Commons:Deletion requests/File:WP on Getty images with watermark.jpg

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File:WP_on_Getty_images_with_watermark.jpg

Includes a clearly visible AFP logo watermark in the center of the image, which I believe rises above the threshold of originality. Although the image is derivative of CC-BY-SA content, we cannot assume any such work is CC-BY-SA. Rather, such works are in breach of the license terms, and the copyright holder of the original CC-BY-SA work can demand compliance, but the copyright holder has not expressed any intention of doing so. None of the parties involved, and in particular AFP, released this work under a free license (even though by not doing so they are in violation of copyright). Moreover, I'm reasonably certain AFP's logo was applied without their consent.

If the AFP watermark were removed, this image would be fine, as the Getty logo is not copyrightable, and the WP content is all suitably licensed or copyrighted by WMF. Dcoetzee (talk) 13:49, 19 January 2012 (UTC)

•  Delete We don't need this picture. It's so damn easy to recreate it for every person having only notebook, cameraphone, and the Internet, so it do not worth all that trouble for us and our downstream reusers. Trycatch (talk) 16:34, 19 January 2012 (UTC)

• KEEP - sorry if I go on at length here, but the watermarks are the key part of this image, and I find them offensive. I should first say why I find them offensive.

AFP and Getty have the right to copy, distribute, and sell the image - no problem - but only if they distribute the work under the CC-BY-SA 3.0 or similar license, see human-readable summary. Unfortunately, I'll probably have to get into the Legal Code (the full license), but that makes clear that the "but only if" clause is very strict and that I have rights under the license (not just Wikipedia) that can't be waived, and that, once they violate the license, they have no rights under the license.

What they did is analogous to selling tickets to walk across the Brooklyn Bridge. Of course, the right to walk across the Bridge is free to anyone, but if somebody wants to sell tickets in an appropriate place without misrepresentation, that's fine, perhaps as "Souvenir Tickets". But AFP and Getty misrepresented the case by putting watermarks and a copyright claim on the image. So this would be like somebody putting up a booth in front of the walkway and saying "you have to buy one of these tickets to cross the bridge." That's fraud.

From the legal code: "4. Restrictions. The license granted in Section 3 above is expressly made subject to and limited by the following restrictions:

You may Distribute or Publicly Perform the Work only under the terms of this License. You must include a copy of, or the Uniform Resource Identifier (URI) for, this License with every copy of the Work You Distribute or Publicly Perform. You may not offer or impose any terms on the Work that restrict the terms of this License or the ability of the recipient of the Work to exercise the rights granted to that recipient under the terms of the License. You may not sublicense the Work. You must keep intact all notices that refer to this License and to the disclaimer of warranties with every copy of the Work You Distribute or Publicly Perform. When You Distribute or Publicly Perform the Work, You may not impose any effective technological measures on the Work that restrict the ability of a recipient of the Work from You to exercise the rights granted to that recipient under the terms of the License."

My reading - they can only distribute the work as CC-BY-SA (or similar) and can't impose any additional terms on the recipient (me). They cannot sublicense. So AFP took the photo, sublicensed it to Getty, who distributed it under a copyright claim. They are both clearly in violation of the license.

"6. Limitation on Liability. EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR BE LIABLE TO YOU ON ANY LEGAL THEORY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF THIS LICENSE OR THE USE OF THE WORK, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES."

This says that they can't hold Wikipedia liable for anything related to this image. Since the usual reason for deletion requests is to protect WMF from liability, this limitation on liability is quite important.

"7. Termination

This License and the rights granted hereunder will terminate automatically upon any breach by You of the terms of this License. Individuals or entities who have received Adaptations or Collections from You under this License, however, will not have their licenses terminated provided such individuals or entities remain in full compliance with those licenses. Sections 1, 2, 5, 6, 7, and 8 will survive any termination of this License."

Since they have violated the license, they have no more rights under it, but they still have all the duties (the numbered sections mentioned). However, I still have rights, having received their Adaptations (image with watermarks).

"8. d. No term or provision of this License shall be deemed waived and no breach consented to unless such waiver or consent shall be in writing and signed by the party to be charged with such waiver or consent."

The nominator seems to say that the license is not in force unless Wikipedia decides to enforce it. Clearly not the case. I (the recipient) have rights under the license.

