Hello all,
I recently sent an e-mail to the Livingston County (New York) government, inquiring about the possible misuse of one of my Commons images, a picture of the Livingston County seal [1]. They use a very similar image on their website, but it was scaled down too small for me to tell whether or not it was my image. If it was my image they were using, then they would be in violation of the cc-by-sa license on the image.
I received this reply:
| Dear Mr. Esham: | | Your email to Livingston County has been referred to me for response. I | would refer you to section 30-e of the Judiciary Law of the State of New | York. The use of Livingston County's seal or any replica or simulation | thereof, in form or substance, by any unauthorized person, is prohibited. | A violation of this prohibition constitutes a misdemeanor and is | punishable as such. Since you are not authorized to use our seal, I would | suggest you remove it at once. | | David J. Morris | Livingston County Attorney
I managed to track down the relevant law [2], and it states, in part,
| 3. Such seal shall be used and affixed only: (a) by the county clerk of | Livingston county or by any deputy or clerk duly authorized by him; and | (b) by any justice of the supreme court resident in Livingston county, | or by any clerk or officer duly authorized by said justice. | | 4. The use of said seal or of any replica or simulation thereof, in | form or substance, by any unauthorized person or for any wrongful | purpose, is prohibited. Any violation of this prohibition shall | be deemed to be a misdemeanor and punishable as such.
I know that U.S. seals are considered to be covered by some sort of fair use for our purposes, but can I get a quasi-professional opinion on this? I live in Livingston County, so this isn't necessarily an empty threat to me.
[1] http://commons.wikimedia.org/wiki/Image:Seal_of_Livingston_County%2C_New_Yor... [2] http://preview.tinyurl.com/2hja24
Thanks,
[[User:Bdesham]]
On 8/22/07, Benjamin Esham bdesham@gmail.com wrote:
Hello all,
I recently sent an e-mail to the Livingston County (New York) government, inquiring about the possible misuse of one of my Commons images, a picture of the Livingston County seal [1]. They use a very similar image on their website, but it was scaled down too small for me to tell whether or not it was my image. If it was my image they were using, then they would be in violation of the cc-by-sa license on the image.
I received this reply:
| Dear Mr. Esham: | | Your email to Livingston County has been referred to me for response. I | would refer you to section 30-e of the Judiciary Law of the State of New | York. The use of Livingston County's seal or any replica or simulation | thereof, in form or substance, by any unauthorized person, is prohibited. | A violation of this prohibition constitutes a misdemeanor and is | punishable as such. Since you are not authorized to use our seal, I would | suggest you remove it at once. | | David J. Morris | Livingston County Attorney
I managed to track down the relevant law [2], and it states, in part,
| 3. Such seal shall be used and affixed only: (a) by the county clerk of | Livingston county or by any deputy or clerk duly authorized by him; and | (b) by any justice of the supreme court resident in Livingston county, | or by any clerk or officer duly authorized by said justice. | | 4. The use of said seal or of any replica or simulation thereof, in | form or substance, by any unauthorized person or for any wrongful | purpose, is prohibited. Any violation of this prohibition shall | be deemed to be a misdemeanor and punishable as such.
I know that U.S. seals are considered to be covered by some sort of fair use for our purposes, but can I get a quasi-professional opinion on this? I live in Livingston County, so this isn't necessarily an empty threat to me.
[1] http://commons.wikimedia.org/wiki/Image:Seal_of_Livingston_County%2C_New_Yor... [2] http://preview.tinyurl.com/2hja24
Is this particular image even eligible to be copyrighted, since it is just a photo of another work? Unless the seal was created prior to the advent of copyright, if I'm not mistaken, it would be covered by copyright laws and thus the county would have a valid claim - we would only be allowed to use images of the seal under a claim of fair use.
If the seal is in the public domain, then this is of course a moot question, since the county cannot copyright the seal.
