something that is not public domain or licensed for uploading is a violation of that local copyright law. You seem to be running into the same conceptual problem that people have when I tell them that fair use does not exist outside the US and that any images sourced from outside the US cannot be uploaded under a fair use justification to any Wikimedia server. If the PD-Soviet material is copyrighted in Germany and you are located in Germany then yes you cannot upload the material to Commons legally. David Newton 22:42, 10 April 2006 (UTC)

Nachdem bei den Löschkandidaten neuerdings Vielsprachigkeit zugelassen ist, sehe ich keinen Grund mich mit dem Englischen zu quälen, zumal Duesentrieb meine Ausführungen auf Deutsch ständig zu ignorieren beliebt. Duesentrieb und Newton stochern im Gegensatz zu en User:Lupo im Nebel. In der englischsprachigen Wikipedia gibt es einen ausgezeichneten Artikel Public Domain, den diese beiden Helden beharrlich übergehen. Hier sind einige Fakten:

• Grundsätzlich besteht stets die Möglichkeit des Forum Shopping. Man kann sich nach gesetzlicher Regelung und nach Gerichtskosten das Land aussuchen, wo man klagt, da das Schutzlandprinzip gilt. Es gilt also das Recht des Landes, für das der Schutz begehrt wird. (Von der Möglichkeit des Internationalen Privatrechts, dass z.B. ein deutsches Recht nach US-Recht urteilt, kann abgesehen werden. Es ist ohnehin kompliziert genug.) Der Schutz kann weltweit begehrt werden, da Commons weltweit abgerufen werden kann.
• Zwar sind Verfahren in den USA (z.B. Zustellung deutscher einstweiliger Verfügungen) für Ausländer schwieriger, aber nicht ausgeschlossen. Der Standort unserer Server heisst nicht: legibus solutus.
• Grundsätzlich gilt das Urheberrecht eines Landes mindestens für die Staatsbürger. Ein Franzose kann also vor einem französischen Gericht gegen die Panoramafreiheit eines in Deutschland befindlichen Kunstwerks klagen, wenn er der Urheber ist.
• Grundsätzlich gilt in der EU die Inländerbehandlung für die Staatsangehörigen anderer EU-Staaten (einschließlich der EWR-Staaten wie Schweiz und Island). EU-Bürger dürfen nicht diskriminiert werden. Also kann ein Pole wegen seines in Deutschland aufgestellten Kunstwerks in Frankreich klagen (in Polen und Deutschland Frankreich (Lupo) gilt die Panoramafreiheit nicht).
• In der EU/EWR kann es sein, dass in einem Land ein Werk PD ist, in einem anderen nicht. Der Fotograf des Wachmann Meili (in der Schweiz höchstrichterlich PD mangels Schöpfungshöhe) kann in Deutschland und den anderen EU-Ländern den Schutz als Lichtbild bzw. Lichtbildwerk gerichtlich durchsetzen.
• Für die EU ist von der Regelschutzfrist 70 Jahre pma auszugehen, auch wenn durch spezielle Vorschriften in einem Land das Urheberrecht bereits erloschen ist.
• Ob die mit der EU-Schutzdauerrichtlinie nicht vereinbaren Zuschläge für Kriegsteilnehmer in Frankreich zur 70 Jahresfrist nach wie vor gültig sind, ist selbst in Frankreich umstritten.
• Der Standort des fotografierten Objekts und die Nationalität des Künstlers schließt Klagen in anderen Ländern nicht aus. Hundertwasser war Österreicher und das Hundertwasserhaus steht in Wien. In Österreich war es absolut legal, dass die Metro Postkarten des Hauses vertrieben hat, die von einem erhöhten Standpunkt im gegenüberliegenden Haus gemacht wurden. Mit der Einfuhr nach Deutschland wurden sie illegal und der deutsche Bundesgerichtshof hat die Einfuhr verboten. Auch das Verbreitungsrecht war nicht erschöpft. Bei einer Online-Veröffentlichung wäre der Abruf in Deutschland eine gute Gelegenheit, die restriktive Auslegung der in Österreich weitergehenden Panoramafreiheit entsprechend durchzusetzen (z.B. gegenüber Nachnutzern etwa der Wikipedia-DVD, wenn man nicht gegen die Foundation in Florida klagen möchte).
• Filme und Bücher, die in den USA PD sind, wurden in Deutschland erfolgreich vor Gericht als urheberrechtlich geschützt verteidigt. Das liegt daran, dass ein bilaterales Abkommen zwischen dem Deutschen Reich und den USA nach wie vor Geltung hat und der von der EU gegenüber Drittstaaten in der Schutzdauerrichtlinie vorgeschriebene Schutzfristenvergleich (rule of the shorter term) nicht zieht.
• Für die Karsh-Fotos hat Lupo gezeigt, dass alles dafür spricht, dass diese in Kanada gemeinfreien Werke mindestens in den USA noch geschützt sind.
• Lupo hat auch den Russland-Mythos, der hier immer noch eifrig gepflegt wird, schlüssig widerlegt. Was Deutschland angeht, gilt allerdings der Schutzfristenvergleich mit der Konsequenz, dass Werke russischer Urheber in Deutschland nur 50 Jahre pma 70 Jahre pma (Lupo) geschützt sind.
• Aufgrund des Serverstandorts in Florida ist es nicht ganz unwahrscheinlich, dass US-Urheber vor einem US-Gericht klagen. Dann gilt natürlich das US-Recht, was dazu führen kann, dass nach 1923 publizierte Bilder als geschützt angesehen werden, auch wenn der Urheber länger als 70 Jahre tot ist. Darauf können sich auch deutsche Urheber berufen, da die USA aufgrund des genannten Abkommens deutschen Staatsbürgern die Inländerbehandlung zusichert, Deutsche werden wie US-Bürger geschützt, also nach nationalem US-Recht.
• Wie sieht es mit der Schutzfrist in Mexiko (100 Jahre pma) aus? Für mexikanische Urheber werden sie mexikanische Gerichte natürlich bejahen (s.a. Licensing zur Ausnahme früherer Werke). Für ausländische Urheber richtet sich das Urteil nach den urheberrechtlichen internationalen Abkommen, in denen Mexiko Mitglied ist. Falls es kein bilaterales Abkommen mit den USA gibt und falls Mexiko Mitglied der Revidierten Berner Übereinkunft (RBÜ) ist, würde ein Schutzfristenvergleich gemäß RBÜ beispielsweise zur Folge haben, dass US-PD-Werke auch in Mexiko PD sind.
• Zu den US-Government-Werken steht fest, dass ausdrücklich festgehalten wurde, dass sie nur IN den USA PD sind. Das ist x-mal - auch hier auf Commons - belegt und nachgewiesen worden, aber David Newton erfindet das Rad neu und tut so, als sei das eine neue Frage. Für den FWS liegt ein ausdrücklicher Verzicht vor, bei den anderen Regierungsbehörden stellt sich natürlich die Frage, wie die USA das Urheberrecht außerhalb der USA durchsetzen könnte. Wir akzeptieren solche Bilder zurecht als Quasi-weltweite PD - es kann sein, dass sich an dieser Einschätzung etwas ändert. Aber ich sehe keinen Handlungsbedarf.

