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

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

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

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

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

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 Perhaps they are over two decades out of date in their knowledge of copyright law; perhaps they are just bluffing.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

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

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

File:Malcolm McDowell Clockwork Orange (cropped).png

Any thoughts? UK-filmed film that was also released in US. Unclear if image originates from US or UK trailer. Movie itself almost certainly still copyrighted. Bremps... 00:28, 29 June 2024 (UTC)

I found the trailer on the Internet Archive https://archive.org/details/vm982760352 & also on Commons here. There is no notice and is credited to being published by Warner Bros; the American distributor. I would imagine it was the American film company that would have handled the distribution of the trailer and would likely have been first published there. PascalHD (talk) 02:01, 29 June 2024 (UTC)

Files on Commons need to be public domain in their home country and in the United States (excepting free licenses, of course, but that's not happening here). Would this be free in the UK? Or does this not count as UK-made at all? Bremps... 02:14, 29 June 2024 (UTC)

If the trailer was first published in the US, that would be the country of origin - not where it was created. PascalHD (talk) 16:00, 29 June 2024 (UTC)

And is there a distinction between us hosting the U.S. trailer in its entirety (U.S.-made, PD in U.S.) and taking a frame from it, when that frame is clearly of UK origin? - Jmabel ! talk 05:24, 29 June 2024 (UTC)

@Jmabel @PascalHD @Bremps - If the trailer was first published in the United States, or published within the United States within 30 days of its publication in the UK (availability within 30 days is called simultaneous publication in the law), then its country of origin for the purposes of US law is the United States. In other words, it is treated as a US work under US law (and so, for instance, failure to include notice means it is in the public domain, whereas if it were a foreign work it would be copyrighted due to the URAA).

The work might also be considered a domestic work under UK law for any number of reasons. However, when a work is simultaneously published in the US and some other country, it is a US work (under US law) and we allow for it to be hosted here — if, of course, it is in the public domain in the US. We have a template for this: Template:Simultaneous US publication.

Remember that "country of origin" under copyright law is not the same as "country where something was made." In fact, they have very little to do with one another for published works. Many films were shot in one country but first published in another country. The country of origin is the country in which the film was first published. The original Star Wars was largely shot in Tunisia but first published in the United States — and is a US work under US law.

Even if the trailer was edited in the UK, this isn't relevant. Only publication is. In order to be treated as a work of UK origin under US law, a frame of the video would have to have been first published in the UK, and then not published in the US within 30 days.

Everything in a US trailer published in 1971 without a copyright notice is in the public domain if the trailer is published before the film. Publication of the trailer without a notice is divestive publication, because the copyright holder lost common law copyright by publishing the work. Since no statutory copyright was claimed (because no notice was included), all the published material entered the public domain. All of those frames are in the public domain, too — even taken out of the context of the trailer. (The same frames are still in the public domain if found in and extracted from a print of the larger film, but, of course, they are only a very small minority of the frames included in the full movie. Sometimes, trailers were made only from outtakes, rather than including any of the actual frames used in the released movie — but I know nothing about this particular trailer.)

D. Benjamin Miller (talk) 06:33, 4 July 2024 (UTC)

@D. Benjamin Miller: isn't that dependent on the trailer having been made by the (prior) copyright holder? Would the distributor have owned that prior copyright?

If that first is not the case, does that mean that every time an "underground paper" that didn't bother with copyright used an AP or UPI photo, that photo passed into the public domain? - Jmabel ! talk 18:40, 4 July 2024 (UTC)

The trailer maker/publisher did not need to be the same entity as the prior copyright holder. It did need to be acting with the authorization of that copyright holder, though. If, say, someone stole the print and released a copy without a notice, that wouldn't be a lawful publication and there would be no divestment.

Needless to say, the makers of these trailers were universally acting under the authority of the copyright holders for the film.

Your other case is rather different anyway, but an unauthorized newspaper printing pirated AP photos without a notice didn't put those photos in the public domain. But it should also be noted that stock photos were already published when offered by the wire service for distribution to newspapers, and not only when the newspapers printed them; the photos normally (if copyrighted) included a notice as distributed by the wire service. Still, though, many press photos were published without a notice (although this was not so much for wire photos as it was for publicity shots and the like). D. Benjamin Miller (talk) 18:49, 4 July 2024 (UTC)

Belgian FOP and heavy retouching

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The basic argument here boils down to:

• Claim: This work is displayed in a public place in Belgium.
  • This much I think we can all acknowledge.
• Claim: There is a "freedom of panorama" exception in Belgium that allows for the free reproduction of this work.
  • This much is not exactly true. There is an exception, but it is highly limited. I have consulted the source, which is available in its official and authoritative form on WIPO-Lex in both Dutch and French. Here is my translation (from the French), for those who do not understand French or Dutch:

    Art. XI.190. When a work has been lawfully disseminated, the author cannot prohibit: [...]
    2/1. the reproduction and communication to the public of works of plastic, graphical or architectural art designed to be placed permanently in public places, so long as such reproduction or communication is of the work as it is found [in that public space] and neither interferes with the normal exploitation of the work nor unjustly prejudices the legitimate interests of the author.

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

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

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

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

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

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

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

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

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

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

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

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

Mass-changes of licences for maps?