But having said all that, you seem to have been referred to a law that has nothing to do with copyright - I'm not sure whether it applies to the Wikimedia Foundation or to other editors, since the servers and the legal entity are in Florida. Maybe we could circumvent this whole problem by deleting the image and having some editor who does not live in Livingston reupload it. :p (Assuming, of course, there are no copyright issues.)
Johnleemk
John Lee wrote:
Is this particular image even eligible to be copyrighted, since it is just a photo of another work?
Hmm, perhaps not. Even so, I think a {{PD-ineligible}} on the image page wouldn't make a difference to the county government. They don't seem to be particularly familiar with Wikipedia, and the copyright status of the image doesn't seem to be the issue at question.
Unless the seal was created prior to the advent of copyright, if I'm not mistaken, it would be covered by copyright laws and thus the county would have a valid claim - we would only be allowed to use images of the seal under a claim of fair use.
I guess there are three issues here: the copyright on the photograph I took, the copyright on the actual wood rendering I took a picture of, and the ability to use the seal in any given situation. My original inquiry to the county regarded the first item, which they completely ignored, changing the topic to the third item.
The seal is codified in law, which is necessarily public domain. Suppose I were to work from the law's definition of the seal and create an SVG file; would that be considered public domain, since I only created a graphic from a PD textual description? Even then, the question remains of what I am allowed to do with the image I created.
Does Wikipedia have any established guidelines on the legality of the use of coats of arms and seals?
But having said all that, you seem to have been referred to a law that has nothing to do with copyright - I'm not sure whether it applies to the Wikimedia Foundation or to other editors, since the servers and the legal entity are in Florida.
Indeed... ISTM that it wouldn't even be worth it for the county to attempt to press charges against someone outside of New York. I have only a vague idea of how the Wikimedia servers' location factors in to such legal matters.
Maybe we could circumvent this whole problem by deleting the image and having some editor who does not live in Livingston reupload it. :p (Assuming, of course, there are no copyright issues.)
Honestly, it would be fine with me if someone deleted the image from Commons, pending some sort of resolution to this matter. (FWIW I believe that the seal is acceptably used within fair use everywhere it is currently used [1].)
[1] http://tools.wikimedia.de/~daniel/WikiSense/CheckUsage.php?i=Seal_of_Livings...
Thanks for the reply,
[[User:Bdesham]]
Benjamin Esham wrote:
John Lee wrote:
Is this particular image even eligible to be copyrighted, since it is just a photo of another work?
Hmm, perhaps not. Even so, I think a {{PD-ineligible}} on the image page wouldn't make a difference to the county government. They don't seem to be particularly familiar with Wikipedia, and the copyright status of the image doesn't seem to be the issue at question.
Agreed, it looks more like a trademark issue.
Unless the seal was created prior to the advent of copyright, if I'm not mistaken, it would be covered by copyright laws and thus the county would have a valid claim - we would only be allowed to use images of the seal under a claim of fair use.
I guess there are three issues here: the copyright on the photograph I took, the copyright on the actual wood rendering I took a picture of, and the ability to use the seal in any given situation. My original inquiry to the county regarded the first item, which they completely ignored, changing the topic to the third item.
The problem seems to be that when you ask the wrong questions you get the wrong answers. Asking the question is what started the problem. My first puzzled reaction was why would you be complaining to them about their use of their own seal.
The seal is codified in law, which is necessarily public domain. Suppose I were to work from the law's definition of the seal and create an SVG file; would that be considered public domain, since I only created a graphic from a PD textual description? Even then, the question remains of what I am allowed to do with the image I created.
I can't see what you are trying to accomplish with this game. If it's your original photograph you can do what you want with it.
Does Wikipedia have any established guidelines on the legality of the use of coats of arms and seals?
Including a picture of a seal is not a use for trademark purposes.
But having said all that, you seem to have been referred to a law that has nothing to do with copyright - I'm not sure whether it applies to the Wikimedia Foundation or to other editors, since the servers and the legal entity are in Florida.