Welche Konsequenzen sind zu ziehen?

• Eine Option wäre, angesichts der Globalisierung sich auf den kleinsten gemeinsamen Nenner zu einigen. Nur wenn ein Bild in allen Staaten der Erde frei ist, kann es hier rein. Absurd, dann gäbs keine Panoramafreiheit und kein Bidgeman v. Corel (Repro zweidimensionaler Vorlagen) man hätte zahlreiche nationale Sondervorschriften zu beachten, abgesehen davon, dass eine Prüfung eines einzelnen Bildes Stunden oder Tage dauern würde und praktisch unmöglich wäre.
• Wenn man nicht jedes Risiko ausschließen kann, muss man gewisse - möglichst kleine - Risiken eingehen. Zur Abschätzung der Risiken des Forum Shopping fehlen empirische Daten, da Wikimedia bislang kaum nachhaltigen Ärger wg. Bildrechten hatte und auch sonst Bildrechte im internationalen Kontext selten gerichtskundig werden.
• Bei der Bestimmung der Faustregeln können und sollen kulturpolitische Positionen von Jimbo Wales und der Foundation (z.B. Akzeptanz von Bridgeman v. Corel) Eingang finden.
• Die Faustregeln sollten negativ formuliert werden, etwa:
  • Keine Bilder, die in den USA geschützt sind.
  • Keine Bilder, deren Urheber keine 70 Jahre tot ist.
  • Keine Bilder, deren Urheber/Erben in ihrem eigenen Staat Schutz geltend machen können.

