Neither am I your lawyer, but your points are very interesting and potentially encouraging. Once the Wikimedia Foundation is able to accept your points, recent pictures of very old coins may also become acceptable on Commons, similar to mere copies of very old 2-dimensional works.
Jusjih
Message: 4 Date: Thu, 20 Nov 2008 19:11:39 -0800 (PST) From: Geoffrey Plourde geo.plrd@yahoo.com Subject: Re: [Commons-l] Photos of statues not considered derivatives in the US? To: Wikimedia Commons Discussion List commons-l@lists.wikimedia.org Message-ID: 131842.94385.qm@web37405.mail.mud.yahoo.com Content-Type: text/plain; charset="us-ascii"
IANAL, but I would say it's solid as it has been cited in Latimer v. Roaring Toyz, Inc., 2008 WL 697346 (M.D. Fl.)
From: Howard Cheng howard@howcheng.com To: Wikimedia Commons Discussion List commons-l@lists.wikimedia.org Sent: Thursday, November 20, 2008 4:42:29 PM Subject: [Commons-l] Photos of statues not considered derivatives in the US?
According to http://williampatry.blogspot.com/2008/02/photographs-and-derivative-works.ht..., Judge William H. Pauley III of the Southern District of New York ruled in SHL Imaging, Inc. v. Artisan House, Inc., 117 F. Supp. 2d 301 (S.D. N.Y. 2000) that photographs of statues/sculptures are not considered derivative works, noting: "A photograph of Jeff Koons's 'Puppy' sculpture in Manhattan's Rockefeller Center merely depicts that sculpture; it does not recast, transform, or adapt Koons's sculptural authorship. In short, the authorship of the photographic work is entirely different and separate from the authorship of the sculpture."
Note that this is the same court that issued the Bridgeman v. Corel ruling. If this hasn't been overturned at any point, and the blog post linked above doesn't indicate that it has, then we should start allowing photos of statues in the US, and perhaps anywhere even where there is no FOP for statues (similar to what we did for PD-Art).
Thoughts?
-h
-----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1
I would like to point out that it's not up to the Wikimedia Foundation to determine what is free and not free on Commons; this is entirely governed by the Commons community, which has a mix of experts and non-experts of its own. However, I will be copying Mike Godwin on this email to find out what his educated opinion is on the matter (I have a feeling he'll say something like a photograph of a statue taken in the United States is in fact not a derivative work of the statue in the United States)
Cary Bass
J JIH wrote:
Neither am I your lawyer, but your points are very interesting and potentially encouraging. Once the Wikimedia Foundation is able to accept your points, recent pictures of very old coins may also become acceptable on Commons, similar to mere copies of very old 2-dimensional works.
Jusjih
Message: 4 Date: Thu, 20 Nov 2008 19:11:39 -0800 (PST) From: Geoffrey Plourde geo.plrd@yahoo.com Subject: Re: [Commons-l] Photos of statues not considered derivatives in the US? To: Wikimedia Commons Discussion List commons-l@lists.wikimedia.org Message-ID: 131842.94385.qm@web37405.mail.mud.yahoo.com Content-Type: text/plain; charset="us-ascii"
IANAL, but I would say it's solid as it has been cited in Latimer v. Roaring Toyz, Inc., 2008 WL 697346 (M.D. Fl.)
________________________________ From: Howard Cheng howard@howcheng.com To: Wikimedia Commons Discussion List commons-l@lists.wikimedia.org Sent: Thursday, November 20, 2008 4:42:29 PM Subject: [Commons-l] Photos of statues not considered derivatives in the US?
According to
http://williampatry.blogspot.com/2008/02/photographs-and-derivative-works.ht...,
Judge William H. Pauley III of the Southern District of New York ruled in SHL Imaging, Inc. v. Artisan House, Inc., 117 F. Supp. 2d 301 (S.D. N.Y. 2000) that photographs of statues/sculptures are not considered derivative works, noting: "A photograph of Jeff Koons's 'Puppy' sculpture in Manhattan's Rockefeller Center merely depicts that sculpture; it does not recast, transform, or adapt Koons's sculptural authorship. In short, the authorship of the photographic work is entirely different and separate from the authorship of the sculpture."
Note that this is the same court that issued the Bridgeman v. Corel ruling. If this hasn't been overturned at any point, and the blog post linked above doesn't indicate that it has, then we should start allowing photos of statues in the US, and perhaps anywhere even where there is no FOP for statues (similar to what we did for PD-Art).
Thoughts?
-h
On Fri, Nov 21, 2008 at 6:29 AM, J JIH jus168jih@gmail.com wrote:
Neither am I your lawyer, but your points are very interesting and potentially encouraging. Once the Wikimedia Foundation is able to accept your points, recent pictures of very old coins may also become acceptable on Commons, similar to mere copies of very old 2-dimensional works.
Jusjih
Lupo points out a flaw in the argument on my talk page: http://commons.wikimedia.org/w/index.php?title=User_talk:Howcheng&diff=1...
"Patry argues a fine point whether photos of 3D objects are derivative works. However, please note that even if such photos are not derivatives, they are still *copies* of the 3D object. 17 USC 101http://en.wikisource.org/wiki/United_States_Code/Title_17/Chapter_1/Section_101defines copies as "material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." 17 USC 106(1)http://en.wikisource.org/wiki/United_States_Code/Title_17/Chapter_1/Sections_105_and_106gives the copyright owner of the 3D object the exclusive right to "to reproduce the copyrighted work in copies or phonorecords". Hence the photographer would still need to get the consent of the copyright owner of the 3D object to even make a photo. Patry acknowledges this himself, read the comments on the blog article you linked, in particular this commenthttp://williampatry.blogspot.com/2008/02/photographs-and-derivative-works.html?showComment=1202223060000#c8671324199605658790 < http://williampatry.blogspot.com/2008/02/photographs-and-derivative-works.ht...: "yes I think a picture of a copyrighted object is a reproduction of that object". Also this commenthttp://williampatry.blogspot.com/2008/03/photographs-are-not-derivative-works.html?showComment=1206038640000#c6248389526681202947 < http://williampatry.blogspot.com/2008/03/photographs-are-not-derivative-work... from a follow-up blog post on this issue: "even though a photograph isn't a derivative work of the object photographed doesn't mean there might not be violation of the reproduction right. If I take a photo of a copyrighted work of art and sell copies, I am violating the reproduction art even though my photo is not a derivative work of the art work." So, it doesn't matter for us: for photos of copyrighted artwork, we need the consent of the rights holder of the artwork shown in the photo (plus that of the photographer, if he isn't identical to the uploader)"
But hopefully Mike can weigh in on this too.
-h