Indeed... ISTM that it wouldn't even be worth it for the county to attempt to press charges against someone outside of New York. I have only a vague idea of how the Wikimedia servers' location factors in to such legal matters.
I think this is a non-issue. Assuming that there were a legal case here in the first place, I suspect strongly that the New York courts would have jurisdictions. The trick of having someone else do the uploading only plays games with the idea of jurisdiction, and has no relevance to the main issue.
I tried the link that you gave to your picture, but it does not give me the picture. This leaves me the impression that the complaint is much ado about nothing. If you want to allege that they are using your image of a sign that any passerby can photograph it is up to you to prove that it is your photograph. Having your girl-friend stand beside the sign when you took the picture would be such a feature that would make your photograph distinctive. Ec
Ray Saintonge wrote:
Benjamin Esham wrote:
I guess there are three issues here: the copyright on the photograph I took, the copyright on the actual wood rendering I took a picture of, and the ability to use the seal in any given situation. My original inquiry to the county regarded the first item, which they completely ignored, changing the topic to the third item.
The problem seems to be that when you ask the wrong questions you get the wrong answers. Asking the question is what started the problem. My first puzzled reaction was why would you be complaining to them about their use of their own seal.
I had a hunch that they may have been using my picture of their seal. In retrospect, yes, it was pretty stupid to ask about this, and I regret having opened a can of legal worms.
The seal is codified in law, which is necessarily public domain. Suppose I were to work from the law's definition of the seal and create an SVG file; would that be considered public domain, since I only created a graphic from a PD textual description? Even then, the question remains of what I am allowed to do with the image I created.
I can't see what you are trying to accomplish with this game. If it's your original photograph you can do what you want with it.
I was just wondering about the copyright of that particular rendering of the seal—it's a carved wooden disk—versus the copyright of J. Random User's rendering of the seal. ISTM that the latter use would not be in violation of any copyrights, but might still be caught by the clause disallowing use of the seal by unauthorized persons.
Does Wikipedia have any established guidelines on the legality of the use of coats of arms and seals?
Including a picture of a seal is not a use for trademark purposes.
I'm afraid I don't know what you're saying here. Are you just being pedantic about my choice of the word "use"? The County government certainly seemed to think that we were "using" their seal to some extent that is in violation of the relevant law. It's not like we're trying to pose as a county website; we're just including the image for illustrative purposes.
But having said all that, you seem to have been referred to a law that has nothing to do with copyright - I'm not sure whether it applies to the Wikimedia Foundation or to other editors, since the servers and the legal entity are in Florida.
Indeed... ISTM that it wouldn't even be worth it for the county to attempt to press charges against someone outside of New York. I have only a vague idea of how the Wikimedia servers' location factors in to such legal matters.
I think this is a non-issue. Assuming that there were a legal case here in the first place, I suspect strongly that the New York courts would have jurisdictions. The trick of having someone else do the uploading only plays games with the idea of jurisdiction, and has no relevance to the main issue.
I agree. Even if someone else re-uploaded the image, the person (me) who took the image and who owns the copyright still lives in Livingston County. It would be best not to try to play games with jurisdiction... if we have a legal right to use the image, then we should use it; if not, we shouldn't use it.
I tried the link that you gave to your picture, but it does not give me the picture.
Hmm... try http://tinyurl.com/252t2e. The link was probably broken due to line wrapping somewhere.
This leaves me the impression that the complaint is much ado about nothing.
Which complaint are you referring to, their complaint about our inclusion of the image? I hope it is nothing, but I'm not looking forward to trying to explain to them that our fair use rights trump their law ;-)
I have forwarded the attorney's letter to the Commons OTRS people; they will be able to remove the image from Commons while we try to determine our legal rights and abilities in this matter.
Thanks for the reply,
What does ISTM stand for?
