Commons talk:Fan art

Other exception?

I think another exception might apply for diagrams illustrating the content of a piece of fiction in a utilitarian way. The best example I could find of this is at Image:Divisions of the Quendi colour.png. A slightly less clear example would be Category:Middle Earth maps (I've just commented on its deletion page).--Pharos 18:46, 20 February 2007 (UTC)

I agree about the diagrams, and don't think this page relates to them at all, because I wouldn't consider them 'artistic representations' at all. Copyright doesn't mean you can't use the words or draw circles around them / lines connecting them to show relationships. That's just using simple 'graphics' to aid in explanation. Thus, it isn't any more subject to copyright than a purely written description. However, as I understand it, the maps are a different matter. There you are creating a new work of art... you could argue that it is just a much more detailed example of 'graphics to aid in explanation', but then the same argument could be made for a painting of a character. Once you go beyond the realm of simple everyday usage / description into an actual unique work of art it falls under the original copyright. Or so it seems based on w:Derivative works and the like. --CBDunkerson 13:40, 23 February 2007 (UTC)

Well, the current definition, "images representing elements of a work of fiction" would be broader than that. I think the fundamental distinction would be whether the diagram was "arty"; i.e. if there are dragons at the edge of the map (of course there are probably less extreme examples) or somesuch, that it was drawn for fan appreciation rather than for purely informational purposes. There's a good example of a map that is not at all arty at Image:1984 fictious world map.png.--Pharos 21:19, 23 February 2007 (UTC)

I think the changes you made are fine. I meant for the 'not artistically unique' section to cover 'non-artistic diagrams' and the like, but the expansion helps to clarify the limits of what is and isn't 'artistically unique'. --CBDunkerson 01:32, 1 March 2007 (UTC)

A guideline?

Can we put this in Category:Commons guidelines?--Pharos 00:17, 25 June 2007 (UTC)

It's been done.--Elvey (talk) 19:34, 2 November 2009 (UTC)

Fan art of literary characters

I strongly disagree with the blanket prohibition expressed by this guideline.

When fan art is based on work presented in a visual medium such as a comic book or film, then yes, it's clearly a derivative work and should be speedily deleted. It is far less clear for fan art based on a literary work. It's the text of a novel that's copyrighted, not the ideas the text embodies even if they're entirely the invention of the author. An image uses none of this copyrighted text. It merely expresses the same ideas, and in a manner that must, since there are no source images from which to derive the art, arise entirely from the mind of the artist. At first glance it seems therefore to be the artist's own work, which they ought to be able to license as they like.

The guideline claims, "A drawing of a character described in a book is a derivative work of that written description and subject to the original copyright." This is not at all self-evident. The wide range of visual depiction possible from a written description by itself militates against it. If it were true, then we would expect all artistic depictions of the same fictional character would be more or less identical; and for depictions of different characters to be clearly distinguishable, but plainly neither is the case. That the "character delineation" test applies is therefore questionable at best. The claim must be substantiated.

It's true that there is case law extending protection to the story being told in a work, so that a story that's substantially similar to an older one can be said to be derived from it. Literary characters are also protected to the extent they're clearly delineated, or are themselves the story. But anyone who has been exposed at all to illustrations by different artists of the same book knows how wide a range of visual depictions can be arrived at from a verbal description. Legolas from Lord of the Rings is depicted both here and here; are these really both derivative of exactly the same work? How can you tell without knowing beforehand?

In many cases it's cannot be determined with certainty which literary work a piece of art is based on without looking at the title. We see a bearded man with a staff, dressed in robes and wearing a pointy hat. Is it Gandalf? Merlin? Mustrum Ridcully? An Armenian bishop? Most of a literary character's distinctiveness lies in its mannerisms, attitudes, habits, thoughts, moral strengths, and other characteristics not transferable to a purely visual medium.

It would be interesting to know if there is any caselaw on this subject. I would guess not: I spent quite a bit of time looking for some and there was no mention of it anywhere. (Plenty applicable to fan fiction, but that's a different subject entirely.) Absent that, and absent actual legal advice to the contrary, I would like there to be serious consideration on changing this policy. TCC (talk) (contribs) 09:17, 23 August 2007 (UTC)

If I remember correctly, the "Commons case law" is that we keep images of bearded men with a staff, dressed in robes and wearing a pointy hat, and other images of the same kind. Samulili 12:59, 23 August 2007 (UTC)

That's a good start, but it doesn't really affect what I think to be a fundamentally mistaken notion expressed here about what makes a derivative work. In the BMWSDRWPH situation, we're obviously talking about the kind of stock character, at least visually, that isn't eligible for copyright protection anyway.