I'm a bit confused by the nominators "I'm pretty sure AFP did not intentionally release their logo under a free license." Is he saying that they unintentionally violated the license? I don't see anything in the license about unintentional violations - but in any case, the only thing about AFP's watermark that will be freely released is the watermark on top of this image. As with any watermark - its image is pretty fuzzy and transparent. It's not like they are being deemed to have given up their logo to a free license. Smallbones (talk) 17:35, 19 January 2012 (UTC)

Convenience break

• • Revised my text. I agree that this image is a copyright infringement by the people who created it (and that's bad). I do not agree that it can be used under a CC-BY-SA license. It was never released under a free license, and additionally the logo was most likely added without AFP's knowledge or consent. I also don't think it's de minimis in this context, since the watermark, as you said, is kind of the whole point of the image. Dcoetzee (talk) 18:55, 19 January 2012 (UTC)
• "Although the image is derivative of CC-BY-SA content, we cannot assume any such work is CC-BY-SA" - why? AFAIK any derivative work must and is CC-BY-SA content (or similar license) Bulwersator (talk) 18:44, 19 January 2012 (UTC)
  • I already explained this above. A derivative of a CC-BY-SA work is not automatically CC-BY-SA. The CC-BY-SA license merely states that in order to legally distribute a derivative work, you must release it under a CC-BY-SA license, or else you are violating the copyright of the author of the original work. In this case, it is the latter: the photographer is violating the copyright of the author of the original work, but has not released their derivative work under a free license. Dcoetzee (talk) 18:52, 19 January 2012 (UTC)

• • • I'm trying to figure this out, but think that Dcoetzee is arguing a very fine point at best. Sorry, but I can only adress this in analogies. Say a merchant puts out a sign and a basket of sandwiches "In celebration of xxx, take a sandwich, and one for a friend as well!" I see somebody grab 3 sandwiches who says he plans to sell them and I take one of the three away from him. DC is arguing that he could have me arrested for theft since he didn't put out his own sign. I don't buy it. He needs to have "clean hands" before he can make any claim against me. No US court would ever convict me in such circumstances.

There's something I don't understand about this - but DC seems to be saying that AFP has clean hands - that they are just innocent bystanders. Why do you think this? As professional journalists covering Wikipedia, they should know about the CC-BY-SA license, but they choose not to use it. Getty certainly knows about the free license as they identified Wikipedia as a "free information provider" in the caption of the picture. Getty has been told about the violation and have chosen to ignore it, the picture and a similar one are still listed as copyrighted on their website.

Finally (on this) the license always refers to "this license" or occasionally "the license" but never to a second license (presumably granted by Getty to me). It looks to me like it's all one license ultimately granted to me by the original Licensor - Wikipedia. Smallbones (talk) 19:52, 19 January 2012 (UTC)

I may have been mistaken about that part as I'm unfamiliar with AFP. It may also be true that we would not be held liable for promulgating an image which is itself a copyright violation, akin to our graffiti policy. I'm certain the image is not CC-BY-SA, but I'm not sure what to call it. It has some contributions from WMF, some CC-BY-SA contributions, and a contribution from a photographer who did so illegally. To make an analogy, it's like I put up a statue under CC-BY-SA, and some graffiti artist tagged it and ran away - what would the license of the resulting work be? Dcoetzee (talk) 20:01, 19 January 2012 (UTC)

Filling in some of the blanks. AFP is Agence French Presse the French news wire organized as a non-profit similar to the BBC. They are offering the same photo and other similar ones with the same captions taken by AFP and Getty photographers. Copyright is not explicitly claimed for any photo there, but payment is enforced by an "electronic gateway" and watermarks and a user agreement. Their watermark there is not up to the "threshold of originality." So Getty and AFP market each other's photos.