Vee wrote:
What does ISTM stand for?
"It seems to me." http://www.acronymfinder.com
Benjamin Esham wrote:
Ray Saintonge wrote:
Benjamin Esham wrote:
The seal is codified in law, which is necessarily public domain. Suppose I were to work from the law's definition of the seal and create an SVG file; would that be considered public domain, since I only created a graphic from a PD textual description? Even then, the question remains of what I am allowed to do with the image I created.
I can't see what you are trying to accomplish with this game. If it's your original photograph you can do what you want with it.
I was just wondering about the copyright of that particular rendering of the seal—it's a carved wooden disk—versus the copyright of J. Random User's rendering of the seal. ISTM that the latter use would not be in violation of any copyrights, but might still be caught by the clause disallowing use of the seal by unauthorized persons.
Now that I've actually seen your picture I wonder whether it is copyrightable. It is essentially a predictable straight-on two dimensional representation of another two dimensional object. It may lack the creative element needed for a copyright picture. Some might still try to argue that because the original is carved into the wood it is not two-dimensional.
Does Wikipedia have any established guidelines on the legality of the use of coats of arms and seals?
Including a picture of a seal is not a use for trademark purposes.
I'm afraid I don't know what you're saying here. Are you just being pedantic about my choice of the word "use"? The County government certainly seemed to think that we were "using" their seal to some extent that is in violation of the relevant law. It's not like we're trying to pose as a county website; we're just including the image for illustrative purposes.
If it ever came to a court argument over this the meaning of "use" would probably be a key issue. Given the nature of Wikipedia work it is perfectly understandable that we would view "use" in terms of copyright law. The terms "free use" and "fair use" are so commonplace for us. Even if we misunderstand those terms it is still from the perspective of copyright law.
The distinction may seem pedantic, but I would be inclined to look further into the law that you quoted to see if there is another section defining the term "use". We do not normally use something by merely showing what it looks like. Using a seal would most likely arise when it suggests some kind of authority to represent the County.
I tried the link that you gave to your picture, but it does not give me the picture.
Hmm... try http://tinyurl.com/252t2e. The link was probably broken due to line wrapping somewhere.
This leaves me the impression that the complaint is much ado about nothing.
My fault on this. There had been talk of taking down the image, and I too quickly jumped to the conclusion that that happened. It turned out that it had more to do with my own browser settings.
Which complaint are you referring to, their complaint about our inclusion of the image? I hope it is nothing, but I'm not looking forward to trying to explain to them that our fair use rights trump their law ;-)
That facetious comment on my part was somewhat based on my erroneous belief that the image was no longer available. In this case I think that our proper fair use WOULD trump their law, but it's always easier to avoid having to make that defence. This is why in legal circumstances it can be better to know the answer before you ask the question. What you are really trying to do when you ask the question is to get them to confirm what you already know.
I have forwarded the attorney's letter to the Commons OTRS people; they will be able to remove the image from Commons while we try to determine our legal rights and abilities in this matter.
I really don't see any need to take it down.
Ray Saintonge wrote:
Now that I've actually seen your picture I wonder whether it is copyrightable. It is essentially a predictable straight-on two dimensional representation of another two dimensional object. It may lack the creative element needed for a copyright picture. Some might still try to argue that because the original is carved into the wood it is not two-dimensional.
This is a good point. Perhaps I'll change the licensing to {{PD-self}} to avoid a debate about it.
Including a picture of a seal is not a use for trademark purposes.
I'm afraid I don't know what you're saying here. Are you just being pedantic about my choice of the word "use"? The County government certainly seemed to think that we were "using" their seal to some extent that is in violation of the relevant law. It's not like we're trying to pose as a county website; we're just including the image for illustrative purposes.
If it ever came to a court argument over this the meaning of "use" would probably be a key issue. Given the nature of Wikipedia work it is perfectly understandable that we would view "use" in terms of copyright law. The terms "free use" and "fair use" are so commonplace for us. Even if we misunderstand those terms it is still from the perspective of copyright law.