Here's perhaps a better example. Suppose we see a stout guy with curly hair on his head, possibly barefoot, carrying a glowing sword confronting a giant spider in a dark cave. We know from the title that this is Sam vs. Shelob, but otherwise? Someone familiar with Lord of the Rings will identify it readily. Or will he? It's not difficult to conceive of a similar picture being made from an entirely different fantasy story. Something like this probably occurs at least once in any D&D campaign. It certainly happens more than once in my favorite series of retro-RPGs, Avernum. Yet the RPG is very dissimilar to LoTR and is in no way a derivative work itself.

I think what it comes down to, at least in part, is that individual still pictures of a scene from a literary work can almost always be shown to be a scene à faire one way or another, at least in its relationship to the text. Cases where it's truly inconceivable that a substantially similar picture could be made from an unrelated work are, I think, very rare.

(Ain't it great that Wikipedia actually has an article on pointy hats? Suck it, Britannica!) TCC (talk) (contribs) 23:31, 23 August 2007 (UTC)

I don't know about caselaw, but Commons had a relevant deletion request a while ago, at Commons:Deletion requests/Harry Potter Fan art, that is of interest for the establishment of praxis. / Fred J 09:44, 27 August 2007 (UTC)

• Do we have to discuss this in several places? Please see also COM:VP#Fan Art policy. For some solid background, see Gorman, R. A.: Copyright Law, 2nd ed., U.S. Federal Judicial Center, June 19, 2006; section "Pictorial and literary characters", p. 50ff. Lupo 15:34, 27 August 2007 (UTC)

This wasn't attracting any attention here, so I reposted it at VP at someone else's suggestion. The policy page might be a better place for it anyway.

Thanks for that link; it's a valuable reference in general on the subject. I find it essentially agrees with my understanding of the situation. TCC (talk) (contribs) 03:37, 28 August 2007 (UTC)

Brief legal review

Here's some stuff I posted in the Harry Potter Deletion Request mentioned above. It could do with some work and more detail but might form the basis of a re-write of this page. I do agree that, as currently written, the prohibition is expressed too strongly, probably because copyright issues have not been separated out from passing off/unfair competition. Normally, we ignore non-copyright restrictions here, but that would bear discussion where (as perhaps will often be the case) there will almost inevitably be a passing off/unfair competition problem if the fan art is clearly intended to be such. --MichaelMaggs 16:46, 27 August 2007 (UTC)

• • These images need individual consideration, and several of the points made above are far too sweeping. It is trite law that there can be no copyright in an idea as such: copyright protects not an idea but some specific realization, in words, images or sound. Furthermore, there can be no copyright in a mere name, eg "Harry Potter", even if that name is an author's own creation: names are in themselves too trivial for copyright protection. So, what are we left with?

• • The text of the books. Anything which copies the actual words of JK Rowling, from one of her books, will infringe. But a drawing of eg Harry Potter, based loosely on JK Rowling's description of him, from the books, will not. The books themselves have no illustrations. Generic fan-art will normally be OK from the copyright point of view, although it may be out of Commons scope. That's the case (subject to non-copyright issues - see below) even if the drawing is labelled "Harry Potter".

• • The illustrations on the books' covers. Copies of these may infringe - but only if they actually make use of some original features of those illustrations: it's not enough for example to say that fan art infringes a cover illustration simply because both show a boy with black hair having a scar on his forehead. The combination of these three things is an idea not an actual realization. To infringe copyright in the illustration, you'd need to take something more concrete - the boy's expression and position, say. A generic drawing of a black-haired boy with a scar is OK.

• • The films. This is more complicated. While it's true that an actor has no copyright in his own likeness, a drawing that closely replicates a still from the film will infringe the film-makers' copyright in the same way as would a photograph directly taken from the screen. Also, where the film has introduced new visual elements that are not in the books, those may attract new copyright. So for example a drawing of Hogwarts that copies closely the film realization may infringe; a generic drawing which is based on the ideas from the books will not.

• • Non-copyright issues. The manner in which an image is used is of great importance in practice, even where there is no copyright problem. If I create a new and original drawing of a black-haired boy with a scar, and label it "Harry Potter" I should be OK so far as copyright is concerned. But as soon as I try to sell postcards of my drawing, or use it as a cover illustration for a book of my own, I will be in deep trouble. In the UK, US and other Common-law countries, I will be committing the tort of passing off by putting into the market place articles which might well be bought by unsuspecting purchasers who incorrectly think I am associated with JK Rowling in some way, eg that I have been licensed by her or her company. In France and other Civil-law countries, passing off doesn't exist but instead I would fall foul of a variety of unfair competition laws. I might in theory also have to worry about libel, especially if my drawing might be considered derogatory and damaging to JK Rowling's reputation. So far as images on Commons are concerned, the general consensus seems to be that we ignore such non-copyright issues if they will affect only the ultimate downloader and re-user of one of our images; dowloaders have to satisfy themselves that any use they make of one of our images is OK under their own national law.

