On Tue, Oct 25, 2011 at 9:45 PM, Robin McCain robin@slmr.com wrote:

On 10/25/2011 2:57 PM, foundation-l-request@lists.wikimedia.org wrote:

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You've made quite a few incorrect assumptions there.

Of course Commons editors should be deciding which images are PD.  But when there is a dispute, it makes no sense for people who don't even know what a derivative work and an underlying work are, to be discussing the applicable law.

Anyway, the deletion process obviously doesn't work.  File:"Appreciate America. Come On Gang. All Out for Uncle Sam" (Mickey Mouse)" - NARA - 513869.tif is clearly not public domain.  And File:"Appreciate America. Come On Gang. All Out for Uncle Sam" (Mickey Mouse)" - NARA - 513869 - cropped and tidied.png is probably a copyvio.  Yet both remain, despite deletion discussions, marked as public domain.  (The deletion discussion over the latter is especially humorous.)

It is fair use - here's my 2 cents worth on why.

AFAIK fair use isn't allowed on Commons. And the latter image may not be fair use in the first place, as it is being used primarily to distort the integrity of the original image in a way which claims to be neutral and encyclopedic.

The purpose of this image was the sale of war bonds - not the display of a character whose image is owned by the Walt Disney Company. As a piece of history it is NOT a derivative use of Mickey Mouse. If someone were to remove the mouse image from context and try to pawn it off as being ok to use in unrelated creations, they would probably be sued - because that might be a derivative use.

Removing the mouse image, distorting it (by removing the flag and text, turning patriotic Mickey into hitchhiker Mickey), and using it in an article which has nothing to do with the sale of war bonds, is exactly what David Gerard did.

NARA has many images of war bonds collateral and all were commissioned by or for the U.S. government - which means they are public domain unless otherwise specified. Walt Disney gave up control of this image in this context for the public good, as did everyone in the entertainment industry. See http://en.wikipedia.org/wiki/United_States_home_front_during_World_War_II#Pr...

You don't seem to have read the deletion discussions. No one is claiming that this image is public domain because it was commissioned by or for the US government. The claim is that the copyright was not renewed.

And apparently that's fine, if you are making a faithful reproduction of the image in its original context. But tagging an image PD does not imply "you may only make faithful reproductions of this image in their original context". And David Gerard's distortion of the image does not qualify as a faithful reproduction (and shouldn't be presented as a Disney-created image in any case, because it has been distorted).