The distinction may seem pedantic, but I would be inclined to look further into the law that you quoted to see if there is another section defining the term "use". We do not normally use something by merely showing what it looks like. Using a seal would most likely arise when it suggests some kind of authority to represent the County.
The law states, in part, "such seal shall be used and affixed only [under certain conditions]," and "the use of said seal or of any replica or simulation thereof [...] by any unauthorized person or for any wrongful purpose, is prohibited."
Maybe I'll ask the attorney if he can give an opinion on the definition of "use". I don't think that Wikipedia's use of the image qualifies as "using" it, but then again IANAL.
My fault on this. There had been talk of taking down the image, and I too quickly jumped to the conclusion that that happened. It turned out that it had more to do with my own browser settings.
No worries.
I have forwarded the attorney's letter to the Commons OTRS people; they will be able to remove the image from Commons while we try to determine our legal rights and abilities in this matter.
I really don't see any need to take it down.
Perhaps not, but the gentleman implied that I could be brought up on charges. I'm sure you can understand that I'd like to avoid that if at all possible ;-) That action was just me covering my arse. (Although nothing has been done yet... I just used the general "Commons permission" OTRS e-mail address. Is there a separate one I should have used for legal issues?)
Cheers,
This is a good point. Perhaps I'll change the licensing to {{PD-self}} to avoid a debate about it.
If you don't own the copyright, you can't release it into the public domain. PD is no different from GFDL in that respect.
Thomas Dalton wrote:
This is a good point. Perhaps I'll change the licensing to {{PD-self}} to avoid a debate about it.
If you don't own the copyright, you can't release it into the public domain. PD is no different from GFDL in that respect.
The image is my photograph of a wood rendering of the legally-defined seal. The law itself is in the public domain, so unless the wood rendering can be considered to be some kind of derivative work, the rendering and thus the photograph are in the public domain.
Thomas Dalton wrote:
This is a good point. Perhaps I'll change the licensing to {{PD-self}} to avoid a debate about it.
If you don't own the copyright, you can't release it into the public domain. PD is no different from GFDL in that respect.
Here the ownership of the copyright depends on whether the item is copyrightable at all. An argument can be made that if a copyright could exist on the photograph, it would be his. To be sure, one cannot put something in the public domain when it is already there. We are looking for a workable solution, not a complex and meaningless exercise in documentary correctness.
His suggestion is a good one.
Ec
Benjamin Esham wrote:
Ray Saintonge wrote
Including a picture of a seal is not a use for trademark purposes.
I'm afraid I don't know what you're saying here. Are you just being pedantic about my choice of the word "use"? The County government certainly seemed to think that we were "using" their seal to some extent that is in violation of the relevant law. It's not like we're trying to pose as a county website; we're just including the image for illustrative purposes.
If it ever came to a court argument over this the meaning of "use" would probably be a key issue. Given the nature of Wikipedia work it is perfectly understandable that we would view "use" in terms of copyright law. The terms "free use" and "fair use" are so commonplace for us. Even if we misunderstand those terms it is still from the perspective of copyright law.
The distinction may seem pedantic, but I would be inclined to look further into the law that you quoted to see if there is another section defining the term "use". We do not normally use something by merely showing what it looks like. Using a seal would most likely arise when it suggests some kind of authority to represent the County.
The law states, in part, "such seal shall be used and affixed only [under certain conditions]," and "the use of said seal or of any replica or simulation thereof [...] by any unauthorized person or for any wrongful purpose, is prohibited."
Maybe I'll ask the attorney if he can give an opinion on the definition of "use". I don't think that Wikipedia's use of the image qualifies as "using" it, but then again IANAL.
As I said before you need to know the answer before you ask the attorney. Attorneys for putative opponents can give amazingly biased opinions. There should be more to the law than the two paragraphs that you cited.