--MichaelMaggs 16:46, 27 August 2007 (UTC)

Thank you for this. I hadn't intended to talk about fan art of characters depicted in movies, or as depicted on book covers. Film characters have a much better claim on copyright protection for their images than literary ones do, I would think, and it would probably be good if any fan art uploaded here based on a book which has been made into a film be carefully distinguished from the films' imagery. The same is true for book covers, although that hadn't occurred to me.

I posted here because this is where the issue first came to my attention, but I wonder if we'd be better off talking about it at the policy page. See the last bullet under "Casebook". This page is no more than an explication of policy as expressed there, so it's really the underlying policy that needs to change. TCC (talk) (contribs) 03:37, 28 August 2007 (UTC)

Michael, while I like the implications of this presentation I do not see how it can be correct. By the logic presented in the 'text of the books' section, I could take a newly published book and go out and create a movie (every bit as much a 'new' artwork as the 2D pictures of your example) of it, with all the same characters and scenes, but not be violating the copyright of the original author. Your presentation seems to hold, under 'Non-copyright issues', that I would only 'get into trouble' if I then tried to use it in ways that might imply that I was representing the author. Could I sell it so long as the title was 'A film copied from the book XYZ by Conrad Dunkerson, who has no connection whatsoever to the author'? Could I hand it out for free? Put stills up on Commons?

The text of the 'Derivative works' articles, both here and on Wikipedia, seems to indicate very clearly that any time I create a painting, sculpture, drawing, film, or whatever based on written descriptions of some specific/unique thing in a work of fiction I am violating the copyright of the author unless I have permission to create such a 'derivative work'. Is that not the case?

You cite these instead being cases of 'passing off' and 'unfair competition'... but those are both described as types of trademark infringement. Trademark law is different than copyright law, but I don't think Commons allows trademarked images either. So, whether an image I create of 'Frodo Baggins choosing to keep the Ring at the Sammath Naur' is a copyright violation (as I think) or a trademark violation (as you seem to say)... it's an appropriation of Tolkien's intellectual property without permission.

Is there an intellectual property lawyer in the house? Can I draw that picture of Frodo and distribute it under a free license or not? Would seem to be a simple question, but every time an issue like this comes up a different answer is given. --CBDunkerson 14:38, 30 August 2007 (UTC)

The problem is that it's not a simple question at all, and any legal decision will turn on the exact facts of the case and the details of the presentation. It's simply not possible to sumarise the law in a page or two, let alone enunciate an easy-to-understand principle that will hold true in all countries. Also, what is allowed under one legal framework (eg copyright) may not be allowed under another (eg passing off/unfair competition). As I mentioned above, there can be no copyright in an idea as such: copyright protects not an abstract idea but some specific realization, in words, images or sound - but of course different courts may differ in what level of abstraction counts as an idea and what level counts as a realization: given a particular example, it may not always be easy to say on which side of the line it falls.

You ask whether you are violating the copyright of the author if you create a painting, sculpture, drawing, film, or whatever based on written descriptions of some specific/unique thing in a work of fiction. The answer is not necessarily. No lawyer can possibly say yes or no to a general question like that without seeing exactly what you have done, and comparing that with exactly what the original author has written. And even then the answer may well not be certain until the case gets to court. What the author has written may not in itself be original, for example if he/she has relied on earlier sources/ideas, and that may affect the extent to which copyright can be claimed.

What we should do on Commons is to avoid trying to work to lengthy IP law treaties, but rather to agree on some easy-to-use policy that users can refer to, and which will avoid Commons running into the majority of legal pitfalls. Maybe the policy should be "No fan art allowed at all"? That means we will have to remove quite a few images that are very likely OK, but at least we will be erring on the safe side. Or we could say we will worry about copyright only, and will ignore other possible legal issues. Either way, I agree that policy is unclear at the moment. -MichaelMaggs 16:57, 30 August 2007 (UTC)

I think we can ignore in this discussion the question of fan art based on pre-existing visual renderings of literal characters (e.g., from comic books or films). This type of "fan art" is, IMO, clearly derived from the underlying visual work, and thus subject that that work's copyright. So shun any "fan art" that depicts Harry Potter based on the likeness of Daniel Radcliffe as he appears in the movies: that's a clear violation of the movie's copyright.

More interesting and difficult is the question whether original depictions of fictional characters or worlds might infringe upon the copyright of the underlying literary work. Conrad's film would be a derivative work if its plot was based on the story. If it wasn't, it would no longer be "A film copied from book XYZ", would it?