I still think it's a fine point saying it is not CC-BY-SA, but I'd think it is at least as strong a case to have it on Commons as Graffiti. Making that case, however, needs a long process, which we might as well do here. Please don't delete the photo before the process is through, or inform me first and I'll put it on Wikipedia as "Fair Use" for the time being. Then, hopefully, folks could express brief opinions about whether this is a) CC-BY-SA b) equivalent to graffiti or c) other. Does that work for everybody? Smallbones (talk) 21:21, 19 January 2012 (UTC)

Yes, if we do decide to delete this image from Commons, it should be uploaded at en-wiki as fair use; I added it to the en:Copyfraud article as an example. cmadler (talk) 10:59, 20 January 2012 (UTC)

Pretty pointy, I have to say. Btw I am sure that it's not possible to upload this picture under fair use policies, because there are a lot of free examples around. It's an inner en-wiki problem, however. Trycatch (talk) 11:34, 20 January 2012 (UTC)

Template:Non-free copyfraud (based on Template:Non-free graffiti)? Bulwersator (talk) 12:58, 20 January 2012 (UTC)

I'll suggest Template:Unlicensed CC-BY-SA derivatives instead, there's no need to use the word copyfraud. Smallbones (talk) 15:34, 20 January 2012 (UTC)

•  Delete Just like English Wikipedia sometimes accepts the images without accepting the licence these images are under it is possible to do the same for the free images. For example, the creator of that image can argue that they believe that the original CC-BY-SA image was in fact de minimis (i believe that it's not) or that they distribute it under fair use (i believe they just may get away with that). While i also believe that it would be an interesting case to see if the US court would support the copyright infringer's right to sue somebody else for copyright infringement, we do have a policy here to only accept free images, and this one isn't free. VolodyA! V Anarhist Beta_M (converse) 14:30, 20 January 2012 (UTC)

By the plain reading of CC-BY-SA, the image is CC-BY-SA. The "fair use" argument seems bizarre to me, since they are free to use the image however they want, including selling it, as long as they don't try to restrict others from using it. In any case their fair use argument would imply that we have fair use as well - which in no way would mean that we are just claiming fair use here. This image is CC-BY-SA according to the plain meaning of the license. The argument that "lawyers might argue that ..." has its limits. Lawyers can argue anything that they want, the point is whether that can argue something within the realm of believability.

BTW the image has been removed twice from the article en:Copyfraud Smallbones (talk) 15:34, 20 January 2012 (UTC)

Sorry, but you seem to misunderstand how fair use works. The fact that somebody uses the images as fair use very explicitely does not imply that another person's use would also be fair (that is why fair use is not allowed on Commons, we can't pass on that right, and thus any licence based on that is irrelevant). You have also missed the point about the way licences (any - free or not) work, they are on top of the copyright, and you can agree or disagree with the licence. Fair use is the law of the land dealing with the copyright, you can claim fair use without ever having to accept the licence. So if i use the image under fair use and the image is under the licence which demands that i release my work for free or demands that i cut off my right nipple, i can simply never agree to that licence. Yes, they could have agreed to the licence, and in fact they would have many more rights if they would, so they are dumb for not doing that (basically they want to restrict others so much, that they restrict themselves in the process, for example under fair use they will be disallowed from displaying this image anywhere not relating to the blackout) but stupidity is not a reason to violate their copyright. VolodyA! V Anarhist Beta_M (converse) 02:31, 21 January 2012 (UTC)

Sorry but you completely misunderstand the argument. Wikipedia doesn't need any license from anybody or any fair use defense to use the Wikipedia part of of the photo AFP took of Wikipedia. The only possible question is about the added material - the watermarks. Now if Getty/AFP claim fair use for their photo based on the claim that it is reportage, the same standard must hold for Wikipedia's reportage. If they claim that their use of Wikipedia's text and logo is minimal, they must recognize that Wikipedia's use of their watermarks is also minimal (since the AFP mark is essentially the same size and much less visible than the Wikipedia logo). If they claim that their use of the Wikipedia material has no effect on the value of the material to Wikipedia, they must recognize that Wikipedia's use of their material has no effect on its value either (especially since the part they are selling is freely licensed Wikipedia property). They may not have to accept the CC-BY-SA license, but they can't claim one set of laws for their use and then say the same laws do not apply to Wikipedia.

