It's certainly true that edge examples cause difficulties for Commons
admins, not jus because of a lack of knowledge but because the law is
inevitably uncertain at the edges. Copyright law generally has no
'bright lines'.
The best way to handle that, in practice, is to try to develop Commons
policy or guidelines that define as accurately as possible what is and
is not acceptable to the community, it being understood that Commons
guidelines don't need to be as vaguely drafted as the underlying
copyright law. It would be great if we could agree for example that
for Commons purposes "permanently on display" should be interpreted as
"not known or reasonably believed to be displayed on a non-permanent
basis", or something like that, to be supported by specific examples in
a case book.
I'd be happy to join you, Fae, or anyone else who'd like to work on a
proposed Commons guideline to that effect.
Michael
Fæ wrote:
On 26 August 2015 at 11:09, Michael
Maggs<Michael(a)maggs.name> wrote:
...
Commons will accept photos of public art provided
they do not infringe any
copyright. That means in practice that the artwork being photographed must
either be old enough to be out of copyright, or (if still in copyright) must
be permanently displayed in a public place. Pieces which are part of a
gallery's permanent displays are OK, but those which are part of temporary
exhibitions are not.
...
that's very unusual. Almost all public art
images that are deleted from
Commons fail because it's really obvious that the artwork is part of a
short-term and temporary display.
Telling volunteers that "on permanent display" is the rule of thumb,
raises expectations that need to be managed. A new contributor who
makes a lot of effort to take high quality photographs of a
permanently located public artwork, would probably be upset at finding
it up for deletion. If someone does run a large volunteer project in
the UK, it would be a useful outcome to add marginal FoP examples that
test the definition to the Commons guidelines as a UK specific
case-book. In practice I would say "on permanent display, probably" is
a better rule of thumb.
I think I have more experience of having uploaded photographs taken to
Commons deletion discussions under Freedom of Panorama than other
readers of this list, and the cases can be difficult for anyone to
interpret. Off the top of my head, examples of past tricky discussions
include:
1. Statues where the artist died fewer than 70 years ago and the
statue has been on permanent display in the Tate for decades, but used
to be in a different location. Hypothetically having been moved could
mean it fails the UK FoP, however it was eventually kept under an
understanding of "intention".
2. Close-up of a public park bandstand, at least 70 years old, but put
up for deletion as it was painted with varied colours. Deleted.
3. Graffiti with graphical elements, many cases, deleted. Even though
graffiti cannot be moved, and the artist means to make a public
statement, it is still considered a non-permanent work.
4. Artwork installation of decaying salt statue. In contradiction to
the way graffiti is handled, this was kept as the intention of the
artist was considered to make a permanent public work, even though its
nature is impermanent.
5. Political graffiti that is text only, many cases, kept. Rather than
under FoP, these can be kept due to low creativity. Fancy
semi-graphical text might still be deleted.
6. Decorative fixed signs, painted gates, decorative posts, again
mixed results. In theory objects like decorative pub signs are not
permanent, however their intent is seen as to be effectively permanent
and are mostly kept. I had a photograph of a painted gate recently
deleted, though probably intended by the artist as permanent this was
considered more mural work and so was deleted (I think speedy
deleted).
7. Fixed advertising, such as painted on walls or decorative
shop-fronts. Billboard advertising fails FoP though confusingly many
examples are kept on Commons as the billboard is not the "focus" of
the image... only older advertising such as one might see on the side
of buildings from the 1950s are invariably kept even though the
ownership/copyright history may not be understood. There are plenty of
more recent examples being both kept and deleted, often the issue of
where to judge that the creative component is not the focus of the
image is critical.
8. Painted statues, this rarely comes up, as most people seem to think
that painted statues are 3D works, however close-ups of painted 3D
objects are often questioned and some are deleted as a graphic work.
Good recent examples are the fibreglass CowParade statues, some
probably becoming fixed public works, many being highly decorated and
hard to justify as being suitable for Commons.
9. Public statues which are on loan or tour. Some quite well known
public artworks are on long term loan, even if weighing several tonnes
and bolted into the ground in public parks. Some end up being moved
around the park in redesigns, and others go on tour to other countries
even though considered as on permanent display. The display history of
a statue is critical if the copyright is questioned, especially for
more recent artists with copyright being of interest to their estates,
such as Barbara Hepworth.
The conclusion is that many Commons administrators have difficulty
judging marginal cases or knowing how to assess the background of a UK
work, such as whether it was a Crown commission, whether the artists'
estate has an interest in protecting copyright, or what to do about
corporate commissions where the company has long since gone out of
trade. An understanding of the UK context which might be overlooked by
some regular non-UK based deletion discussion participants can often
prove critical (e.g. what Crown Copyright, WAAC or the London County
Council are about).
In practice we often see marginal cases which result in significant
and tiresome debate, so the bigger the case-book the better. This not
only helps Commons admins, but is a practical thing to point new
contributors to, rather than dry text.
Fae