I note too that you actually live in Livingston County. With a population of only 65,000 it should be easy to get to know who the influential people are in the county. Maintaining contact with a local historical society can also be helpful. See what they think about putting the picture in Wikipedia; ask them what kind of information they believe should appear in Wikipedia on the county and its communities. Consider their advice before adding some of their information. If the legal people want to take a stupid stand on this, these could be useful allies.
I have forwarded the attorney's letter to the Commons OTRS people; they will be able to remove the image from Commons while we try to determine our legal rights and abilities in this matter.
I really don't see any need to take it down.
Perhaps not, but the gentleman implied that I could be brought up on charges. I'm sure you can understand that I'd like to avoid that if at all possible ;-) That action was just me covering my arse.
CYOA can too easily be used as an excuse for self-suppressing your own rights. A general observation about lawsuits is that 50% of the lawyers are wrong. Simply "suggesting" that you remove it, and making allusion to possible penalties isn't saying very much. Once you determine in your own mind that what you do with the picture is within the law as you understand it what follows becomes a risk management questions. It is impossible protect yourself against all possible outcomes. One can only estimate the probabilities for each step along the way, and multiply them. If they are really intent on pursuing this there should be other opportunities to withdraw before things get out of hand.
(Although nothing has been done yet... I just used the general "Commons permission" OTRS e-mail address. Is there a separate one I should have used for legal issues?)
AFAIK, The permissions queue is only one general one.with subsections for different areas. I don't know that there is a completely separate one for Commons.
Ec
Ray Saintonge wrote:
Benjamin Esham wrote:
Maybe I'll ask the attorney if he can give an opinion on the definition of "use". I don't think that Wikipedia's use of the image qualifies as "using" it, but then again IANAL.
As I said before you need to know the answer before you ask the attorney. Attorneys for putative opponents can give amazingly biased opinions. There should be more to the law than the two paragraphs that you cited.
I've sent an e-mail to Mike Godwin asking him to weigh in on this.
I note too that you actually live in Livingston County. With a population of only 65,000 it should be easy to get to know who the influential people are in the county. Maintaining contact with a local historical society can also be helpful. See what they think about putting the picture in Wikipedia; ask them what kind of information they believe should appear in Wikipedia on the county and its communities. Consider their advice before adding some of their information. If the legal people want to take a stupid stand on this, these could be useful allies.
As it happens, I had lunch with just such a person on Monday. I highly doubt that I'll need such connections, however.
I have forwarded the attorney's letter to the Commons OTRS people; they will be able to remove the image from Commons while we try to determine our legal rights and abilities in this matter.
I really don't see any need to take it down.
In any case, an OTRS user has deferred the decision to [[Commons talk:Licensing]] on Commons.
Perhaps not, but the gentleman implied that I could be brought up on charges. I'm sure you can understand that I'd like to avoid that if at all possible ;-) That action was just me covering my arse.
Simply "suggesting" that you remove it, and making allusion to possible penalties isn't saying very much. Once you determine in your own mind that what you do with the picture is within the law as you understand it what follows becomes a risk management questions. It is impossible protect yourself against all possible outcomes. One can only estimate the probabilities for each step along the way, and multiply them. If they are really intent on pursuing this there should be other opportunities to withdraw before things get out of hand.
I have calmed down considerably since I received the e-mail yesterday, and I did make an honest attempt to have the image removed from Commons, so I'm not overly worried right now.
(Although nothing has been done yet... I just used the general "Commons permission" OTRS e-mail address. Is there a separate one I should have used for legal issues?)
AFAIK, The permissions queue is only one general one.with subsections for different areas. I don't know that there is a completely separate one for Commons.
There is a separate e-mail address; I'm not an OTRS gnome, but I'd guess that using that address automatically places the message in a certain subsection? Anyway, it was received, as I mentioned above.