User Kashmiri appears to have recently changed the licences of a few dozen maps, such as this one and this one, without prior notice. I am not sure if that is allowed, and even if so, I think such a move should have been discussed first. See also: Commons:Village pump/Copyright/Archive/2023/12#Mass-changes of licences for typeface samples?. --Minoa (talk) 21:47, 2 July 2024 (UTC)

That doesn't look entirely wise to me. I'd say it is not clear that would be PD in all countries, and I certainly would not have removed the license that is clearly valid anywhere, even if I added a comment that it is presumably PD. - Jmabel ! talk 22:43, 2 July 2024 (UTC)

@Jeff G.: I think I need help again in reversing the undiscussed licence changes by Kashmiri. I still don't have the tools or the time to mass-revert them all. Thanks in advance. --Minoa (talk) 22:49, 3 July 2024 (UTC)

@Minoa:  Done in these edits. @Kashmiri: What were you thinking?   — 🇺🇦Jeff G. ツ please ping or talk to me🇺🇦 00:24, 5 July 2024 (UTC)

I am fond of our {{Licensed-plus-PD}} for this very purpose. Maybe it should be advertised somewhere more prominent as a tagging option? Note that I haven't checked at all whether in this particular case the PD claims are appropriate or not in the first place. Felix QW (talk) 13:17, 4 July 2024 (UTC)

A CC licence essentially means that a person claims copyright first and then licenses their work for public use. Sure the work can be reused, but can that person claim copyright in the first place? I honestly doubt when the underlying map (country outlines) has not been their work. PD-map indeed gives the US perspective, however it can be safely assumed that the vast majority of those claiming copyright for maps on Wikipedia are not located in countries where the sweat of the brow doctrine is in force; it's simply that this is the licence template suggested by the image upload wizard.

I simply find it unacceptable when someone takes a map outline, places a dot on it, and then claims copyright, later kindly sharing "their work" under CC. — kashmīrī ^TALK 06:21, 5 July 2024 (UTC)

Do we actually know where the map outlines are sourced from? Couldn't they well be copyrighted, for choice of projection and all that? Felix QW (talk) 08:12, 5 July 2024 (UTC)

@Felix QW: Come on, please. Most of my edits were to maps where the underlying map was PD, and the only work of the uploader was adding colour to a few countries. That's all. We're not talking cartographers who create new, original projections; we're talking an editor who uploaded hundreds of maps titled "Diplomatic relations of country X"[2][3] In a few cases, the original work was entirely lost because of subsequent edits (like here[4] where new editors completely re-coloured the map from scratch, thus nullifying any copyright claims).

I'm not at all convinced that using a different projection gives rise to copyright, as projections are generated electronically these days using country border delineation that are public property.

@Jeff G.: , would you consider restoring my changes please? — kashmīrī ^TALK 16:59, 5 July 2024 (UTC)

Sorry if there was a misunderstanding - I didn't mean to say that the uploader had a copyright claim (or not). I agree with you that they probably don't, and I would advocate replacing the pure license tag with {{Licensed-plus-PD}} and a PD statement. I just thought it was strange that the same editor who claimed copyright on their colouring to a map often did not credit the outline at all, which may (or not) be a copyright issue in its own right. Felix QW (talk) 17:20, 5 July 2024 (UTC)

So, when is it okay to use a picture of a sculpture?

Dear people of the Pump,

I'd like to add some images of contemporary sculpture, mostly from near where I live in Canberra, starting with the sculpture that lives on top of the Parliament, a treatment of our coat of arms.

There's one available here which looks to be Creative Commons 4.0.

But I understand there's an extra sensitivity here - that even if you have the creative commons permission from the photographer, that the artist behind the sculpture may have some kind of claim too? Or is that relinquished when a sculpture is public?

Feel free to point me to the most helpful article or essay. I struggled to find one.

Matthew MatthewDalhousie (talk) 06:23, 3 July 2024 (UTC)

COM:FOP Australia is exactly what you need to read. --Geohakkeri (talk) 06:36, 3 July 2024 (UTC)

Thank you @Geohakkeri MatthewDalhousie (talk) 04:23, 4 July 2024 (UTC)

SkyNet Sarl Lebanon

Buenas, este logo (https://www.skynet-lb.net/) es simple (too simple) o complejo?? Se puede publicar a Wikimedia?? AbchyZa22 (talk) 06:51, 3 July 2024 (UTC)

File:Tove Jansson by Eemu Myntti.jpg

What to do with the file? I’m still a bit confused about the Commons URAA policy. It is stated that a mere allegation that the URAA applies to a file cannot be the sole reason for deletion; yet the template I added to the file page warns that unless a valid US PD tag is applied, the file will be deleted. Baffling, to say the least. --Geohakkeri (talk) 08:51, 3 July 2024 (UTC)

@Geohakkeri you are missing the previous sentence on that paragraph: files nominated for deletion due to URAA should be evaluated carefully, as should be their copyright status under U.S. and local laws. The "mere allegation" means, you should not open a DR or an admin should not close a DR under the suspicion the image had its copyright restored by URAA without giving clear evidence. Many works had not their copyright restored. For example, a movie may be simultaneously published in the US, or the country of origin had different copyright duration in the past, etc. Also, some works are protected by copyright in the US, but not in its country of origin. Günther Frager (talk) 11:21, 3 July 2024 (UTC)

Okay, so the files tagged with {{Unclear-PD-US-old-70}} are indeed deleted only after a careful evaluation and strictly on a case-by-case basis. Specifically, COM:PRP doesn’t really apply: an “unclear” file can quite well be kept unless proven to have its copyright restored. Right? --Geohakkeri (talk) 11:48, 3 July 2024 (UTC)

Ah, I see it’s spelt quite clearly in Commons:Licensing#Uruguay_Round_Agreements_Act: If the end result of copyright evaluation is that there is significant doubt about the freedom of a file under US or local law, the file must be deleted in line with the precautionary principle. So even though each case must be examined thoroughly, it’s still not necessary to go extreme lengths in order to tell that a file should be deleted. --Geohakkeri (talk) 16:22, 3 July 2024 (UTC)

