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Request for clarification regarding screenshots

Template:RFCpolicy We've had some discussion at WT:FILM regarding the usage of screenshots, and there appears to be some disagreement centering upon one phrase. Per the Image guidelines, screenshots are to be used only for critical commentary and discussion of the cinema and television. Could there be a clarification on what "and discussion of the cinema and television" means? Is this distinct from the concept of critical commentary, and if so, how? If not, does this phrase need to exist? Most importantly, does it give license to allow for screenshots to be used solely in an identification-based capacity? Many thanks, Girolamo Savonarola (talk) 22:33, 5 August 2008 (UTC)

"Identification-based" is effectively an attempt at carte blanche for nonfree image use for a given class of articles, so no. The screenshot itself must be supported by critical commentary or otherwise be essential, not just nice, for the article. This is a free-content project. Seraphimblade 05:05, 6 August 2008 (UTC)

Well, what would "otherwise be essential"? Girolamo Savonarola (talk) 05:15, 6 August 2008 (UTC)

essential means that the image illustrates the example being described in the article in a complementary manor where words cannot fully articulate what you are attempting to explain. For instance, if you are describing some fantastical imaginary technology in a science fiction film, it might be necessary to provide a screen shot from the film where the item can be clearly seen. Or in another example from science fiction films, you are describing some significant prop that has been reused in a series of unlreated movies, you might want to provide one or two screen shot examples of the prop (eg, Robby the Robot, comes to mind). BcRIPster (talk) 15:53, 6 August 2008 (UTC)

For instance, if you are describing some fantastical imaginary technology in a science fiction film, it might be necessary to provide a screen shot from the film where the item can be clearly seen. - Okay, here's where the problem comes in. If this is taken at its face-value, then it means that anything fantastically visual within what is inherently a visual medium can be included as a screenshot within the plot section, merely to illustrate the plot by showing what is difficult to describe. However, if the phrase "if you are describing some..." means that this imagery is being discussed within a critical context (such as the film's visual effects innovations), then it's for critical commentary, and therefore doesn't need additional "essential" justification.

I think some of you can see my point here - the current phrasing creates a giant ambiguity loophole, and I personally can't see any reason why screenshots can't just be used solely "for critical commentary", period. I'd definitely be open to other thoughts on this matter, but if there's no outstanding reason otherwise, I'd like to propose shortening this as such. (Which will also more closely harmonize it with most of the other image types' fair usage criteria.) Thanks, Girolamo Savonarola (talk) 07:50, 7 August 2008 (UTC)

Note that "critical commentary" is a technical term in American law. It essentially means criticism or commentary. The key test for WP is NFCC #8: does the non-free content significantly increase readers' understanding of the topic? Would omission be detrimental to that understanding?

One other key test in American law is that no more copyright material is used than is necessary to achieve the identified purpose. So, does the identified purpose really need the image?

If it's clear from the article that the image really does significantly improve readers' understanding of the plot, then it would likely be acceptable. Jheald (talk) 08:08, 7 August 2008 (UTC)

Plot sections in film articles are largely written using the film itself as a primary source. Would the image have to be backed up by a secondary source's discussion of the image? Because if not, that creates additional problems. Per WP:PSTS, only simple, descriptive passages can be used in plot sections that have been drawn from the primary source. It should also make "no analytic, synthetic, interpretive, explanatory, or evaluative claims". Choosing an "important" image, or one that an editor believes to portray a (for example) unique visual effect, is in direct contravention of this, as it's relying upon the editor's interpretation of what's important or striking. Therefore, it seems to me, "critical commentary" from a secondary source is required (and these are almost exclusively used in sections other than the primary-souced plot section). Steve 08:46, 7 August 2008 (UTC)

This was raised briefly last month. In short, I don't think so. IMO it's just like the editorial judgment that goes in to assessing which elements of the plot are significant enough to go into the plot summary, and which should be left out. Nobody is calling that WP:NPOV, rather it's an editorial judgment. The article isn't saying "this is an important image", rather it is saying "this is what the Alien looked like". In that way, it is a simple descriptive use, per WP:PSTS. What then matters is whether there is a consensus that including the image "significantly improves readers' understanding". But that's not text in article space, rather it's a discussion in talk space. I suppose there might be a circumstance when one might argue that a particular image was being given WP:UNDUE weight, but that would be a discussion for that talk page, not cause for a blanket ban. Jheald (talk) 10:10, 7 August 2008 (UTC)

