[Foundation-l] Bridgeman v. Corel worldwide for Wikimedia Commons - yes or no?

[Birgitte SB]

--- On Fri, 8/22/08, teun spaans <teun.spaans at gmail.com> wrote:

> From: teun spaans <teun.spaans at gmail.com>
> Subject: Re: [Foundation-l] Bridgeman v. Corel worldwide for Wikimedia Commons - yes or no?
> To: "Wikimedia Foundation Mailing List" <foundation-l at lists.wikimedia.org>
> Date: Friday, August 22, 2008, 4:48 AM
> I just photographed individual plants, so layout does not
> come into
> question.
> 
> There was no sign  with a copyright claim or remark about
> photographs at the
> entrance - in fact it was hard to find an entrance at all.
> The only sign we
> found was a wooden sign "botanical garden" - that
> direction.
> 
> In hindsight, there may have been a text or direction on
> the walls of the
> refugio (mountain hut), some 100 meters away, but we were
> glad to have
> located the botanical garden at all, and didnt think of it.
> 
> 
> On Fri, Aug 22, 2008 at 8:42 AM, Nikola Smolenski
> <smolensk at eunet.yu> wrote:
> 
> > Cary Bass wrote:
> > > teun spaans wrote:
> > >> While on holiday in Italy i took some pix of
> plants in a botanical
> > garden.
> > >> There was no admittance fee, it was publicly
> accessible.
> > >>
> > >> Can i upload the pix of the plants I took
> there, or does the owner of
> > the
> > >> botanical garden has some form of ownership?
> > >
> > > This is not to say that the botanical garden
> doesn't claim restriction
> > > on the use of images taken within its walls (in
> my experience,
> > > non-commercial clauses are the norm).  In fact,
> such restrictions are
> > > quite commonplace for botanical gardens,
> zoological parks, and many
> > > other facilities.  This should not be mistaken
> for a claim of copyright;
> > > and at most they might do is deny you access to
> their property in the
> > > future.
> >
> > Actually, I think that a botanical garden could claim
> copyright on plant
> > layout or somesuch. I'm not aware that this has
> ever happened, however,
> > and of course panorama freedom would apply. Also not a
> problem when
> > photographing individual plants, unless they are
> [[living sculpture]]s.
> >


Concerns about restrictions placed on images by way of admittance, although a real issue, is not a copyright issue.  These are instead a contract issue and while this is binding on the photographer, is does not apply to the image like copyright does.  For example a photographer pays to atttend a museum exhibit and the ticket states attendees may use images only for non-comercial purposes.  That photagrapher could be sued for a breach of contract if they sold an image they took at the exhibit.  But if they upload an image to Commons. They have not used the image commercially (they provided it free of charge to a non-profit) and have not violated the contract.  Everyone else in the world that did not purchase a ticket to this exhibit is not bound by any contract and may do whatever is allowed by the copyright.  

Birgitte SB

Some discussion on this topic at: 
http://williampatry.blogspot.com/2008/05/anti-piracy-scam-canada-insulted-again.html