According to Gorman, strictly literary characters are not copyrightable—but there may be exceptions. In general, a character needs to be distinctly developed to be copyrightable; a character that is just a "chess man in the game of telling the story" is not copyrighted, but a character that essentially is "the story being told" would be. See Lalor, Cathy J.: Copyrightability of Cartoon Characters, IDEA: The Journal of Law and Technology, Franklin Pierce Law Center, 1995. Only a court could make this decision, but to me, this looks as if Harry Potter might be copyrighted, but Lord Voldemort wouldn't be.

Maybe a good guideline for the Commons would be that visualizations of "main characters" would not be allowed, unless they were stock characters (such as the "Sam Spade"-type detective). The stock-character exception would account for the "scenes à faire" argument, I think.

Caveat: all this is based on sources pertaining to U.S. law. I haven't yet found any source on the situation in other countries. In any case, we should not be hosting fan art that is based on pre-existing visualizations of these characters, whether in film or in books. As an example: I would delete Image:Dumbledore.jpg as it is too close to the film's rendering of the character. It's not a "stereotypical mage with a long white beard", it's IMO really a derivative of some movie still, even down to the same kind of glasses. Lupo 08:19, 3 September 2007 (UTC)

This is essentially what I'm getting at. Yes, fanart visually similar to copyrighted visual depictions of literary characters are out. But my point was that even main characters probably aren't sufficiently distinctive -- in appearance -- to call an image based on a description a derivative work. It is always possible to come up with a character similarly described, but differently named, with a different history and in a story with an entirely different plot -- but which may nevertheless end up in a scene where, however briefly, he's in an identical-looking situation. So see a skinny British kid with glasses who has magical powers and (at least occasionally) an owl. Is he w:Harry Potter? Or w:Timothy Hunter? Actually, these two aren't equivalent because Timothy is a character in a series of graphic novels, and so his likeness is clearly covered by copyright. But even then he isn't very visually distinctive from how anyone would draw Harry Potter. It would be easy to draw them in such a way that you could tell the difference -- but it would be just as easy to draw them in such a way that you could not.

I looked over as much of the relevant caselaw that I could find -- I had already read most of the legal links you provided below, but they didn't seem directly applicable. They it all seemed to apply to either characters appearing in other literary works, or to visual media that told the same story as a literary work. I was unable to find anything at all pertaining to a single still image, where there cannot be said to be anything like character traits, personality, or plotline inherent in the drawing. I don't see how any of the usual tests for comparing two works could be used here.

Incidentally, I disagree with you about the Dumbledore picture. He's an old man in robes with long hair and beard. Not too many ways to depict him that won't resemble the movie version in those respects, and I don't see that this one goes any farther. (And actually, the hair is very different.) Even the glasses are simply those he was said to wear in the book: they weren't invented for the movies. I note the artist has carefully drawn the nose so that it looks as if it has been broken in the past, which is not something you see in the film depictions. In fact, neither of the actors who have portrayed Dumbledore had quite the right nose for him. His nose would be an instant clue in this particular case as to whether an image of him was based on the film or was taken from the artist's imagination. TCC (talk) (contribs) 05:36, 7 September 2007 (UTC)

my 2 cents: The example "creative Harry Potter likeness created after description in Harry Potter book" is derivative or at least comes close. Speaking for German, not for US legislation. Just imagine this: You create a graphic novel with a figure called "Harry Potter" who happens to be a sorcerer and wears glasses - 100& lawsuit. Not for making use of the description, necessarily, but for making use of the name. In Germany (most countries, I guess), using a "distinctive" name which is already in use is not allowed (Markenrecht/Titelschutz). --Fb78 10:04, 3 September 2007 (UTC)

But what level of distinctiveness is needed? Suppose someone wrote a book in which a horse named "Mississippi" appears as a minor character. Do you think Cornelia Funke had any reason to sue? What if the horse with that name was a major character in that book (which otherwise would be unrelated to Hände weg von Mississippi)? What does the German legislation or the courts say? Lupo 07:57, 4 September 2007 (UTC)

Another source: [1]. Just a listsrv message, but quotes two books. And then there is McCutcheon, Jani: "Property in Literary Characters: Protection under Australian Copyright Law", European intellectual property review 29(4), 2007; pp. 140–151. (Haven't read the article, just found references to it. She also published "Copyright protection for fictional literary characters" in Intellectual Property Forum, issue 67, December 2006, pp. 14-28. That appears to be a periodical from Australia/New Zealand.[2]) Lupo 09:03, 4 September 2007 (UTC)