Finally, fair use is meant to be a benefit to the public. That is its sole purpose. The public cannot benefit by simply copying a freely licensed image and then trying to impose restrictions on it. Smallbones (talk) 04:55, 21 January 2012 (UTC)

Yes, i agree completely; if Wikipedia will chose to use this image to report on this incident (or for example Wikinews) that will automatically make this image (if used on that page) fair use, because as you point out the addition of the watermark is a minor issue, it's the fact that the image exists that is being reported. Now, we are not Wikipedia nor Wikinews. This is Sparta Commons, and here there's been a long standing, and unlikely to ever change policy against fair use justification to keep an image. Now, de minimis is another story, and if the image would be a screen capture with the watermark, i would probably say that it's a keeper, but the image is not a faithful reproduction, it's an artistic representation of the computer screen from the specific angle. It is because of that that i believe that it holds copyright of its own. VolodyA! V Anarhist Beta_M (converse) 05:08, 21 January 2012 (UTC)

But my claim is not that this is a fair use of their image. Their image is, according to the plain language of CC-BY-SA, also CC-BY-SA. The only argument with you above is whether they could claim "fair use" to sue Wikipedia, and my response is that that claim by them would be beyond the range of believability as it would automatically allow our use of "their" image by exactly the same arguments and law. I further show that any use of a "fair use" argument by them is against the stated purpose of the "fair use" law: to allow the public freer use of copyrighted material in reasonable situations. They, rather, try to limit the public's use.

If you would like to say that this reasoning is untested and the situation is similar to the use of graffiti by Commons, then I suggest that you support the Template:Unlicensed CC-BY-SA derivatives which would have a similar warning as the graffiti template. I am not strictly against this type of template, but think it un-needed, simply because our image of their image of our image is clearly CC-BY-SA. The fact that they have no believable claim of "fair use" to use against us is irrelevant to my claim that this is CC-BY-SA. Smallbones (talk) 17:22, 21 January 2012 (UTC)

• KEEP - The idea of a template or other warning that someone has failed to correctly treat a CC-BY-SA work is a good one. If nothing else, it serves as a way of sorting out such evidence if Creative Commons ever wishes to do a test case. Allens (talk) 06:31, 22 January 2012 (UTC)
• I would tentatively support keeping the image with such a tag, provided that in the future we can revisit images with that tag, as needed. Dcoetzee (talk) 07:21, 22 January 2012 (UTC)

Making a template

Sorry that I don't know how to make a template - so I hope somebody else can do it. Also the wording and any linked explanations should be considered or reviewed by somebody else, but I'll try for the wording on the template:

"Unlicensed CC-BY-SA dervivative

This work is a derivative or adaptation of an image licensed under CC-BY-SA which is required by the license to also be licensed CC-BY-SA. The adaptor of the original image, nonetheless, failed to post a CC-BY-SA license. It is the widespread belief among editors at Wikimedia Commons that the adapted image is licensed CC-BY-SA, despite the adaptor's failure to comply with the license. However, this legal issue is untested, and caution in reusing this work is warranted."

This is very roughly based on the Template:Non-free graffiti.

Any help, review, discussion appreciated. Smallbones (talk) 19:54, 23 January 2012 (UTC)

I don't think it's accurate that that's a widespread belief - I don't think that position would get consensus in a discussion. I would be more amenable to a claim that (similar to the graffiti template) "It's unlikely a judge would uphold copyright action by a party who violated copyright in creating and distributing the work." Dcoetzee (talk) 23:45, 23 January 2012 (UTC)

After thinking about this issue for a few days, I think Dcoetzee's suggested wording better captures the situation. cmadler (talk) 11:09, 24 January 2012 (UTC)

Incorporating the suggestion:

"Unlicensed CC-BY-SA dervivative

This work is a derivative or adaptation of an image licensed under CC-BY-SA which is required by the license to also be licensed CC-BY-SA. The adaptor of the original image, nonetheless, failed to post a CC-BY-SA license. It's unlikely a judge would uphold copyright action by a party who violated copyright in creating and distributing the work. However, this legal issue is untested, and caution in reusing this work is warranted."