Right. It usually takes a good knowledge of what the source country's law was on the URAA date, and whether copyright term increases were retroactive, etc. You can't necessarily assume that a current 70pma term was the same at that time, or that an increase was retroactive, so it can often involve looking back at historical versions of laws to find out what terms applied to the file in question. Finland did update their law shortly before the URAA date, as they had just become EU members, so it was likely a retroactive increase to 70pma, but that should be verified. Carl Lindberg (talk) 21:00, 3 July 2024 (UTC)

The Finnish copyright extension took effect on January 1, 1996 and was indeed a retroactive increase to 70pma. [5] --Geohakkeri (talk) 21:24, 3 July 2024 (UTC)

Medical images

What is the legal situation with medical images like ultrasound images? Just like the legal situation would be with any other photo in whatever country we are talking about? Like, copyright with the photographer (in that case, the doctor)? Or possibly the hospital that owns the machine may also claim rights? And what about the patient, does the image subject have personality rights that need to be respected when their insides are being photographed?

It's this image that just made me wonder. --2003:C0:8F0A:BD00:618A:90C3:E786:9E39 07:27, 4 July 2024 (UTC)

You can see this about medical imaging but not specifically about ultrasound images:

• Template:PD-medical
• Template:PD-US-Medical imaging
• Meta:Wikilegal/Copyright of Medical Imaging (mostly about x-ray images)
• Commons:Patient images

Some oldish discussions about ultrasound images:

• Commons:Village pump/Archive/2009/06#copyright of medical diagnostic images (such as ultrasound or x-ray)?
• Commons:Deletion requests/Ultrasound images should be copyrighted

However, most ultrasound images on Commons seem to have a claim of copyright and a license by their uploaders.

-- Asclepias (talk) 12:37, 4 July 2024 (UTC)

File:Kim Jong il Portrait-2.jpg

File:Kim Jong il Portrait-2.jpg is being used in quite alot of articles and it was previously discussed at Commons:Deletion requests/File:Kim Jong il Portrait-2.jpg. I'm not sure how {{FoP-North Korea}} applies to it and how this is considered acceptable for licensing verification. The uploader basically uploaded what looks to be a few selfies, an old photo of Abraham Lincoln and some portraits of deceased North Korean leaders. They haven't edited Commons or Wikipedia since July 2022, and were only a sporadic editor before that; so, it's not like they've established an impressive track record of uploadng content over a very long period of time. The permission statement eeems on the surface to check all of the boxes, but it also seems at the same time to be rather flimsy. Moreover, the uploader has signed his declaration as being "Jesse Charlie Photographer", but that would seem to imply this is photo of a portrait created by someone else, but there's nothing about the photographerd work at ll in the file's description. Does the FoP-North Korea license mean the uploader actually went there are photographed this portrait? Again, this seems a bit sketchy to me regardless of how many times this file is being used, but perhaps I'm just over thinking things and making too harsh of an assessment. -- Marchjuly (talk) 06:49, 5 July 2024 (UTC)

These portraits do seem to be displayed publicly in NK, e.g. [6] [7], so it is possible that the Commons files are derived from FOP-eligible photos. Their upload File:Abe-link.png specifies that it's a re-scan, which maybe does imply that they took the NK photos. Consigned (talk) 16:55, 7 July 2024 (UTC)

Copyrighted characters from no-FoP states displayed as murals et cetera in yes-FoP states

I would like to have some change in the usual practice of applying FoP of a work's country of physical location, in terms of works that depict copyrighted characters originating from countries without FoP for public art (like U.S., France, Japan et cetera). A part of comment from D. Benjamin Miller regarding the Asterix case above (Commons:Village pump/Copyright#Belgian FOP and heavy retouching) seems convincing, to quote:

The US incorporates its own "source country" test into the URAA. Under that test (Copyright Office explainer), the (single) source country for non-US works simultaneously published in multiple countries is determined based on which country has the strongest connection to the work. Being exclusively created by French authors in France, and without any potential ties to Belgium other than (let's hypothesize, for the sake of argument) simultaneous publication there, the underlying work here[, a Belgian mural of characters of Astérix,] is a French one, not a Belgian one.

We may need to reassess multiple "kept" deletion requests of works physically located in China, Mexico, and other countries where FoP is adequate, yet the works show characters of cartoons/movies/anime/manga from countries with no FoP. JWilz12345 (Talk|Contrib's.) 06:55, 5 July 2024 (UTC)

Some example deletion requests resulting to keep:

• Commons:Deletion requests/File:Leon hot air balloon festival 2010.jpg – SpongeBob Squarepants (USA) balloon in Mexico
• Commons:Deletion requests/Files in Category:Arena Suzano – Doraemon (Japan) in Brazil
• Commons:Deletion requests/Files in Category:Statue of Mazinger Z in Tarragona – Mazinger Z (Japan) in Spain
• Commons:Deletion requests/Files in Category:Batmobile – automobile of Batman (USA) in Australia
• Commons:Deletion requests/File:Harikalar Diyari Flintstones 06029 nevit.jpg – Flintstones (USA) in Türkiye
• Commons:Deletion requests/File:Evangelion Test Type-01 at the site of Shanghai Metallurgical & Mine Machinery Factory.jpg – Neon Genesis Evangelion (Japan) in China
• Commons:Deletion requests/File:Paste-up.jpg – Motoko Kusanagi from Ghost in the Shell (Japan) in Germany

JWilz12345 (Talk|Contrib's.) 07:22, 5 July 2024 (UTC)

@JWilz12345: These should not be viewed from COM:FOP. We have to look at it from COM:TOYS. Ox1997cow (talk) 04:33, 7 July 2024 (UTC)

Yes, I do think all images falling within this situation must be removed, but you are taking the reasoning a bit out of context. To be clear, this US "source country" test has nothing to do with applying non-US law's copyright exceptions in the US, because such exceptions don't apply in the US at all. (The source country test is from a totally different provision of US law.) The Commons community's stance on Not-free-US-FOP files is totally inconsistent with US law (as I explain in the section above). I know you don't like that — but it's not a matter of liking or preferring some outcome; it's a matter of what the law actually is.