• Some more:
  • The Protection of Fictional Characters by Ivan Hoffman
  • "The Protection Afforded Literary and Cartoon Characters Through Trademark, Unfair Competition, and Copyright", Harvard Law Review 68(2), December 1954, pp. 349–363
  • Clark, Stephen: "Of Mice, Men, and Supermen: The Copyrightability of Graphic and Literary Characters", St. Louis University Law Journal 959 (1984)
  • EJIP (no idea what that is): Word document stating that UK courts had "generally rejected the idea of copyright in literary characters". How reliable is this "source"?
  • Samuels, E.: The Idea-Expression Dichotomy in Copyright Law, Tennessee Law Review Association, Inc. 1989; The University of Tennessee.
  • What You Need to Know About Character Protection
• (Just an unsorted dump; I haven't studied those.) Lupo 09:32, 4 September 2007 (UTC)

Ok, so there isn't alot of caselaw exactly on point, but we've got some general concepts. However, I think the idea of 'magician kid with glasses' possibly being 'ok' has to take into account the issues stated by Lupo... where it stops being ok when you associate that picture with the name 'Harry Potter'. The scenarios which have been cited all pertain to the fact that J.K. Rowling can't prevent anyone else from writing about or drawing another kid who wears glasses and uses magic... but she can stop them from calling him Harry Potter, or most likely even 'Larry Spotter'. That's the whole trademark infringement issue mentioned further upthread. So, taking the Image:Dumbledore.jpg image... there is dispute over whether or not this is so clearly based on the film depiction as to represent a derivative work and as to whether the book character is distinctively enough described and represented to be subject to independent copyright protection... but doesn't the fact that we are essentially saying, 'this is Dumbledore' make all of that moot? Aren't we specifically representing this image as being Rowling's character... rather than some other random white bearded wizard whom we have created for different purposes (as most of the caselaw cited seems to refer to)? We always talk about copyright issues, but I don't think Commons allows images which infringe upon trademark either.

I think we can have images of white bearded old wizards and wizard boys wearing glasses so long as they aren't obviously based on some pre-existing image or uniquely identifiable as one specific fictional individual... but when we label them 'Dumbledore' and 'Harry Potter', possibly even just by including them in such a category or an article on the subject, then I think they are trademark violations even if they aren't clearly derivative of a visual or written description. —the preceding unsigned comment was added by CBDunkerson (talk • contribs) --07:17, 9 September 2007 (UTC)

That's okay with me. / Fred J 13:15, 9 September 2007 (UTC)

I don't know much about trademark law (or "unfair competition" in common law-systems), but we certainly host a lot of trademarked media. See Category:With trademark. So, in my unqualified opinion, we should either not delete something because it is trademarked or we should delete the lot of those image. --Iamunknown 23:09, 9 September 2007 (UTC)

It might be trademarked, it might not be. But so what? That's an entirely different body of law, and one about which we're not particularly concerned. If "Dumbledore" is trademarked, and that's such a concern that we can't host an image with that label, then an article with that title is equally problematic, especially since any decently written article must reveal far more of the character than any image possibly can.

I actually don't think that even copyright empowers Rowling to prevent someone from drawing a picture and attaching a label. She cannot copyright the name. The verbal description is certainly copyrighted, but that's not what is being copied. From the available (US) caselaw, there's no suggestion that the distinctive elements that make a character copyrightable are transferable to a single still image no matter what you label it. If you were to sell that image with that label and represent it as Rowling's character, then you may well have an unfair competition/trademark issue on your hands, and we might have a small concern in that area since we don't like non-commercial restrictions on our media. But that's a problem for the seller if he chooses to sell the image in such a way as to raise the issue. I doubt it's a problem as an incidental part of a large compilation that doesn't include such a large collection of these images that it interferes with the sale of licensed image collections.

But at this point we're all guessing, which is why it'd be good to get a qualified legal opinion. TCC (talk) (contribs) 00:51, 12 September 2007 (UTC)

Usefulness?

All right. Let's examine a different angle. We all agree that fan art that is based on pre-existing images (i.e., a derivative work of a copyrighted original) is out. Stuff drawn after movie stills or comics is not ok. Only truly original fan art might (just might) be ok from the copyright angle, but there may still be trademark and unfair competition issues. Even if we ignore those, what could such original fan art be used for?

