This image is a clear violation of the copyright in the image shown on the hoardings. The photo was taken in the US, which has no Freedom of panorama exception that would allow this image to remain here. As the FOP page says, "For artworks, even if permanently installed in public places, the U.S. copyright law has no similar exception, and any publication of an image of a copyrighted artwork thus is subject to the approval of the copyright holder of the artwork". Although this is speedily deletable as an obvious copyvio, I am posting here to give some advance warning of deletion. MichaelMaggs20:21, 30 November 2007 (UTC)[reply]
Delete I think even in the US an artwork can be photographed if its presence is only incidental. This is just a derivative work. --Simonxag23:20, 30 November 2007 (UTC)[reply]
Delete The image would likely not have been taken if it were not for the presence of the poster, it's a clear case of deliberate inclusion which would make the image a derivative work of the original poster. Deletion is the only option I'm afraid. Nick03:00, 1 December 2007 (UTC)[reply]
KeepThe depicted subject is no artwork, even though it may be of high artistic quality. It is a promotional piece intended for great publicity posted at a place that is famous for the high concentration of this kind of publicity. But go ahead: Delete all pictures of Times Square; New York City. --Wuselig09:27, 1 December 2007 (UTC)[reply]
Comment The depicted subject is an artwork and we must respect the Freedom of Panorama law. Whether or not the artwork is a promotional piece intended for publicity, we don't permit posters and other promotional artwork here, and this image is no different thanks to US copyright law (as absurd as it is). Nick14:30, 2 December 2007 (UTC)[reply]
Can you explain the following:
A “work of visual art” is —
(1) a painting, drawing, print or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author; or
(2) a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.
And especially this:
A work of visual art does not include —
(A)(i) any poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture or other audiovisual work, book, magazine, newspaper, periodical, data base, electronic information service, electronic publication, or similar publication;
(ii) any merchandising item or advertising, promotional, descriptive, covering, or packaging material or container;
(iii) any portion or part of any item described in clause (i) or (ii);
(B) any work made for hire; or
(C) any work not subject to copyright protection under this title.25
Comment No I can't explain that, I'm not a lawyer and I don't even know where that text comes from. Maybe "work of art" is not the right term. But take a look at the list of things your definition excludes. Do you really think copyright does not cover a "motion picture or other audiovisual work"? Posters, statues, even action toys are copyrighted and people who try to make artworks derived from them without permission do lose big bucks in US courts. --Simonxag22:23, 2 December 2007 (UTC)[reply]
I am also not a lawyer. But I sometimes have the feeling discussions here are somewhat of "The blind leading the dumb", or vice versa, so nobody can take offence.
If "work of art" is not the right term, would you, or the initiator of this discussion, restart it with the right arguments. What you or I think is not relevant in any way. Perhaps somebody should come into this discussion who knows.--Wuselig00:35, 3 December 2007 (UTC)[reply]
<--Under "(C) any work not subject to copyright protection under this title" if we refer to what is covered under copyright protection in the following section"
§ 102. Subject matter of copyright: In general28
(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.
That would therefore include the poster under section 5. I'd prefer clarification, because if I and others are being too strict in our interpretation, we would lose some good images, so it's worthwhile consulting with Mike Godwin, I think. Nick01:23, 3 December 2007 (UTC)[reply]
Allegory of discussions about legal matters by Wikipedia usersWhat about § 107 fair use and § 108 library and archives. What we do here is non comercial. The only thing we would have to do, is add a warning that commercial use may violate other rights. But that is a fact with many other images here on Commons, for example pictures of celebrities. I can publish a picture of Paris Hilton taken by myself in a public surounding, but I cannot use it in an advertising flyer.--Wuselig08:46, 3 December 2007 (UTC)[reply]
Comment What we do here is very commercial, we provide images for all of our sister Wikimedia Projects, so by providing them with Non Commercial / No Derivative artwork, they present legal difficulties down stream for our content re-users. It's for this reason CC-BY-NC-ND are related licenses aren't permitted. The reason you can't use Paris Hilton on a advertising flyer is she'll most likely sue you for using her image to promote your product. There's no true copyright reason that prevents you using her image, but there's Personality Rights issues. They exist to prevent people from going around using photos of celebrities for dubious money making schemes and any other uses which would harm the reputation of the person involved. Nick12:29, 3 December 2007 (UTC)[reply]
Delete "Fair use" is not allowed on commons, and the 17 USC 108(h) exceptions do not apply to us. Do not muddy the waters unnecessarily. Personality rights are a different beast, and Paris Hilton is not a copyrighted work. Advertisement posters are, though. And an advertisement poster showing P.H. would be, too. Lupo11:54, 3 December 2007 (UTC)[reply]
Comment Oh dear. This discussion has gone off on a number of irrelevant tangents, but the legal situation is actually quite clear.