But, purely for the sake of argument, if foreign exceptions (such as FoP exceptions for artwork) did directly apply in the US (though they don't), and if these exceptions truly provided for these files being free (which, in the Belgian/2D case, I don't think they do, but they might in some other cases), only then might a country-of-origin rule matter, legally

Beyond the clear legal error of accepting Non-free-US-FOP files at all, and the arguable error (depending on the case) in accepting FOP files in many cases where FOP restrictions (such as prohibiting derivatives, etc.) make a file "non-free" (such restrictions vary depending on country)... the whole position of allowing these files is clearly and obviously wrong.

Additionally, Freedom of Panorama exceptions don't make the underlying works free, and extracting the works from their FOP context is not an acceptable thing to do under the laws of any country I know of with FOP. FOP is meant to allow for the accurate depiction of items as part of the larger public environment in which they are found, not to make anything found in a public space essentially devoid of copyright. (This is not the kind of freedom that FOP exceptions generally really provide for non-architectural works in any case, despite the false assumption by many Commons users that this is more or less what FOP does!)

But let's imagine there were a country called Panoramaland which really did have absolute freedom of panorama. In Panoramaland, there is an exception to copyright which says that if a copyrighted work of art is put up in a public place, then anyone can take pictures of it and reuse it freely, create derivatives, etc. Then let's imagine a picture of Astérix or Mario or some other copyrighted character were displayed on a billboard in Panoramaland. The position of the Commons community would be that, since Panoramaland provides for absolute FOP for 2D art on billboards, such a file is allowed on Commons (and the FOP applies in the US, too). But if this were true, then Panoramaland would just be a panorama-laundering paradise, because anything placed in a public place in Panoramaland would effectively enter the public domain. This is clearly not acceptable.

D. Benjamin Miller (talk) 16:15, 5 July 2024 (UTC)

@JWilz12345 and D. Benjamin Miller: What is the source for the claim that "the (single) source country for non-US works simultaneously published in multiple countries is determined based on which country has the strongest connection to the work"? I don't see such a statement in the cited Copyright Office explainer. According to Article 5 of the Berne Convention, "The country of origin shall be considered to be … in the case of works published simultaneously in several countries of the [Berne Convention] Union which grant different terms of protection, the country whose legislation grants the shortest term of protection". This is also explained at Commons:Licensing: "In cases where a work is simultaneously published in multiple countries, the 'country of origin' is the country which grants the shortest term of copyright protection." Nosferattus (talk) 01:36, 7 July 2024 (UTC)

The only place where US law has a source-country test for copyright term is in the URAA rule of the shorter term provision. The URAA copyright restoration does not apply when the work was in the public domain in its source country (according to this test) on the restoration date (usually January 1, 1996). See Commons:URAA-restored copyrights. This source-country test is not the same as the Berne Convention's country of origin definition.

However, as I wrote above, this test is not at all relevant here, because the United States never applies foreign copyright exceptions based on the country of origin of a work (as determined by any test), and doing so would almost certainly violate the national-treatment requirements of the copyright treaties. So, again, to be clear, am NOT saying that this sort of test is legally relevant. I was only talking about if such a test were applied in an entirely hypothetical way, and JWilz12345 took what I wrote out of context. D. Benjamin Miller (talk) 02:37, 7 July 2024 (UTC)

Agree that extracting a work from its public context is never OK, even if there is FoP for the original photo. The Asterix extraction should be deleted. Similar for a photo kept under de minimis; if you crop to the copyrighted work then the result is no longer OK. FoP is meant to allow photos of public places, not a loophole to change the copyright of the underlying work.

For regular FoP photos, whether they would be free in the U.S. has not been tested in court -- probably not OK, and the one example we have of FoP laws in between countries (German case on a photo of an Austrian building) would tend to say photos primarily of sculpture would not be OK in the U.S. if the statue is still under U.S. copyright. It's still not definite though -- anyone putting a work up in such a country would know the laws there and would have to be OK with photos of it in the public context, and maybe a U.S. court would take that into account. The Itar-Tass Russian News Agency v. Russian Kurier, Inc. case did use foreign law to determine the copyright ownership, though used U.S. law to determine whether infringement occurred and what the penalties are. So, it's not impossible that a court could consider foreign law under some circumstances -- if they think a FoP law spoke more to copyright ownership or whether the plaintiff had the right to sue in the first place, they might. The FoP wrinkle is something that was not at issue in that case. FoP may or may not affect a fair use evaluation, as well. Given the uncertainty, the community decided long ago to allow such works, for better or worse, even if it may be more likely than not to be a problem in the U.S. If we get an actual court precedent, that could change things. If you can convince the community to basically delete all sculptural FoP photos from Commons because they are not likely to be OK in the U.S., then OK, but not sure this argument is anything different than has been argued before.