• Could it be used to illustrate a Wikipedia article? I don't think so. It'd be original research, not exactly encyclopedic, and misleading. The only possible exception I see might be the article w:Fan art (which currently has no illustrations at all). But I don't think using fan art in w:Harry Potter was appropriate. Nor would it be smart in w:Harry Potter (character), nor in w:Harry Potter (film)...
• Could it be used on Wikinews? Probably doesn't make much sense either. Didn't make sense in Wikinews:Harry Potter and the Half-Blood Prince released, nor in Wikinews:Final Harry Potter book's cover art released, nor in Wikinews:Final Harry Potter book goes on sale, ...
• Could it be used on Wikisource to illustrate a PD text? Possibly. But I don't think it would be good idea to illustrate a PD (and thus old) text with modern illustrations—such anachronisms should be avoided. In many cases where one would like to have illustrations it should be possible to find an old illustrated text, where the illustration are PD, too. But I notice that for instance s:Alice in Wonderland has no illustrations at all, even though there are many fine PD illustrations for it. Ditto for the works of Jules Verne: his works are also without illustrations at Wikisource.

Unless I'm missing something, there's only one reason to upload modern fan art: to showcase someone's work. But that fails COM:SCOPE: there are plenty of other websites where people can showcase their own work. So why allow modern fan art at all? Lupo 07:08, 10 September 2007 (UTC)

I totally agree with you. Fan art of a character is not what an encyclopedia should use to illustrate that character. Samulili 08:19, 10 September 2007 (UTC)

What you're missing is that it's not appropriate for us to decide here what might or might not be useful for one set of articles or another. That's up to the editors of those articles. They are the ones who have been demanding illustrations, not the fan artists. This whole discussion is happening because if fan art can be freely licensed, then professional art as non-free media is right out. It's hard to justify a non-free image for an article on a text anyway, but nearly everyone working on those articles feels the lack. TCC (talk) (contribs) 01:26, 12 September 2007 (UTC)

Of course it is appropriate for us to discuss whether we want fan art at all or not. Lupo 06:03, 12 September 2007 (UTC)

You were insisting the only possible reason for fan art would be to showcase a fan artist's work because it would be absolutely useless for illustrating a Wikipedia article, in spite of the opinions of dozens of editors working on the affected articles. You can only say that if you're determining article content, and that's not what we're doing. Or do I have the wrong idea here, and the purpose of the Commons is to dictate to Wikipedia editors what they should or should not want in the articles they write?

No, that's silly. Let those editors decide what they want. If they find fan art suitable for their purposes, and neither OR nor misleading (which they are in far better position to judge for their particular cases than we are here) then it's not up to you to proclaim from on high that they're wrong. The only issue is if fan art can be freely licensed, or if it's encumbered by the copyrights on the literary work it illustrates. TCC (talk) (contribs) 04:28, 13 September 2007 (UTC)

I agree with both of you. It is appropriate both to discuss whether fan art is within the scope of Commons and to let other editors discuss whether fan art is appropriate for their purpose. Discussion on either point (and discussion in general) is helpful and should, imo, be encouraged. Framing the discussion in absolutist or ethical terms, or marginalising a side of the discussion, is not helpful and is divisive. --Iamunknown 04:46, 13 September 2007 (UTC)

In my opinion, the usefulness of fan art based on a book is to show the wide range of responses to that book. It is all very well saying "has inspired a wide range of..." but actually showing that wide range is best. If that comes across as a gallery of images, then yes, that is exactly what is intended. Have a look at w:Gandalf#Adaptations, or another way to do this on another wiki or at this collection. Here is a collection of characters and of events. Carcharoth (Commons) 13:36, 17 September 2007 (UTC)

Another area where 'usefullness' comes into play is with maps. If an author described a region, but drew no map of it then there would be no pre-existing image for a fan drawn map to infringe on. I'm still not certain that I believe it wouldn't infringe on the written description in ways that are not allowed, but that is the argument being made and, if true, then such maps would certainly be useful for illustrating articles about the fictional realm. --CBDunkerson 11:50, 21 September 2007 (UTC)

Well, I still think it wouldn't be a good idea. Such a map would probably qualify as "original research". Lupo 11:59, 21 September 2007 (UTC)

In this case, I would tend to agree with you.

I'm a bit puzzled by Carcharoth's idea about an image's usefulness. The impetus behind this came when -- more or less at my instigation -- a large number of images by w:Ted Nasmith illustrating scenes from a very wide selection of Tolkien's works were deleted as invalid fair use. They were, in the vast majority of cases, not accompanied by anything in the way of the sort of commentary that would justify fair use, but were used merely to illustrate the article. My contention was that fan art could serve this purpose equally well, since as long as the art was of professional quality -- as is much fan art, and any fan art anyone would want to use here -- a fan artist's imagining of a described scene is no less valid than a professional's. Often moreso I would think, as fans usually pay far more attention to the text than a professional working to a deadline can afford. So the big push all around was for illustrations for the articles, not an analysis of the range of artistic reaction to a particular scene or story. If that's what is wanted, and what will actually be done, there's no reason to worry about copyright status of the art. As long as this analysis is actually carried out in the text this would be valid use of non-free media. TCC (talk) (contribs) 23:21, 25 September 2007 (UTC)