As far as what's said below, that's a completely different matter. See my comment there. Smallbones (talk) 17:30, 24 January 2012 (UTC)

That is not accurate. To be a derivative work, an author must add enough material to be copyrightable on its own, and the author owns that copyright. That material, to be hosted here, must be licensed by the author and nobody else. If it is deemed derivative of some CC-BY-SA work (and I am far from convinced about that -- they have a fairly viable fair use argument in my opinion, if there is indeed anything copyrightable in the portion of the screen they actually used to begin with), then distributing the derivative without permission of the owner of the underlying copyright is a copyright infringement, sure. At that point, the copyright owner of the derivative work would have two choices -- either stop distributing the derivative work, or license their own portion of the work CC-BY-SA. That choice can only be made by that author themselves. In no case does that give anybody else the right to suddenly distribute the work on their own -- the additional material is still owned by the second author, and the third party would then be distributing it without a license, and committing an additional infringement. At this point, it is up to the original author to make the complaint against the image being on Getty -- if they don't bother, then the image will stay on Getty with the existing license statement, and third parties are best recommended to follow it. Carl Lindberg (talk) 08:59, 27 January 2012 (UTC)

Madness

This is not Sparta, this is madness. While other admins working hard deleting 100 year old anonymous photos uploaded from family archives (and Dcoetzee himself trying to enact something like Great Purge for tens of thousands of old pictures that are perfectly in public domain in their source country and in the most of the world), other users trying to defend the picture that:

• Certainly _is_ a copyright violation (the bar of originality for photographs is low and it was passed).
• Certainly tagged with random unrelated copyright template -- there is nothing CC-BY-SA 3.0 on this picture (photo copyrighted by AFP, Wikipedia logo -- all rights reserved by Wikimedia Foundations, Vector MediaWiki skin -- GNU GPL, Internet Explorer -- all rights reserved by Microsoft, short simple phrases are not copyrightable).
• Has low resolution and a watermark, is not at all important, useful, or unique, and can be re-created hilariously easy. Worth much less than an ordinary penis shot taken by a mobile phone.
• The only excuse not to delete it is a dubious legal theory ("unlikely that a judge would uphold" and so on) that is not based on the laws or legal scholars whatsoever.
• Presents the _real_ threat to the reusers (as opposing to deletion of old anonymous photos), giving that Getty Images actively defends its copyright and sues the infringers. Just a few examples:

my (very small) company has recieved a settlement demand from Getty Images for using a tiny image on our website. We have since removed the images, but they insist we need to pay them HK$12,000.

— [1]

Several months ago somebody made me a website and used several images he claimed he got from a public domain site. Last month I got a letter from Getty Images demanding $1000 for the use of one of those pictures.

Anyway, a year later my client gets a letter from Getty threatening to sue for breach of copyright for 2 images which they say is theirs. My client phoned me up in panic. // I immediately removed those images, but our client received another letter from Getty demanding £2937.50 for using those 2 small images otherwise they will sue and they say it doesn't matter that we removed them as they have already been used.

— [2]

I received three letters from Getty Images and they are really stressing me out. I designed two web sites for my children and got photos from the web. Now Getty want £15,000 from me.

— [3]

I designed the client's site about 5 years ago. He supplied all of the photos to me and claimed that he had paid Getty for them. A few months ago Getty contacted him and said that he was using their photos illegally. [...] So he had to deal with Getty, and even though we removed the images he still had to pay for their prior use. So it cost him about $5000 in the long run.

— [4]

• and so on. Do you want that some of our re-users would find themselves in such situation after using "free" picture from Commons? Note that many of the re-users will not be able to defend themselves in the court against Getty using shady legal theories. Trycatch (talk) 12:42, 24 January 2012 (UTC)
  • I agree that it's a copyvio, and a very clear one at that (you can use it as fair use, but that's another issue). However, i caution you against using the logic along the lines of "this company sues everybody so we should respect their copyright more than others", if anything i believe such a company should deserve less respect due to their actions. VolodyA! V Anarhist Beta_M (converse) 14:37, 24 January 2012 (UTC)
    • It's not about respect, it's about safety for downstream users. Even if you don't respect a fierce dog, (s)he still can bite you. Trycatch (talk) 16:51, 24 January 2012 (UTC)
  • Honestly I find this argument pretty compelling. Like several other users I'm aware of, I'm opposed to the graffiti policy, and also opposed to a policy that we keep illegal derivatives of CC-BY-SA works, for exactly the same reason: the legal theory supporting their inclusion has absolutely no basis in the law or in case law. We've uploaded other images from Getty before, like PD-Art images of old paintings, and despite Getty's litigiousness these have not been deleted, because there is clear US case law to support them. We must be conservative in the absence of a clear legal precedent. Dcoetzee (talk) 18:17, 24 January 2012 (UTC)

What Trycatch seems to be alleging is that Getty can extort money using the legal system from users of their images without having any believable legal claim backing them up. I doubt that Getty would characterize their actions as such. And I doubt that we could have any images on Commons - zero - if we accept the reasoning that somebody could extort end-users without any believable legal claim, so that we need to delete an image.

