[Foundation-l] Help requested on Commons copyright woes

[Ray Saintonge]

Brianna Laugher wrote:

>Hello,
>
>I originally posted this to the commons-l list (
>http://mail.wikipedia.org/pipermail/commons-l/2006-June/000277.html )
>to little response. So let's see if I can do any better with a wider
>audience.
>  
>
>* Logos. This has still not been sufficiently resolved, in that there
>is not a clear enough solution that everyone is aware of. Do we
>consider copyright independently of trademark status? Is that even
>possible? (
>http://commons.wikimedia.org/wiki/Commons:Deletion_requests/Archives11#Image:CSU-Logo_1998.jpg
>)
>  
>
The image has already been deleted so I have no idea what it refers to.  
Nevertheless if it refers to a German entity, and German law allows it 
that should be the end of the story.  More on this below.

>* "Agencia Brasil" license  (
>http://commons.wikimedia.org/wiki/Template:Ag%C3%AAncia_Brasil ) also
>has been debated several times. Related to the wider issue of, "if a
>website says "these images can be used freely, can we interpret that
>as allowing commercial use and derivative works, and thus
>Commons-compliant? Or do we need to check each time whether they
>intend to allow these specific rights?"
>
"Todo esse conteúdo pode ser adquirido em várias definições, inclusive 
em alta resolução, e ser utilizado livremente, mediante citação do 
crédito."  This seems clear enough.  If commercial or derivative use is 
not clearly forbidden than one should be able to presume that it is 
allowed.  Isn't this a general principle of law?  Since he became 
Minister of Culture Gilberto Gil has done much to move Brazil ahead.  
Consider this extract from "Wired" Magazine: 
http://www.wired.com/wired/archive/12.11/linux.html

> For Gil, "the fundamentalists of absolute property control" - 
> corporations and governments alike - stand in the way of the digital 
> world's promises of cultural democracy and even economic growth. They 
> promise instead a society where every piece of information can be 
> locked up tight, every use of information (fair or not) must be 
> authorized, and every consumer of information is a pay-per-use tenant 
> farmer, begging the master's leave to so much as access his own hard 
> drive. But Gil has no doubt that the fundamentalists will fail. "A 
> world opened up by communications cannot remain closed up in a feudal 
> vision of property," he says. "No country, not the US, not Europe, can 
> stand in the way of it. It's a global trend. It's part of the very 
> process of civilization. It's the semantic abundance of the modern 
> world, of the postmodern world - and there's no use resisting it."
>
> Gil laughs, as he often does when even he finds himself a little over 
> the top. But these days it's not exactly unusual to hear this sort of 
> thing from high-level members of the Brazilian government. The 
> preservation and expansion of the information commons has long been a 
> cause of hackers, academics, and the odd technoliterate librarian, but 
> in the world's fifth-largest country it is fast becoming national 
> doctrine. And the implications hardly end with free samba: Brazil, in 
> its approach to drug patents, in its support for the free software 
> movement, and in its resistance to Big Content's attempts to shape 
> global information policy, is transforming itself into an open source 
> nation - a proving ground for the proposition that the future of ideas 
> doesn't have to be the program of tightly controlled digital rights 
> now headed our way via Redmond, Hollywood, and Washington, DC.
>
Is this characteristic of a situation where someone's anal fears require 
every bit to be questioned?

>* Photographs of commercial products such as: Pokemon/Star
>Wars/Simpsons toys, box of Pringles, also people in dress-up outfits
>of characters such as Lara Croft/Chewbacca. Eloquence has raised this
>before ( http://commons.wikimedia.org/wiki/Commons:Deletion_requests/Archives10#Various_Star_Wars_pictures
>) but I doubt even he would think this has been satisfactorily
>resolved.
>
Most of these are probably fair use.  How else are you going to 
illustrate these things.  It's interesting to read to read the 
attorney's fee decision in Mattel v. Forsythe 
http://illegal-art.org/print/forsythe.pdf  Forsythe had used a 
representation of Barbie in a parody, and was awarded over $1.8 million 
to compensate him for the costs of standing up to the toy giiant.  
Mattel's action was judged unreasonable.  We aren't even doing parodies 
but simple neutral representations of the logos and other images.

Fair use did not come into U.S. law out of a vacuum.  It was not a part 
of the Copyright Act before 1909.  Instead the concept developed through 
a series of court decisions which were effectively codified in 1909.  
Canada's Copyright Act does not go into a lot of great detail about 
defining fair dealing, but the Supreme Court of Canada has used the 
United States experience with approval.  When dealing with similar 
matters in the law of other countries it would be more helpful if people 
referred to real precedents rather than simply guessing about what the 
law means.

>* US presidential portraits (
>http://commons.wikimedia.org/wiki/Commons_talk:Licensing#Portraits_with_unclear_copyright_status_from_the_U.S._Federal_Government
> kind of got split up and was carried over from a debate on en.wp
>anyway).
>
Many of these guys died before 1923.  Is there a suggestion that some of 
these are posthumous pictures? :-)

>* Photographs of art - if the artwork itself is old enough to be PD,
>is it true that any photograph of the art itself is also PD, but any
>photograph of the art in its frame or on a wall  is not? (Because it
>is 3-D, not 2-D anymore)
>
How old is the frame?  If the frame has its own copyright, can it be 
cropped out?  This would not be a problem in the US, but the UK 
situation remains unresolved.

>* Personality rights. What permission is required of people
>photographed, if any? (eg "Can I take your picture"/"Can I publish
>your picture on a public database that allows commercial use?") Is
>this a copyright concern or a "other law" concern that we don't need
>to worry about? What if the people aren't recognisable (and how can
>you decide that anyway?)? (
>http://commons.wikimedia.org/wiki/Template:Deletion_requests#Image:Kind_in_Nord.C3.A4thiopien.jpg
>is a current one, also some of the "visible thong" pictures on
>http://commons.wikimedia.org/wiki/G-string have been nominated before)
>
The only thing that I would feel confident in saying is that copyrights 
and privacy rights are distinct legal concepts, and this has nothing to 
do with copyrights. 

If the child in the picture is Ethiopian, and the picture was taken in 
Ethiopia what is the Ethiopian law on this?  Is this a news picture?

Is someone alleging that the people are recognizable?  Is it because of 
the tatoos?  Has the subject complained?  The G-string pictures seem 
posed to me with at least one instance describing the person as a 
model.  That seems to imply consent.  Looks like the do-gooders are 
running rampant on this.

>* Flag copyright - originality - again which laws to apply? (eg.
>http://mail.wikipedia.org/pipermail/commons-l/2006-June/000385.html ,
>is it true?)
>
There is nothing original about an exact copy of a flag.

Ec