Deletion debate

Have we come to enough of a consensus to close the deletion debate at Commons:Deletion requests/Template:Trademarked-Tolkien? Quadell (talk) 12:31, 31 December 2007 (UTC)

I'm not sure. But it is only used on these two images: Image:Narsil andúril final.jpg and Image:Glamdring.jpg, so anyone interested in the debate could look at those two images and ask themselves is they consider this kind of content right for Commons. / Fred J 15:56, 31 December 2007 (UTC)

laws

The right to prepare derivative works is what prevents an infringer from creating their own derivation on a copyrighted character. For example, a hopeful artist, Sapon, submitted a sketch titled “The New Batman” to DC comics in hopes they would use his design for a revamped Batman comic.

End of seven to eight. Ehat do you guys think about that? Mizunoryu 大熊猫❤小熊猫 (talk) 17:01, 4 March 2009 (UTC)

Cosplay

Per Commons:Deletion requests/Images of costumes tagged as copyvios by AnimeFan and comments by Wikimedia legal expert, cosplay is acceptable on our project. This should be clarified in this guideline. I've started a thead on VP regarding revision of this guideline: Commons:Village_pump#Commons:Fan_art_needs_revising. --Piotr Konieczny aka Prokonsul Piotrus ^Talk 20:15, 17 March 2009 (UTC)

I can't find that discussion.  :-( It seems to me that we have guidelines that still suggest photos of board games and costumes are not acceptable despite what Godwin has said. I'm suggesting and making some edits to try to address that. --Elvey (talk) 20:09, 2 November 2009 (UTC)

Proposal to re-write this page

Please see Commons:Fan art/Proposal and the corresponding talk page. --MichaelMaggs (talk) 15:03, 21 March 2009 (UTC)

Per talk, I have gone live with the proposal today. --MichaelMaggs (talk) 17:44, 2 April 2009 (UTC)

Suggestions

• Could u move the talk page of Commons talk:Fan art/Proposal to here?
• Would u consider explaining the difference between FOP,Derivative and Fan art? Maybe another page to explain the use of which tag. I hit this problem when I looked at File:FlyingcarofHarryPotter.JPG . It's a derrivative in the US in a public place. Is it artwork? If yes it should be removed because FOP for artwork isn't in the US. I don't understand which tag to use.
• What about costumes? are they considered Fan art? This is for comic conventions where people dress up like batman and walk around. Example :File:A Whole Lot of Jones.jpg.
• What about this picture? File:Indiana_Jones_Stunt_Spectacular.jpg is it considered a copyright breach?

What I'm simply saying is it's very hard to know which images are considered copyright breach and which not.--Diaa abdelmoneim (talk) 08:54, 3 April 2009 (UTC)

What about fan made versions of boardgames?

Two of my images were deleted some time ago, and a score of others, at Commons:Deletion requests/Settlers of Catan images. I cannot speak for all images there, but mine were not of the official game but of the fan-made ([3]), being played in a public space (GenCon convention). Wouldn't such fan made games fall under fan art? --Piotr Konieczny aka Prokonsul Piotrus ^Talk 18:51, 12 April 2009 (UTC)

Harry Potter educational?

Hello everybody!

I don't like the some parts of the policy in the current version. Maybe it's right from an copyright point of view but when it comes to none-copyright issues (e.g. usefullness) I think it's too less restrictive. Lupo wrote an intersting question above and some time ago but I would be fine if somebody can answer that question.
Another point is the phrace: "The image Harry Potter on the other hand is educationally useful, as may be seen from the fact that is in use on multiple wikis." Is it true? Let's have a look: On en for example on en:Portal:Harry Potter. Not really educational, it serves as a part of the graphical interface (see also klickibunti), it could be easily replaced or removed. On eu it's used in the articel itself (eu:Harry_Potter). I think that it should be clear that it is a no-go to use self-drawn images in an encyclopedia. Other usages are similiar: Most times it's used on Portal or templates-sites (e.g. fr:Modèle:Wikiprojet Harry Potter). Not really educational purposes.
In principle the more a fan-art image differs from the original (and therfore is more likely to be legal) the less it is suitable to illustrate an articel (or other usage). --Isderion (talk) 00:15, 5 May 2009 (UTC)

Getting it right from a copyright point of view is pretty much all we are concerned about ;-) Use on portals is still a use, and means it would be in scope here. Commons also supports more projects than just encyclopedias; if images are usable on those projects they are also fine here. COM:SCOPE still applies otherwise, of course. If en-wiki wants to avoid use of these on articles, they can certainly make that policy -- but that does not necessarily apply to other wikipedias or other projects. Those are editorial decisions made by the respective projects, and Commons has no opinion on such matters. If specific projects have their own related policies, we could include a link here, but not much more than that. Carl Lindberg (talk) 01:11, 5 May 2009 (UTC)

Star Wars droids still not ok?

