[Foundation-l] Public domain Mickey Mouse. At last.

[Anthony]

On Tue, Oct 25, 2011 at 9:45 PM, Robin McCain <robin at slmr.com> wrote:
> On 10/25/2011 2:57 PM, foundation-l-request at lists.wikimedia.org wrote:
>> 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#Propaganda_and_culture

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).