As for the "source country" definition in the URAA, that is only for the URAA and not any other portion of the law. That is the country of first publication, and publication even one day earlier than another country would define it. For works published on the same day in multiple countries, only then you get the "greatest contacts with the work" clause. But that is only to determine which laws to use to find out if a work was copyrighted on the URAA date for restoration -- not any other copyright situation. So that is largely irrelevant for FoP questions. Carl Lindberg (talk) 03:22, 7 July 2024 (UTC)

Just as an aside here: if it were to turn out that certain images prove to be legal for commercial use in their respective "source" countries and for non-commercial use in the U.S., then it remains a policy decision, not a legal decision, whether Commons continues to host them, since Commons itself is non-commercial. - Jmabel ! talk 19:17, 7 July 2024 (UTC)

There is no "non-commercial" exception in US copyright law. All copyrighted works can be used under he provisions of fair use. Whether or not a use is commercial can be taken into consideration, but it is by no means determinative either way — there are fair commercial uses and non-fair non-commercial uses.

More broadly, this entire debate highlights the incongruity of the application of FoP exceptions in the first place. Freedom of panorama exceptions are not hard and fast rules. And FoP exceptions, like fair use in the US, are use-dependent. Actually, in many ways, FoP exceptions can be more restrictive than the US' fair use provisions, since they are based on the principle of enumerating exceptions, while fair use is broad (and publicly displayed works could be photographed under a fair use justification, depending on the circumstances).

The issue here is that FoP has been wrongly interpreted by the commmunity as carte blanche to reuse an image freely, while, in fact, FoP is essentially like a specific type of fair dealing exemption, often with specific limits which make FoP files very much not free for reuse.

Besides this, was have the Wikimedia Licensing Policy, which requires that a project adopt an EDP in order to host any non-free content, and requires that such content's use be minimal. D. Benjamin Miller (talk) 02:11, 8 July 2024 (UTC)

… and which explicitly forbids Commons from adopting such a policy. - Jmabel ! talk 02:51, 8 July 2024 (UTC)

Many FoP clauses are indeed mostly carte blanche, for uses of the photograph, if it's reasonably a photograph of a public scene. Some are explicitly non-commercial, which we don't allow, though all have the "can't prejudice the normal exploitation" of the underlying work limitation. Germany has some limitations on where you can take the photo from, and the work must be "permanently" in public, but the law has no real limitation (beyond that Berne Convention one) on what use you make of the photograph itself. There was a 2017 ruling on use of photo of an AIDA cruise ship with copyrightable graphics, in advertisements for a cruise excursion company. Their main argument was that the ship did not count as "permanent", not the use made of the photo. The court ruled the ship was permanently in a public place, and the ads were fine. By that, it would seem selling a postcard of that image would similarly be fine. It is true that U.S. fair use is a lot more flexible, and will allow many uses not allowed in other countries, but is also not cut and dried over what you can do -- commercial use is one factor used in making the determination, but it is not decisive either way. Parody is a common commercial "fair use", while some non-commercial uses are not fair. I would say that FoP photos are pretty much free, but not when you start removing the public context -- at that point, you aren't making a derivative work of the photo, but directly of the underlying work, and I think you lose any FoP protection at that point. Carl Lindberg (talk) 03:05, 8 July 2024 (UTC)

I mean, I don't know what you take carte blanche to mean, but...

• In many cases, there is some sort of integrity requirement. According to Commons' page on German law, Germany's FoP exception only applies when no alteration is done to the copyrighted work. Even some fairly simple edits have been found to violate this requirement. The same sort of requirement seems to be present in Belgian law, too. We don't count CC-ND licenses as free, either. And if an NC restriction makes a work non-free (it does), how does an ND restriction not do the same?
• The main use of the photograph, in many cases, is to reproduce/depict the non-free work itself, rather than the object within a larger context.
• Even fairly technically simple reproductions can be especially prejudicial to the author's rights for certain types of work (esp. 2D art), as I argue above. Even putting aside the (prohibited for integrity reasons) restoration, the full reproduction of the Astérix mural itself would be highly prejudicial — depicting the 2D artwork itself in a non-transformative way interferes significantly more with core exploitation than photographing a building or even a sculpture.

D. Benjamin Miller (talk) 04:56, 8 July 2024 (UTC)

True, you can't make someone believe the work looks differently in public than it actually does. Those are akin to moral rights violations, which you can't make even on freely-licensed works -- the moral rights are usually not transferrable or voidable. It is not a ND restriction -- you can make many derivative works of the photo (cropping is fine etc.), but changing the nature of the depicted work is not allowed. I do agree, particularly for 2D works, that a FoP photo needs to show the public context -- the full mural (and cropped to just the mural) would also be a problem for me. Carte blanche may be a bad way to describe it, but the limitations are not based on what use you make of the photo, i.e. the context it is used in, unlike a U.S. fair use determination. Carl Lindberg (talk) 09:48, 8 July 2024 (UTC)

@Clindberg@D. Benjamin Miller@Jmabel@Nosferattus

I would again like to mention this interesting essay (shared by @Ciell: [Dutch-speaking Wikimedian] in the debate here), which is essentially one statement from WMF in which in the age of Internet since 2020s, the "one-law applies to all" no longer works. In this context, Internet use and access transcends beyond the borders of the physical servers' host country. This means Wikimedia sites may need to comply with the varied laws of other countries, as Wikimedia's influences like its global outcreach programs, Wikimania conventions, Wiki Loves competitions (esp. Wiki Loves Monuments) have expanded beyond the administrative lines of the United States. Enforcing US-FoP only approach will only risk WMF in the face of the influential French organization ADAGP, which may lobby in the European Union to censor Wikimedia sites, enwiki included, in the EU bloc (if, hypothetically, enwiki's FoP-USonly rule begins to affect royalty incomes of architects of buildings found in France, Estonia, Greece, or Luxembourg). On the other hand, Wikimedians from countries like the Netherlands will be adversely affected, as they decided to deactivate most local uploading; they rely on Wikimedia Commons to host images of their post-1929 monuments. Note that the Netherlands was the first community to hold "Wiki Loves Monuments" (in 2010), which expanded to the entirety of Europe the next year and became international the following year (2012).