Bei älteren Bildern kann ohne weiteres die deutsche x-100-Regelung übernommen werden, da das Risiko sehr gering erscheint, dass wegen so alten Bildern Ansprüche geltend gemacht werden. Ebenso sollte man versuchen, die Panoramafreiheit möglichst weitgehend in Anspruch zu nehmen. An Bridgeman v. Corel sollte nicht gerüttelt werden. Eine intensive Beratung durch en User Lupo sollte selbstverständlich sein. --Historiograf 22:26, 10 April 2006 (UTC)

Histriograf, I had asked you already before not to advertise my name as a copyright expert that I am not. I'm a normal Wikipedia editor who, after having made an error with the Einstein image by Karsh (which you pointed out to me, BTW), set out to really read up on copyright in an international context. That's all, and as the Meili image shows, my understanding of these issues is far from perfect and I sometimes still make mistakes. I'm not a lawyer. I don't know what would be a workable set of rules of thumb for the commons. Lupo 12:38, 26 April 2006 (UTC)

P.S.: I see PD-Soviet was mentioned a couple of times above. There ain't no such thing, the only workable rule for Soviet works I see is 70 years p.m.a. See Template talk:PD-USSR. Lupo 12:38, 26 April 2006 (UTC)

Duesentrieb says above "hosting the work must not violate US law. We have still to determine if and how US copyright law applies to works originating outside the US." All right. Let's assume that U.S. law does apply to content hosted in the U.S. That would be the "if" part, but why U.S. law should not apply to a U.S. foundation based in Florida, U.S., is beyond me. Granted, in an Internet context, even other laws might apply—if I understood this issue correctly, the lawyers still debate which laws would apply (server country? download country? both? all?). But for the Wikimedia foundation, U.S. law is certainly relevant. Now to the "how": take a look at Peter Hirtle's chart. In summary: works published before 1923 anywhere in the world are PD in the U.S. (with some caveats if there was no © notice). Foreign works published between 1923 and 1995 (inclusive) are PD in the U.S. only if they were PD in their country of origin on January 1, 1996. Otherwise, foreign works published before 1978 are copyrighted until 95 years since the publication (i.e. at least until 1923 + 95 = 2018), and foreign works published 1978 or later are copyrighted until 70 years p.m.a.

Hence an image of a photographer who died before 1936, but which was first published in Germany 1923 or later, is copyrighted in the U.S. (Because that work was copyrighted in Germany on January 1, 1996.) Especially with EU countries, there is no use invoking special or historical rules about images because of the retroactive nature of the EU copyright directive. See WP:PD for an explanation of that particular ugly situation.

If you want to ensure that all images on the commons are also PD under U.S. law, you will have to implement the rules outlined above. That would mean to require for each and every foreign work (tagged with one of the country-specific tags) a mandatory rationale explaining why the image was also PD in the U.S., and you'd have to remove quite a few images that are PD "only" outside the U.S. (see the "German photograph" example just above). And that's only for published works! <wishful thinking>If only the U.S. implemented the rule of the shorter term. That would make things much easier.</wishful thinking>

Final note: I didn't make those rules. They are what the law says. Whether that rule must be implemented, I do not know (as I said above). In my opinion, that's a foundation issue, because if it is to be implemented, there will be stiff opposition. Lupo 19:23, 26 April 2006 (UTC)

Is it even forbiden to show a seal or coat of arms?

(copied from / discussion effectuée sur Commons talk:Licensing#Template:US state seal)

Recently, a minor dispute erupted on en.wikipedia regarding the use of state seals on w:Seals of the U.S. states. I removed a number of seals that were tagged there as being used under fair use. A user began retagging all of the images with a duplicate of the subject above. The duplicate is problematic of course in that if the images are really public domain, they should be here on Commons. But, that issue aside...

At Category:State seals of the United States, we've got seals for 49 of the 50 states. All of these (I think) are tagged with the template noted in the subject of this section. The one exception not in this category is Image:Minnesotaseal.png.

The template contains references to a copyright notice from the U.S. German Embassy website. In particular [4].

The template was nominated for deletion in February of this year. See Commons:Deletion requests/Template:US state seal. It was closed by the nominator as lacking sufficient support for deletion. However, I believe that deletion request was flawed. In particular, that deletion request refers to these state seals as being federal works. They are not. They are state works. Thus, the usual case of U.S. federal works being public domain does not apply. Also, on the deletion request an anon-ip contacted the U.S. German Embassy and indicated they would report back with any feedback received. That anon-IP never reported anything back, though continued editing otherwise.