Please see Commons:Undeletion_requests/Current_requests#File:Gen_Con_Indy_2008_-_robots.JPG. --Piotr Konieczny aka Prokonsul Piotrus ^Talk 17:15, 5 July 2009 (UTC)

Here's the reply from w:Mike Godwin , Wikimedia Foundation general counsel, regarding droids as well as fan made versions of boardgames I asked about above:

"Piotr, I don't really see any significant legal issues with either the fan-made boardgames or the photos of the fan-made droids. Even if the games and droids themselves were infringing, I don't think photos of them would be a problem. We have never received a copyright complaint regarding either class of items."

So we have our legal councel telling us we have too much meta:copyright paranoia... why I am not surprised? :) --Piotr Konieczny aka Prokonsul Piotrus ^Talk 02:23, 6 July 2009 (UTC)

As usual, Mike Godwin is being insufficiently conservative for our purposes. The idea that a photo of a derivative work could fail to be derivative itself is bizarre, and the argument that we've "never received a copyright complaint" is incompatible with the precautionary principle. Mike has said before that he doesn't dictate policy and Commons has a history of being more conservative than he advises. I'm also disconcerted that this policy is supporting his statement that photographs of people in commercial costumes are acceptable, a statement that was never accepted by community consensus. Dcoetzee (talk) 22:28, 10 December 2009 (UTC)

Most costumes are not copyrightable in the U.S.; they are utilitarian. The US Copyright Office, and court cases, have ruled on that. They are more often a trademark issue. Masks may be more of an interesting situation -- there have been cases on those where they are deemed copyrightable. But, to be honest, I'm not aware of any court case anywhere which argued derivative works on photos of costumes. So, that concept is a completely theoretical one which has never gotten anyone in trouble as far as I have been able to find. It is definitely getting into the realm of paranoia. When we make deletions of photos, people are often incredulous -- but it is always helpful to point to actual court cases to show there is a possible real issue. If we can't, then we very well may be wrong when we claim that such things are derivative works -- obviously photographers have sold photos of such things many many times, so you would think there would be a court case somewhere if it was a problem. There is a fun court case in the U.K. where Star Wars stormtrooper helmets were deemed not to be sculpture, but rather designs, and the protection in the UK has expired. The same person (who made the original models for Lucas way back when, was selling duplicates, and was sued by Lucasfilm) was deemed guilty of infringement in the U.S., but he was not able to defend it so it was not really argued at all. I don't think design protection extends to photos of the designs, so... UK photos of that stuff are almost certainly OK there. Carl Lindberg (talk) 02:58, 11 December 2009 (UTC)

That's a strong argument, at least in many cases. Upon reflection I think what I overlooked is the tacit assumption that the sculpture or statue is itself released under a free license. This makes a much stronger case, but I think it should be spelled out. I remain confused by the argument that "even if the statue is infringing, the photo is ok." Is this really true in all cases? I'm alarmed by the absolutist language in this statement. What makes a derivative work of an infringing work no longer infringing? Dcoetzee (talk) 04:18, 11 December 2009 (UTC)

Sims or Spore Screenshots

Are Sims3 movies or Spore creations with original content allowed? I would assume yes from the License Agreement

"In exchange for the right to use content contributed by other users through the Software, when you contribute content through the Software, you expressly grant to other users of the Software the non‐exclusive, perpetual, transferable, worldwide, irrevocable right to access and use, copy, modify, display, perform, and create and distribute derivative works from, your contributed content in connection with the Software, and to distribute and otherwise communicate your contributed content as a component of works that they create using the Softwae, for example, The Sims lots or The Sims videos, without further notice, attribution or compensation to you. You hereby waive any moral rights of paternity, publication, reputation, or attribution under applicable law with respect to EA’s and other players’ use and enjoyment of such content contributions inconnection with the Software."

Thoughts?--Knulclunk (talk) 04:57, 29 December 2009 (UTC)

It says to other users of the Software and connection with the Software and using the Softwae and and other players’ use and inconnection with the Software. Doesn't sound like a free license to me since it's clearly limited to users of the software. Also most of the works will include EA copyrighted content I presume which they most definitely ain't releasing under a free license. Nil Einne (talk) 20:51, 7 February 2010 (UTC)

FOP example

Would you consider this image of USS Enterprise for illustration of section "Freedom of Panorama" ? It is a replica of USS Enrerprise on public desplay at Vulcan, Alberta, Canada. The Yeti 09:35, 24 September 2016 (UTC)