The legal claim put forward above is that Getty could use the "Fair Use defense" to sue for copyright infringement. That is just impossible, "Fair use" is a defense against the claim of copyright infringement. It is just not a means of claiming copyright infringement.

The image is a derivative of a CC-BY-SA image, so by the plain reading of the CC-BY-SA license must be (and is) licensed CC-BY-SA.

I've asked User talk:Lmallek to comment (without offering a legal opinion) simply because the WMF is mentioned in the discussion indirectly and he may have some better info on this than we do. Smallbones (talk) 20:17, 24 January 2012 (UTC)

• I disagree with the conclusion that "any derivative of a CC-BY-SA image must be (and is) licensed CC-BY-SA". My conclusion is rather that "any derivative of a CC-BY-SA image either is licensed CC-BY-SA, or is being distributed illegally (in violation of the CC-BY-SA license of the original work)." I believe the latter is the case here. To make an analogy, FSF states with respect to the GPL that "we do not compel you to agree to this license; however, it is the only agreement that grants you the legal right to use the work in any manner." (Note: paraphrasing, having trouble finding the original source for this...) The fact that this work is an illegal derivative does not magically imply that the authors have released it under a free license. Dcoetzee (talk) 21:06, 24 January 2012 (UTC)

• 
  © & ™ All rights reserved, Wikimedia Foundation, Inc.
• 
  © & ™ All rights reserved, Wikimedia Foundation, Inc.

• I have to repeat my statement -- where you see anything CC-BY-SA 3.0 there? And _even if_ the screenshot is indeed CC-BY-SA (it's not) -- Dcoetzee is right, it doesn't magically make any DW CC-BY-SA as well. Basically, what are you proposing is "rob the robbers" principle, and it doesn't look nicely from the legal point of view. BTW I believe that Getty/AFP didn't do anything wrong in this case -- they just report news, it's their primary task, the image was used by newspapers to illustrate current events, this use of the WMF logo and banner don't harm WMF in any way or form. This is fair use. It seems that even "robbed" Wikimedia Foundation thinks that this is fair use, see https://wikimediafoundation.org/wiki/Trademark_Policy :

"In general, trademarks included in screen captures qualify as nominative fair use, provided that the captures are used inside a work rather than on the cover or in other promotional or commercial material."

• Trycatch (talk) 12:30, 25 January 2012 (UTC)

• "The legal claim put forward above is that Getty could use the "Fair Use defense" to sue for copyright infringement. That is just impossible, "Fair use" is a defense against the claim of copyright infringement. It is just not a means of claiming copyright infringement." -- no, they will use their valid copyright on the photo for the attack, and fair use defense to protect against the counter-claim. Trycatch (talk) 12:47, 25 January 2012 (UTC)

I'm sorry I have to keep bringing it up, but having a legal theory on why the image I uploaded is copyright infringement is not enough. It has to be a legal theory that is somehow possibly within the realm of believability. The "Fair Use" defense states that you do NOT have copyright, but that you used another person's copyright in a manner consistent with public purposes. Claiming copyright based on your own "fair use" or using this defense in any way to sue somebody is simply not possible. There is no need to postulate some sort of defense against any mythical countersuit. If they are claiming copyright infringement, the only question that needs to be asked is if they own the copyright, and the answer is no, they don't.

The principle of law that prevents them from copyrighting the work is simple - you can't copyright a work that's already copyrighted by somebody else.

Does rotating a work allow you to copyright an already copyrighted work? No, otherwise you'd see people copyrighting the 180 degree rotation of bestselling novels!

Does adding your watermark to an already copyrighted work somehow give you copyright over the whole thing? I can't imagine a US judge enforcing that one.

Perhaps it is better that Trycatch and I not discuss this anymore. Our understanding of US copyright law is just too far apart and the positions have been stated.