I believe that these works are state government works, and must be treated on a case by case basis. Some state seals are in the public domain by virtue of age. Some are not. Some are public domain by state law, some are not. Each of these seals needs to be evaluated on a case by case basis. As an example of why this must be done, I refer to the court of appeals of Alaska case Robart v. State (01/23/2004) ap-1914 [5] which found that Alaska held copyright to their seal and could disallow commercial use. This makes Alaska's seal incompatible with our licensing here, and throws into doubt the embassy's authority to release such rights. This case also further raises the issue of whether an old seal can still be protected from commercial use by states, making these non-commercially licensed images if the state so wishes to protect their works (and many do). This creates a problem; are these images PD by age or are they still protected?

Regardless, it seems clear that the images in question are not, in fact, in the public domain by declaration of the U.S. German Embassy, and this template is in the wrong. Further, images tagged with this template must be evaluated on a case by case basis.

Thoughts? I think perhaps it's time for a second deletion request, but would like some input. --Durin 21:29, 19 June 2007 (UTC)

• Addendum: I've contacted the Lieutenant Governor's office of Alaska regarding this issue. Text of the e-mail may be seen at User:Durin/Letter to Alaska. --Durin 21:49, 19 June 2007 (UTC)

You need to be careful about the copyright on a particular rendering of the seal and the concept of the seal itself. It's like the difference between a blazon and a coat-of-arms. The copyright is generally held by the person who drew it (unless they used an existing rendering as a direct guide, in which case it's derivative). If the embassy employed artists to draw the seals themselves, then that particular image would be PD. If you take an image of the seal off of the state's website, then you can only use that image under fair use, as that particular image is copyrighted by the state. The case you cite is about a particular law to prevent abuse of the seal, i.e. you can't use the seal to make it appear as though the state is endorsing your product. That is a common restriction on seals and state symbols (and federal symbols for that matter), but it exists outside of copyright, more along the lines of {{Trademarked}} (which can be allowed on commons). It is a restriction that users must be aware of and not break, but does not preclude it from being hosted here. Commons can't accept the image off of the state's website, but if someone drew it independently, that person can choose a free license and post it here (though use is still restricted by that law). Carl Lindberg 02:07, 20 June 2007 (UTC)

• • Durin, again, I have to question your legal analysis. The court in Robart v. State held that Alaska could disallow commercial use of their seal despite not owning copyright or trademark in the seal. To quote:

"Robarts position is that the state seal can only be protected by the federal copyright statute. Based on copyright law, he argues that the state seal is now in the public domain and can be used freely by the public. ... The States position is that AS 44.09.015 is not preempted, because it falls within the preemption exceptions ... The State argues that a state seal, because it is the symbol of a sovereign, is not a type of work that comes within the subject matter of copyright. We agree with the State copyright law does not preempt the Alaska statute limiting the commercial use of the state seal. We believe it is clear that states have the power to protect symbols of their sovereignty. ... [W]e cannot find a single federal or state case discussing the application of federal copyright law on laws protecting state seals. Nor have we or the parties found any other evidence that Congress intended to preempt the states ability to protect and regulate their state seals. Moreover, state seals appear to be more akin to trademarks or service marks than they are to the type of work Congress intended copyrights to cover. The federal trademark statute unlike the copyright statute specifically provides for state flags, coats of arms, or other insignia by prohibiting them from being registered."

In other words, state seals are public domain as far as federal law is concerned, but states can pass laws that have nothing to do with intellectual property to protect fraudulent use of the instruments of government. Since these laws don't cover what Wikimedia is doing (Wikimedia is saying "this is what the seal of X looks like", not "State X endorses Wikimedia"), the seals may be used across all Wikimedia projects. Mareino 02:14, 20 June 2007 (UTC)