I would again like to reiterate that there are current efforts being made by Discott and other users from South Africa for the introduction of FoP there. Their main motivation to have FoP introduced there: for Commons to finally be able to host sculptures from South Africa like Nelson Mandela statues and artworks relating to the struggle of Africans during the apartheid and post-apartheid eras. Also, meta:Pilipinas Panorama Community (of which I am a member of) is making connections to several stakeholders here (see this), so that the thematic community can have the leverage in the legislature for the introduction of FoP reform in our country. And finally, the Wikimedia region covering the East and Southeast Asia as well as South Pacific (ESEAP) held their 2024 conference in Malaysia (a full FoP state up to 2D works), and a major segment of their conference was devoted to Freedom of Panorama movements in the Wikimedia region (meta:ESEAP Conference 2024/Submissions/Free the Freedom of Panorama in ESEAP), to gather ideas and initiatives on how to liberalize FoP in around 17 countries that still do not provide complete FoP up to sculptural monuments (the likes of Indonesia, Japan, the Philippines, South Korea, and Taiwan). A vision of many Wikimedians in ESEAP region is having liberal FoP – up to sculptures – in the entire ESEAP region. JWilz12345 (Talk|Contrib's.) 08:32, 8 July 2024 (UTC)

Sorry, but your interpretation of this essay is completely backwards. I have pointed this out in discussions with you elsewhere. There is no legal way for the WMF to ever ignore the requirements of US law. Any invocation of foreign law in the Wikimedia context means adding restrictions based on foreign law. Between the US and foreign law, the more restrictive rule would be followed. You are advocating for the less restrictive law to be followed. That's not how things work.

For comparison, Commons has a rule that everything must be free in the US and the country of origin. You're asking for the equivalent of free in the US or the country of origin. You cannot do that, because Commons is still hosted in the US.

That users outside the US might prefer if they had the ability to upload pictures that aren't free in the US cannot override the restrictions of US law. D. Benjamin Miller (talk) 14:36, 8 July 2024 (UTC)

German currency files without machine-readable license

See Commons:Village_pump#German_currency_files_without_machine-readable_license Jarekt (talk) 12:58, 5 July 2024 (UTC)

Company logo

Hi, I need help with uploading a company logo. I want to add it to the article about the Polish branch of a company on Wikipedia. I don’t know how to add this logo to ensure it’s compliant with copyright laws. I don’t own the rights to it, so I can’t upload it directly. It redirects me to Wiki Commons. I have permission to publish it, but I don't have information about whether it’s under any license. I tried to find out how other brands upload their logos, but after clicking on them, it takes me to a page where there is no such information. Under the license heading, it says the logo is not copyrighted and the image is in the public domain. However, in the commons upload wizard in step 3 (release rights) at point 4, it is required to indicate that I am certain the image does not contain protected elements such as logos...

I’m confused and don’t want to infringe on copyright. :( Please help. Bonnjourr (talk) 12:59, 5 July 2024 (UTC)

There are two questions here: The first is whether the logo is above the threshold of originality in the source country of the logo (COM:TOO). If yes, you can only upload it if you can obtain a free license from the copyright holder and prove it, either by the copyright holder marking the license on their website or by the copyright holder sending it to VRT. If no, then you can upload it yourself, since it is free of copyright. Felix QW (talk) 08:55, 8 July 2024 (UTC)

@Bonnjourr: further, you don't say what language Wikipedia this is about. Many of the Wikipedias have provisions to host low-resolution versions of non-free logos themselves (not involving Commons) when needed for articles. See Wikipedia:Non-free content for the relevant policy for the English-language Wikipedia; for other Wikipedias that have policies for that, the policy pages are linked from there in the usual manner for interwiki links. - Jmabel ! talk 17:45, 8 July 2024 (UTC)

Should it be for the Polish Wikipedia, then there are indeed no local uploads or fair-use provisions though. Felix QW (talk) 17:07, 9 July 2024 (UTC)

Create custom template for images from MerrionStreet.ie Flickr account, mirroring Number-10-flickr

Hello there,
www.MerrionStreet.ie is a website run by the Irish government/state as a "Government News Service". On the website's copyright page , it notes that all

All the information featured on our website is the copyright of the MerrionStreet.ie unless otherwise indicated. You may re-use the information on this website free of charge in any format. Information and documents obtained from this website may be reproduced and/or re-used subject to the latest PSI licence available at www.psi.gov.ie.

Link to www.psi.gov.ie

A custom PSI template is already exists here on the Commons, please see Template:Oireachtas (Open Data) PSI Licence created by @Neveselbert // @Neveselbert (mobile)

As part of it's operation, www.MerrionStreet.ie runs a Flickr account, found here. Unfortunately for us, www.MerrionStreet.ie does not upload these images under a creative commons license. However, I believe they should be as part of the law stated on their own website. As far as I can see, everything created or upload by www.MerrionStreet.ie is a part of its purpose, which is entirely covered under the copyright section of their website. That section clears states it's all under PSI.