But I think the implications of Trycatch's arguments should be emphasized. It would mean that, for example, the Copyfraud article in Wikipedia could not be illustrated even though examples abound, simply because any example includes something that has been claimed as copyrighted. And I think it would mean that nothing could be included on Commons simply because somebody could theoretically claim a copyright even with no basis in law.

So please comment on whether you consider the following to be copyrighted:

• a copy of the "Getty copyrighted" image without the watermarks
• a copy of the "copyrighted" image with only a plain text watermark
• a copy of an 1850 photo with a plain text claim of copyright in 2002 below it.

Surely some of these could be included on Commons! Smallbones (talk) 13:58, 26 January 2012 (UTC)

• Keep The idea that a CC BY-SA/GPL is nullified if you take 5 steps back and tilt the camera is silly. --Guerillero 18:56, 29 January 2012 (UTC)
  • When you make a derivative work of a GFDL/CC-BY-SA work, you always have four options:
    1. license as GFDL only,
    2. license as CC-BY-SA only,
    3. license as GFDL+CC-BY-SA and
    4. make a copyright violation (in which case the copyright holders of the original work could start a lawsuit).
  • In this case, it is not clear which option AFP chose. --Stefan4 (talk) 19:15, 29 January 2012 (UTC)
    • Actually, there is 5th option -- fair use. And 6th option -- de minimis. (I am slightly tired to endlessly repeat that their _nothing_ CC-licensed on this picture, except few short non-copyrightable phrases.) Trycatch (talk) 20:53, 29 January 2012 (UTC)
      • What people fail to understand is that if we were to keep this one file, we would need to delete every image that is taken in the city. Wallpaper on the walls, design of furniture, design of clothing, design of hair styles, etc would preclude a photographer from "taking a few steps back and tilting a camera" VolodyA! V Anarhist Beta_M (converse) 02:31, 30 January 2012 (UTC)
        • I reiterate that my main problem is with the watermark, which is certainly not below the threshold of originality. And the image is not useful without it, since it's intended to depict copyfraud. Dcoetzee (talk) 04:04, 30 January 2012 (UTC)
          • Now this is a reasonable question, but I think I've answered it above. US courts are not going to enforce a copyright violation claim that essentially states. "I stole the intellectual property (copyright) on somebody else's property, but made it mine just by putting my name (watermark) on it. Now I need the courts to enforce the copyright on MY property." The principle of law is called the "clean hands doctrine." The courts are simply not going to help you to create a "right to steal." And please remember that "fair use" doesn't give you any right to claim a copyright or to sue anybody. I would like you to comment on the 3 cases I outlined above (right above the last "keep"). Smallbones (talk) 01:23, 31 January 2012 (UTC)
            • This isn't a reasonable question, because you didn't read what you were responding to. The answer to your question is there, i'm not going to copy-paste it here again. VolodyA! V Anarhist Beta_M (converse) 02:02, 31 January 2012 (UTC)
              • "And please remember that "fair use" doesn't give you any right to claim a copyright or to sue anybody." You still has right to sue anybody, if you claim fair use on the original work, and copyright on derivative work. For example, Shepard Fairey claimed that AP infringed his copyright on the "Hope" Obama poster, while the poster itself was an unlicensed derivative work from the AP photograph [5]. Trycatch (talk) 09:43, 31 January 2012 (UTC)

Barack Obama "Hope" poster analogy

The analogy of this picture with a "fair use" case regarding the Barack Obama "Hope" poster was suggested immediately above. It's a very interesting case, not all the twists and turns have any equivalent here, but this case strongly suggests keeping this picture on Commons.

The analogous positions are:

• Copyright holder (Associated Press ==> Wikimedia Foundation)
• Possible Fair Use claimant (Shepard Fairey ==> AFP, Getty)

Basic facts

• Shepard Fairey made use of an AP photo to produce his iconic HOPE poster of candidate Obama
• He transformed the AP image from a forgettable news photo into a work of art, now owned by the Smithsonian's National Portrait Gallery
• AP asked for royalties or threatened to sue for breach of copyright
• Fairey sued first asking for a declaratory judgement, forcing AP into court (but not claiming any copyright violation by AP)
• AP countersued claiming a copyright violation
• Fairey argued that AP had also violated HIS copyright by taking pictures of the poster. The new copyright claim arising from his original "fair use" and complete transformation of the photo.
• Settlement out of court and confidential, but basic terms are that Fairey did not win anything. AP's claim to the "new copyright" (the poster) was recognized, but Fairey did get to keep a piece of it and AP owning the rest. AP was liable for nothing.