• Your further message on my talk page [6] seems to want to make the case that since something is not of federal making, but of state making, that it can not be copyrighted. Thus, all works made by a state of the United States can not be copyrighted. I'm sorry, but this just isn't the case. --Durin 12:25, 20 June 2007 (UTC)
  • That's not what I said on your talk page. I said that state SEALS cannot be copyrighted -- which comes straight from that quotation from Robart v. State of Alaska. I never said that states cannot own copyrights. I said that states cannot make copyright laws. If you don't think that that is an obvious conclusion from Robart, then I refer you to Article I, Section 8 of the US Constitution, reserving to Congress the power "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries". Mareino 14:00, 20 June 2007 (UTC)
    • Let's please remember that Commons hosts images that can be used for commercial purposes. It is clear from the above cited case that commercial use WILL be prosecuted. I don't think we should be endangering ourselves to this position, claiming a free license, when we can just as well host such images on en.wikipedia and use them under terms of fair use. What gain do we have for claiming free license? None. Risk? Significant. --Durin 14:11, 20 June 2007 (UTC)
      • Not quite -- commons does not accept images with a noncommercial restriction as part of the copyright license, as that leaves the possibility that we could obtain a different photo without that restriction. In the case of a specific law or a trademark, there is no such possibility, and the image is as free as we can possibly get. A similar restriction would go for pictures of celebrities; if we can get a copyright-free one we can host it, but if someone uses that image to promote a product without that celebrity's permission then they are violating the personality rights and can be sued. There is no problem hosting such an image on commons, but users still have to be aware of how they use it, to not violate other laws. The most commons can do is say that such use is not a copyright violation. By the way, the U.S. government has a similar law barring commercial use of several of its seals, and commons hosts images of those as well. As the text of the ruling you linked to states, the "noncommercial" aspect of copyright versus the noncommercial restriction of trademark or these seals is a bit different -- trademark (and this law) is typically meant to bar uses where a consumer might believe the government (or third-party trademark owner) is endorsing the product in question, as opposed to preventing making money off of it in any way. Since seals cannot be trademarked (by U.S. law), states (and the U.S. federal government) need to have specific laws to get the same type of protection for them. Using such an image as part of a wikipedia article would not violate that law, even if other uses would. Carl Lindberg 14:43, 20 June 2007 (UTC)
        • Would you like to pay Wikimedia's legal costs for being dragged into court over this? Alaska already won once. I'd rather not risk it. --Durin 15:45, 20 June 2007 (UTC)
          • ? That case was over someone selling a physical product imprinted with the seal; rather different than what we do. As I mentioned, the U.S. government has pretty much the exact same law covering a lot of its seals, and we have them hosted here as well. There's nothing special about the Alaska law, and Wikimedia's use is not in violation of it. Carl Lindberg 16:04, 20 June 2007 (UTC)
            • Then perhaps we should re-evaluate what we are doing with such seals. If we can not use them as we see fit, they are not free as in libre, but restricted use. --Durin 18:34, 20 June 2007 (UTC)
            • Durin, if we did that, we would have to take down every single image in Wikimedia -- they all could be used for illegal purposes, that is, for fraud, by someone sufficiently clever and unscrupulous. I agree with Carl Lindberg: if it violates no intellectual property law, then Wikimedia has done its review and the image can stay. Mareino 17:23, 21 June 2007 (UTC)

See Paris convention

• The rules are given by article 6 ter. This is not a "copyright" problem, and the restriction problems are roughtly the same as for official coats of arms. The easyest way out is to point to this article 6ter as a warning in "state emblems - like" licences, and that's that. The central restriction is "[forbidden if the use is] of such a nature as to suggest to the public that a connection exists between the organization concerned and the armorial bearings, flags, emblems, abbreviations, and names, or if such use or registration is probably [...] of such a nature as to mislead the public as to the existence of a connection between the user and the organization." Michelet-密是力 16:16, 20 June 2007 (UTC)
  • Free as in libre. That's the point. The state seals do not meet that under the arguments being given here. --Durin 17:01, 20 June 2007 (UTC)
    • The "free as in libre" condition is just for copyright though, not laws that extend beyond that. See Commons:Licensing#_note-0. So long as it has an acceptable copyright license, and its use on Wikimedia projects does not violate any of these other laws, we accept them. If others want to use them, it is their responsibility to comply with their local laws. Using these seals as an illustration is OK (even in a commercial work), but using them to promote a product (a different commercial use) is not OK. Similarly, photographs of people can be used as an illustration in a book (commercial use that is OK), but also cannot be used to promote a product (commercial use that is not OK; it would be a violation of personality rights). Commons will host seals, and photos of people, provided the actual image itself has a valid copyright license. Note that it is possible to have a copyright restricted version of the seal; each person who makes an independent image of it would own the copyright on their particular image. Taking a U.S. state seal image off of the state's website would likely not be OK, as the copyright would be owned by the state on that particular .gif/.jpg file, but if a U.S. federal government artist did the same, it would be OK (or if a regular user made their own, and licensed it here). Carl Lindberg 01:14, 21 June 2007 (UTC)
• I've received a response from the Lieutenant Governor's Office of the State of Alaska indicating they are investigating the matter and will provide a thorough response on the copyright status of the state seal. I think at this point there's really just two ways to clarify this; get lawyers involved and/or get clarifying information from the states in question. Also of note is a related thread of discussion from 2006 on my talk page on en.wikipedia, regarding the seal of Nebraska. See [7]. This discussion with that state resulted in a similar situation to that being described above; local laws may affect usage. I'm still not comfortable with the idea that we should willingly place ourselves in a situation where we could be dragged into court. Seems were dancing a very thin line. --Durin 12:41, 21 June 2007 (UTC)
  • Yes, the situation is similar to that of Nebraska, and most if not all states (and most other countries for that matter). I disagree that we are anywhere close to the line, and if there was any problem it would be resolved long before a court case. The (printed, for sale) Encyclopedia Britannica also has the seal (see here), and that is not a problem for them. The design dates from 1910 from an "unknown" designer (according to this page), and the textual description of the design would be part of state law (and thus not copyrightable anyways). Each independent rendering could be under copyright, and we do need to be careful about that (there is usually no single "copyright status" of the seal). Using the seal for advertising would be a problem, but we aren't doing that. If a third party wants to use the image in a different context, it is up to them to follow the law. We should definitely mark it with {{Insignia}} or something similar on the page to indicate that. Commons' non-commercial restriction is only related to the copyright license. Carl Lindberg 16:29, 21 June 2007 (UTC)

