[WikiEN-l] Wikimedian image restorations exploited on eBay

[John Vandenberg]

On Thu, Sep 17, 2009 at 2:38 AM, Durova <nadezhda.durova at gmail.com> wrote:
> A strawman argument occurs when a response attempts to redefine a statement
> into something it isn't--something simpleminded and easier to rebut--and
> then pokes at the holes it created.
>
> Note the actual statement:
> "The vendor violates moral rights on all the items it offers for sale."
>
> And the rebuttal:
> "If you have not created a creative work, you are not the author and do
> not have moral/authorship rights."
>
> This vendor offers hundreds of items for sale, a substantial number of which
> are obviously copyrighted: among a group of NASA photographs, a publiciity
> shot of Nichelle Nichols as Lieutenant Uhura, a portrait of Thurgood
> Marshall owned by the NAACP, and a potrait of Jane Russell taken by George
> Hurrell.
>
> The vendor does not credit Hurrell or any other creative contributor.
> Several of them, such as Carol Highsmith, are still alive and active.  Some
> of these images may violate Wikimedians' copyleft licenses; featured
> pictures have been stolen for commercial purposes before.

Have you identified any items for sale which are from Wikimedia
projects and not clearly marked as being in the public domain?

Luckily the ebay items have sufficient metadata that we should be able
to track them all down.  A big job, but worth doing.

> In his eagerness to construct a strawman, John Vandenberg ignores all these
> factors.  This is one reason why the pool of featured picture contributors
> is small.

You started this thread with "An eBay vendor is exploiting a volunteer
restoration of the Holocaust." and "Going through their online store
revealed a dozen more of my restorations
for sale, all without credit."

Obviously I assumed that you were concerned that you and other
restoration volunteers had some moral rights being violated.

My apologies for that assumption.  It was a cop-out for me to say that
faithful restorers have no moral rights.  I wouldn't go as far as to
say I was being simpleminded, but I am a bit biased in that regard.

As I am shocked to learn that I am somehow partly responsible for the
pool of featured picture contributors being so small ... I'd better
pick up my act and help identify the creators of these works and look
for cases where moral rights have been violated.

Moral rights are only available in the U.S. for works of visual art,
defined here:

http://en.wikisource.org/wiki/United_States_Code/Title_17/Chapter_1/Section_101#work_of_visual_art
---
A “work of visual art” is—
(1) a painting, drawing, print, or sculpture, existing in a single
copy, in a limited edition of 200 copies or fewer that are signed and
consecutively numbered by the author, or, in the case of a sculpture,
in multiple cast, carved, or fabricated sculptures of 200 or fewer
that are consecutively numbered by the author and bear the signature
or other identifying mark of the author; or
(2) a still photographic image produced for exhibition purposes only,
existing in a single copy that is signed by the author, or in a
limited edition of 200 copies or fewer that are signed and
consecutively numbered by the author.
A work of visual art does not include—
(A)
(i) any poster, map, globe, chart, technical drawing, diagram, model,
applied art, motion picture or other audiovisual work, book, magazine,
newspaper, periodical, data base, electronic information service,
electronic publication, or similar publication;
(ii) any merchandising item or advertising, promotional, descriptive,
covering, or packaging material or container;
(iii) any portion or part of any item described in clause (i) or (ii);
(B) any work made for hire; or
(C) any work not subject to copyright protection under this title.
----

So I doubt that any visual art is on Wikimedia, and no moral right
violations according to that definition.

However non-U.S. creators have moral rights in their own
jurisdictions, which can be asserted anywhere, so we should be looking
for works by non-U.S. artists among the list of ebay items.

In the example you gave, the photographer is "Unknown Stroop Report
photographer", which raises the question of whether unknown creators
still have moral rights, given that they cant assert them.

In the next example, ebay item 200380798081 = Mount_Rushmore2.jpg, we
identify the photographer as Rise Studio, a U.S. author.

ebay item 200380821338 = Vernon_and_Irene_Castle2.jpg, and we identify
it as American photographer [[w:Frances Benjamin Johnston]].

To get the analysis underway, I have compiled a list of the 166 items
sold in the last 90 days, removed/merged dups, and put them into a
table.  Currently there are 140 distinct items, but there may be some
dups which I havent picked up.

http://commons.wikimedia.org/wiki/User:John_Vandenberg/source4docs

I've added a comment for ebay item 200370665186, which is one of the
items that you have mentioned in your original email.

I can also compile a list of unsold items.

--
John Vandenberg