Does Freedom of Panorama apply? No. The US has no freedom of parorama for posters or any similar 2D works.
Could it be Fair use? No. Fair Use claims are not allowed here, as Lupo has pointed out.
Is it a "Work of visual art"? No. That is a special type of work recognised under US law for single copies or limited editions of less than 200, providing additional protection for the author - rights of attribution etc. Not relevant here, as posters can never be a work of this type (US code § 101).
What we have here is a poster, which is a work protected under US law in the category "“Pictorial, graphic, and sculptural work”. § 101 states that “Pictorial, graphic, and sculptural works” include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans...", which certainly covers posters.
The act of infringement arises because under §106(2) the copyright owner has the exclusive right to prepare derivative works based upon the copyrighted work. This photograph is a derivative work based on the original image in the poster, the poster being an important part of this photograph. --MichaelMaggs17:41, 31 December 2007 (UTC)[reply]
Do you have any idea, if the artist is still alive? After all the picture was taken over 28 years ago and the rights according to 106 (A)(d) "shall endure for a term consisting of the life of the author" only.--Wuselig02:35, 1 January 2008 (UTC)[reply]
It doesn't matter. The section you mention has nothing to do with the the copyright term; it simply governs the right of attribution to works that qualify as "works of visual art", which this does not (see above). --MichaelMaggs09:52, 1 January 2008 (UTC)[reply]
Why don't we just delete the picture if that is your general policy. US-law, by adding a definition of each word after every paragraph, and than defining each new word in these added paragraphs is just a job-creation project for lawyers. Common Sense would have said, the intention of putting up such a poster at Times Square was to make it visible to a lot of people. The presentation of the unaltered image in Commons makes it visible to a lot more people, so thank you very much for spreading the message. Now if somebody should get the idea of altering this picture in a way that is opposed to the original message than that is a matter that needs to be prosecuted, but that shouldn't be our business at Commons. --Wuselig13:39, 1 January 2008 (UTC)[reply]
Sorry, but we do have to respect copyright. It's worth remembering that all images on Commons have to be released under a licence that allows commercial re-use. What do you think would be the stance of the copyright owner if we purport to release the image for commercial re-use to all and sundry, as we have to, including the copyright owner's competitors? The copyright owner could sue the competitor for the re-use, of course, but could also in principle have a cause of action against the Wikimedia Foundation. It doesn't serve our purpose best if we ignore copyright and hope the Foundation never gets sued. --MichaelMaggs21:13, 1 January 2008 (UTC)[reply]
Delete I think even in the US an artwork can be photographed if its presence is only incidental. This is just a derivative work. --Simonxag 23:20, 30 November 2007 (UTC)
Delete The image would likely not have been taken if it were not for the presence of the poster, it's a clear case of deliberate inclusion which would make the image a derivative work of the original poster. Deletion is the only option I'm afraid. Nick 03:00, 1 December 2007 (UTC)
KeepThe depicted subject is no artwork, even though it may be of high artistic quality. It is a promotional piece intended for great publicity posted at a place that is famous for the high concentration of this kind of publicity. But go ahead: Delete all pictures of Times Square; New York City. --Wuselig 09:27, 1 December 2007 (UTC)
Comment The depicted subject is an artwork and we must respect the Freedom of Panorama law. Whether or not the artwork is a promotional piece intended for publicity, we don't permit posters and other promotional artwork here, and this image is no different thanks to US copyright law (as absurd as it is). Nick 14:30, 2 December 2007 (UTC)
Comment No I can't explain that, I'm not a lawyer and I don't even know where that text comes from. Maybe "work of art" is not the right term. But take a look at the list of things your definition excludes. Do you really think copyright does not cover a "motion picture or other audiovisual work"? Posters, statues, even action toys are copyrighted and people who try to make artworks derived from them without permission do lose big bucks in US courts. --Simonxag 22:23, 2 December 2007 (UTC)