• • I would think that the drawings are also public domain because, if they are accurate renderings, then they represent no added creativity on the creator's part, and so they build nothing upon the underlying, copyright-free statutory description of the state seal. Now an inaccurate seal would be a creative work, but hopefully we don't have to deal with that problem. Mareino 17:23, 21 June 2007 (UTC)

The line is not that thin. Of course, there is restrictions of usage, caused by the very nature of the thing: the legal problem in using a state emblem or seal is not to make anything official-like. This would be severely punished (see for instance in France: "The unlawful use of the seal of the State [...] is punished by seven years' imprisonment and a fine of €100,000") OK, so what? An illustration on wikipedia is clearly outside this usage - no problem. If someone wants to reproduce wikipedia for commercial usage, it is still OK: commercial usage is OK. If someone wants to print it on a tee-shirt with some humouristic subtitle, it will be a derivative work - still OK. If someone is foolish enough to print it on a fake diploma, he will get the seven years in jail, but this is cleraly not a copyright issue. Once the obvious restriction tag (about misleading usages) is added, there is no problem with respect to wikipedia policy: no authorisation is required, commercial reproduction is not a problem, and derivative work is OK. So the licence should be OK as well. Michelet-密是力 18:46, 21 June 2007 (UTC)

• Forgive me, but I remain at a loss as to understand how we could willingly put ourselves in this situation. We know, for a fact, that a person who used the seal of Alaska for commercial purposes was tried and convicted for that use. Images here on Commons are refused if they can not be used for commercial purposes. Yet, we are saying this image is ok to be kept here, when we know damn well it isn't as the lawsuit proves. What gain do we get from hosting such an image whose usage we know Alaska is willing to defend? This is insanity. It's like sticking a whopping big sign to our backsides saying "kick me!" I'm awaiting feedback from the State of Alaska regarding this issue, but regardless it's quite evident that hosting this image here is perilous (at best). --Durin 11:28, 22 June 2007 (UTC)

• • The Alskan state seal is in no way different from other insignia, flags, and emblems. I think there's a difference between showing (an image of) a seal and using a seal. If we replaced our Commons logo by the Alaskan state seal, we'd be using it, and indeed we might into trouble. But other than that, I think we're fine. And so are our downstream users, unless they use the image in ways that imply some endorsement by or affiliation to the Alaskan government when there is no such endorsement/affiliation.
  • The WMF licensing policy limits itself to the aspects of free cultural works specific to licenses (quote from Erik; he has stated that twice at least). We'll just have to accept that there exist freely licensed images of things that are not universally free, and that such images cannot be used for all purposes, even though there are no copyright restrictions on them. Did you know that there's a trademark on the design of the Empire State Building?[8] Did you know that Image:HH Polizeihauptmeister MZ.jpg isn't free for all purposes? (It cannot be used in advertising without the consent of the subject; c.f. personality rights.)
  • It is our long-standing practice to only consider copyrights, and at the most, to inform our users about possibly existing other usage restrictions outside of copyright. I see no reason to change that. If we did, we'd have to remove not only most other insignia and flags, but also e.g. images of people and design-protected items.
  • Provided there are no copyright restrictions on the Alaskan state seal, I would suggest to keep it and to tag it with {{Insignia}}. Lupo 13:28, 22 June 2007 (UTC)