Have you contacted this agency about this? I contacted www.MerrionStreet.ie directly several times in Spring 2023, both by e-mail and phone. While I was told that the agency would review their upload policy, they neither made any changes to the Flickr account nor informed me of a final decision. A classic case of kick the can down the road and hope it goes away. Look, the agency actually falls under the Office of the Taoiseach, the highest political office in Ireland, so it's likely extremely busy on a consistent basis and was never going to prioritise this request (sadly).

Recently, I've discovered the existence of Template:Number-10-flickr; a template which supersedes the stated license on Flickr and follows British Law/policy instead. Given the existence of Template:Number-10-flickr, there should be no problem creating the exact same kind of template for MerrionStreet.ie, which is an almost identical entity in Ireland.

This is my second time making this request; previously I made a request to Commons:Village pump/Copyright >>>here<<< but unfortunately did not get any engagement, which was quite disappointing.

Hopefully this time we see this thing through. CeltBrowne (talk) 16:52, 5 July 2024 (UTC)

I created Template:MerrionStreet.ie, I think this is what you asked for. - Sebbog13 (talk) 17:50, 5 July 2024 (UTC)

Oh, you meant for their Flickr account, I missed that. - Sebbog13 (talk) 17:51, 5 July 2024 (UTC)

Yes, I need the template to cover the Flickr account as well please. CeltBrowne (talk) 17:58, 5 July 2024 (UTC)

I've altered the template myself to try and incorporate the Flickr account. CeltBrowne (talk) 19:03, 5 July 2024 (UTC)

A big difference though is that Number 10 Downing Street has this information in the about page of their Flickr feed, rather than on a website and in a wording referring specifically only to the website as such. I do see your point, but I think there should be slightly more engagement here before uploads are tagged with this new template. Felix QW (talk) 06:48, 6 July 2024 (UTC)

• I don't think the release on MerrionStreet.ie covers photos on their Flickr account. The copyright release specifically says All the information featured on our website (emphasis mine), so does not cover content published on other websites like Flickr. As Felix QW points out, Number 10 is a different situation, their Flickr page explicitly releases the Flickr content under a free license. Consigned (talk) 17:06, 7 July 2024 (UTC)

  The lines are more blurred then they first appear; MerrionStreet.ie used to use Flickr as an image host. Images from the Flickr account would simultaneously appear on MerrionStreet.ie and the MerrionStreet.ie Flickr account. So for example, an image of Brian Cowen and Owen Patterson appears both here on MerrionStreet.ie and here on the MerrionStreet.ie Flickr account. It's the same government body uploading the same images to what is/was essentially two half of the same website.

  If we go to https://www.merrionstreet.ie/merrionstreet/en/gallery/ there are explicit links to the Flickr account as well as the statement Double click on any photo to see text information about the event on the MerrionStreet.ie Flickr page…. In my view, the "main" site and the Flickr are clearly supposed to work in unison, not separately. CeltBrowne (talk) 09:01, 8 July 2024 (UTC)

  The https://merrionstreet.ie/en/copyright-and-disclaimer/ page also says This website uses non-government sites to make information and services more widely available. Sometimes we are directly engaging with you on these sites, sometimes we use these services because we want to be where you already are. It is important to remember that these are commercial sites and are not required to follow government standards. It’s always a good idea to be familiar with the privacy policies and rules of these sites. You can usually find links to policies at the bottom of the page (footer) or sometimes at the top (header). This is confusing because the first usage of the term "this website" is used to describe the merrionstreet organization rather than just the website. But still, this paragraph confirms that content on other non-government sites (like Flickr) follow their own rules (i.e. content on Flickr follows the licenses on Flickr). Consigned (talk) 12:23, 8 July 2024 (UTC)

Scan of an open letter published in The Times in 1971 and signed by 50+ persons

Hello, I have a scan of an open letter published in 1971 in The Times and signed by more than 50 people. Is there a specific rule in such a case or will it be in the PD 70 years after the death of the last signatory? Ayack (talk) 17:32, 5 July 2024 (UTC)

Yes, as a collective work it will be protected until the last of them dies. That is to my knowledge. Bedivere (talk) 03:30, 6 July 2024 (UTC)

It is not necessarily a collective work, I don't think — or, at least, not necessarily the collective work of all the signatories. Signing onto an open letter (or petition, or the like) doesn't imply authorship. It depends on the actual facts. In any case, though, the copyright on this letter is nowhere near expiring in the UK (whenever it expires), nor in the US (where the copyright presumably expires in 2067). D. Benjamin Miller (talk) 05:53, 6 July 2024 (UTC)

Thank you both. I understand that I'll have to wait some years before uploading it to Commons... Ayack (talk) 14:55, 6 July 2024 (UTC)

There may be a copyright issue

I'm not sure if I'm reporting this to the right place, but these images seem to have copyright issues. There are also problems with the metadata.

• File:Bozkurd Wolf finger.jpg
• File:Wolfsgruß Graue Woelfe.jpg

Pragdon (talk) 19:02, 6 July 2024 (UTC)

@Pragdon: The first might well have copyright issues (I can't read Farsi, so I cannot tell whether the source page offers a license). I fail to see the issue with the second, can you please spell it out? - Jmabel ! talk 02:25, 7 July 2024 (UTC)

Licensing concerns for category

Hi! I don't know what I'm doing, but according to the page header this is a good venue to ask about copyright issues for specific files. My concern is with Category:Bobbie R. Allen (40), most / all of which have been uploaded by connected contributor User:Wdallen49, with the incorrect source {{Own}}.

Most of these materials appear to be US government public domain, with some other unclear bits. I'm so stupid at copyright I literally don't even know if US government public domain is the same as "free content". Can someone who knows better please have a look through this category? Folly Mox (talk) 13:23, 7 July 2024 (UTC)

Yes, the contents of that category deserve thoroughgoing review. Quite possibly most will turn out to be U.S. government pictures in the public domain, but we can't just assume that. They also need accurate dates.