So by analogy AFP, Getty could sue the original copyright holder Wikipedia, but wouldn't win anything. They don't have a case suing based on "fair use." Fairey's case has to be much stronger than AFP, Getty's would be. He transformed the photo into an internationally recognized piece of art. All AFP,Getty did was plaster 2 small watermarks on the picture of Wikipedia's front page.

Smallbones (talk) 19:42, 1 February 2012 (UTC)

So your argument is that the rotation of the camera and the act of addition of watermark is de minimis. Fair enough. But you cannot claim that the contents of the watermark in this case are de minimis, because they are complex enough even for the USA. Thus you would need to remove this watermark somehow, which would automatically move this image into "not in scope" category. VolodyA! V Anarhist Beta_M (converse) 22:54, 1 February 2012 (UTC)

It may be the case that Getty would try to sue WMF, WMF would countersue for using the logo, and they would settle out of court. But that's a counterattack that content reusers don't have access to (since they do not own the copyright of the original work). Moreover, the costs of negotiating such a settlement are not trivial, nor is such a settlement certain to occur. Dcoetzee (talk) 03:28, 2 February 2012 (UTC)

The court ruled explicitly that Fairey's use was not fair use, at which point Fairey had little defense. It didn't help matters that he had tried to hide evidence (he pled guilty to that aspect). They settled because Fairey was likely going to lose (though the judge, in the ruling, left open that the poster could have been ruled to not be "substantially similar" to the photograph and therefore not derivative, but elsewhere more or less told Fairey he was going to lose). This is an entirely different situation; the Getty image is not using the WIkipedia logo to make a stylized version and use it as a logo; they are depicting the logo just as it exists on Wikipedia pages and familiar to millions. Anyways, even if it was not fair use and Getty is guilty of copyright infringement, that does not give us any right to use the further derivative work of theirs without an explicit license from the author -- licensing that way would be one way to avoid copyright infringement if it were deemed not to be fair use, but that would have to be proved first. The only reasonable argument here is the additional work (the angle chosen) is de minimis, and I'm not sure I buy that -- it's arguable that they did add something creative.  Delete for me. Carl Lindberg (talk) 12:25, 16 April 2012 (UTC)

 Comment. What is the policy on a copvio image that is re-used from commons and then later removed from commons? Does the copyright holder need to notify the magazine, website, etc. to correct the violation? I would say  Keep if that is the case and WMF and Getty can discuss it if they wish. If WMF wants it deleted for their reasons or Getty's reasons then let them decide that between themselves. I also don't think the Getty watermark meets ToR for the source country. WMF may also decide to keep it as an office action for various reasons. We could also add a warning message to the page that it may be deleted in the future so re-users should use caution.--Canoe1967 (talk) 20:27, 15 June 2012 (UTC)

The IP's take

 Keep Watermarking an image is done so commonly that just putting a watermark of your logo doesn't pass the threshold of originality. This is a free image, we should just sue Getty Images for CC infringement and keep this. 68.173.113.106 00:42, 5 August 2012 (UTC)

Screw it, I'll just DMCA them. 68.173.113.106 00:51, 5 August 2012 (UTC)

You're not the copyright owner of the underlying work, so you would have no standing to file a DMCA complaint, and would be committing perjury if you claimed it was if you do file such a complaint. Carl Lindberg (talk) 01:16, 5 August 2012 (UTC)

I asked Jimmy Wales on his talk page to file the complaint. 68.173.113.106 15:16, 5 August 2012 (UTC)

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Deleted: A CC-BY-SA license for an original work is no guarantee that all derivations of it can likewise be distributed under the terms of CC-BY-SA. This is unfortunate but it happens. If a derivation has a sufficient amount of originality (watermark, composition), then we cannot presume that it is CC-BY-SA as well. It is possibly a copyright infringement. But this does not gives us the freedom to distribute that derived work. And even if a DMCA is successful by the copyright holders, it is probably just taken down but not necessarily made available under a CC-BY-SA license. --AFBorchert (talk) 06:23, 6 August 2012 (UTC)