@Wdallen49: do you care to address this at all and explain what thought you were doing?

- Jmabel ! talk 19:31, 7 July 2024 (UTC)

- Jmabel I obviously don't know enough about Wiki's source formatting rules to satisfy the circling sharks, but I'd be happy to address specific concerns if anyone is interested in furthering improvement of the article. Wdallen49 (talk) 20:11, 7 July 2024 (UTC)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

File:AAAF Logo CAO 2 Apr 24.png

File:AAAF Logo CAO 2 Apr 24.png is almost certainly not the uploader's "own work", but I'm wondering if it might be {{PD-USGov-Military-Air Force}} based on this and en:Assocition of Africn Air Forces. -- Marchjuly (talk) 12:56, 8 July 2024 (UTC)

Files needs to be transferred from zh.wikipedia to Commons

根據Wcam回覆，照片是在zh.wikipedia上傳，需要仰賴人工手動轉移至Commons這裡，因此我請求有這方面技術經驗的人協助。

需要轉移的照片有：

• zh:File:355bus.jpg
• zh:File:TCBus,325.jpg
• zh:File:Ubus,EAL-1282,308副.jpg
• zh:File:TCBus_EAL-0397.jpg
• zh:File:Ubus,301.jpg
• zh:File:臺南市政府消防局救護車(公園91_BUE-0272).jpg
• zh:File:臺南市政府消防局救護車(新化91_BUW-2539).jpg
• zh:File:高雄市政府消防局救護車(瑞隆92_BQJ-6365).jpg
• zh:File:新北市政府消防局救護車(新店91_BKP-1513).jpg
• zh:File:葛瑪蘭客運_0968路_803-FZ.jpg
• zh:File:Kamalan_Bus_359-FQ_Yuanshan_Bus_Station.jpg
• zh:File:KKB-0253_936路線_圓山轉運站.jpg
• zh:File:已完成–送審中-4.jpg
• zh:File:學甲下溪洲空照.jpg
• zh:File:新筏仔頭_-_空拍1.jpg
• zh:File:新筏仔頭_-_空拍2.jpg
• zh:File:中華航空A321neo108.jpg
• zh:File:Mitsui_outlet_in_Linkou,_Taiwan.jpg
• zh:File:Tamsui_Fisherman's_Wharf_01.jpg
• zh:File:Shield,used_by_cibstu.jpg
• zh:File:CIB_STU,Taiwan_police.jpg
• zh:File:The_nose_compartment_cover_of_the_UH1H_helicopter_used_by_the_Republic_of_China_is_opened.jpg
• zh:File:MP5K_PDW,Used_by_Taiwan_Taipei_City_swat_team,left_side.jpg
• zh:File:Colt_m4_carbin,Used_by_Taiwan_Taipei_City_swat_team,left_side.jpg

--125.230.78.236 17:10, 8 July 2024 (UTC)

Policy and laws

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

17th century painting by Reinier Nooms

This painting was made by Reinier Nooms (1623/1624–1664) in 1661. It says copyrighted on Flickr, but it should be public domain. -Artanisen (talk) 02:52, 10 July 2024 (UTC)

The painting is PD; the photograph (which includes the frame and a tiny bit more) you could argue is copyrightable. If you crop to just the painting, it's fine. Carl Lindberg (talk) 02:58, 10 July 2024 (UTC)

I think the notion that the non-painting parts of the photograph constitute an original copyrightable work in (pretty much any) country is pretty absurd, but ideally the photo would be slightly cropped to show only the painting anyway.

More generally, a lot of items on Flickr are listed as copyrighted but are in fact PD — or, in some cases, are listed as licensed when they aren't. This painting is certainly in the public domain; we can ignore the tag on Flickr if we know it's not correct. D. Benjamin Miller (talk) 03:09, 10 July 2024 (UTC)

For sure, COM:LL can be a problem when it comes to Flickr, which one of the reasons the practice of doing what you're describing is often referred to as "en:Flickrwashing", and Commons can and does ignore an invalid claim of copyright in such cases. However, Commons does treat the frame in photos of framed PD paintings as a possibly copyrightable element per COM:FRAME; so, ideally it would be best to take a new photo of the same painting (if possible) minus the frame or find an existing photo that's frameless. There's also the option of using the template {{Non-free frame}} if the file has already been uploaded. -- Marchjuly (talk) 04:52, 10 July 2024 (UTC)

I have uploaded this picture, sans frame, as File:Reinier Nooms - View on the IJ in front of Amsterdam.jpg. D. Benjamin Miller (talk) 05:34, 10 July 2024 (UTC)

Lawrence Livermore National Laboratory images

There are a bunch of files on Commons that are listed as government works that are from the Lawrence Livermore National Laboratory website, which is a government contractor, and I think does not automatically release its images into the public domain. I found this CC-BY-NC-SA notice, which I think means the photos aren't in the public domain. I tagged those (this and this one). The problem is, this geese image and this lab image got posted on the US DOE flickr account (geese image post) (which apparently exists) as "United states government works", which I infer are free from copyright (the lab image at least must be taken by an LLNL employee since it's in the lab). Does anyone know if I'm just wrong on how government contractor copyright works? Also, does that count as the DOE releasing the images? Even more than that, LLNL has its own Flickr account and posted the same geese image as "All Rights Reserved". I'm feeling like it needs to be deleted, but I'm not sure. Mrfoogles (talk) 05:50, 10 July 2024 (UTC)