I disagree with the comparison of editorial judgment. Editors write in their own words the description of the primary source (the film). A better comparison is if there was a five-paragraph synopsis of a film by a historian, and we directly cited the whole thing for the plot section instead of rewriting in our own words. Misplaced Pages is supposed to be built on secondary sources, and the usage of primary sources is acceptable in a limited, complementary fashion. For example, WP:NOT#PLOT states, "Misplaced Pages treats fiction in an encyclopedic manner; discussing the reception, impact and significance of notable works. A concise plot summary is appropriate as part of the larger coverage of a fictional work." Also, you're neglecting the criteria of having "critical commentary and discussion of the cinema" when it comes to screenshots. It seems irregular to consider the plot summary as meeting this criteria. Editorial judgment applies to a lot of tasks in Misplaced Pages, like how much information to include from a source. My concern is that the editorial judgment is easily overridden for images in plot summaries, when they are removed by editors or admins who are cleaning up non-free images. The editorial judgment does come in when we have the requisite critical commentary and can choose what non-free image significantly illustrates that context. In this case, though, we have something more tangible, more explicit. If there is commentary about how the director shot his film, the screenshot serves a clear purpose. —Erik (talk • contrib) - 11:58, 7 August 2008 (UTC)

My comment wqas specifically addressed to the question of whether choosing a particular image would fail WP:PSTS,WP:NPOV and/or WP:NOR. Of course the image must still pass WP:NFCC. But I was arguing that the other policies WP:PSTS,WP:NPOV and WP:NOR are probably not be an issue. Jheald (talk) 16:29, 12 August 2008 (UTC)

NFC in infoboxes

At this FAC discussion for a recent Doctor Who episode, the issue of non-free content in infoboxes has been brought up. There are two distinct but related issues that have been raised: using NFC in infoboxes (on the general principle of non-free content avoidance), and using an NFC outside of the area of text where the image is discussed in the article text.

For the most part, I do agree to some extent that having NFC images in the infobox and away from the text is a problem, however, disallowing all NFC content in infoboxes is rather difficult to envision working well, as it goes against the general approach of en.wiki's use of infoboxes, to summarize the details of the topic at a glance.

My suggestion is then as follows: NFC is still allowed in infoboxes, but they must be NFC images that are the official representation of the topic. That is, a movie poster, a book cover, or a TV series title card are an appropriate NFC image for an infobox, but a screenshot or similar work that has to be selected by the end user for inclusion is not. This is not to say the latter cannot be used at all, but instead just needs to be used in the text where the image is discussed. The use of official imagery for the infobox avoids any issues of NOR/NPOV that may occur in selecting the right screenshot to use. (Mind you, there are times where there are multiple official images to use - that is a different argument and still holds with the intent here). And since generally screenshots or other user-generated-from-media content are used not to identify the topic but to visual represent elements that are part of the topic, this would then help to tie these images better with the text. --MASEM 13:29, 7 August 2008 (UTC)

I agree with this approach. I was wondering of a concern that was raised a week or two ago, though. What if the articles consist of little more than the image-containing infobox and a few sentences -- stubs, basically? Working with film articles, I've noticed that a lot of non-English film articles of no great notoriety tend to have very little content, yet there are many poster images for them. It seems more of a challenge to argue a case for their inclusion if there is not really any substance beyond the infobox. —Erik (talk • contrib) - 13:56, 7 August 2008 (UTC)

After thinking this through, I agree with this approach. That would automatically limit the number of screenshots to usually no more than one (many Simpsons ep articles including older GAs and FAs still have two), and this one used image must either be really pivotal for the plot to be used in that section, or for production. The official images are usually promo shots, which makes claiming fair use easier (less likelyhood of unintended copyright infringement). – sgeureka 08:14, 9 August 2008 (UTC)

Which policies and guidelines to follow for logo's?

After some discussing with J Milburn I have the following questions:

1. Does Misplaced Pages have (and/or should Misplaced Pages have) a special policy and/or guideline for logo's? Or is there no reason that logo's should be treated any differently from any other (non-free) images?
2. Should I follow WP:LOGOS or is that guideline a hideous one that should be deleted?

My answers to the questions are "Yes, Misplaced Pages has a special guideline for logo's and there are many reasons.", "You can follow WP:LOGOS". But J Milburn strongly disagrees.

My questions about how to use the policies and guidelines in a specific case will follow later, but we first have to know which policies and guidelines have to be followed. --Egel _Reaction? 09:50, 9 August 2008 (UTC)

There is a clear guideline for the use of logos at WP:LOGOS as you have identified. F---ing hideous or not its what we've got. Without having seen the discussion over the logo (and not wanting to start a riot), strongly disagreeing with the guideline is just a personal opinion, while the guideline is, well, a guideline. Its intended to provide direction for editors and establish a standard practise that is separate from opinion. Can you point at what the debate is about? I do note that guideline states that logos without slogans are preferred to those with. Wiggy! (talk) 11:47, 9 August 2008 (UTC)

The discussion was not over a specific logo but over can a non-free use rationale be written for a specific use. --Egel _Reaction? 14:34, 9 August 2008 (UTC)

This is a discussion well beyond the bounds of WP:LOGO, which has been written (badly) with the view to help people add a logo image to articles about companies (it doesn't well address logos for bands, government agencies, places and such, and has plenty of other flaws, but that's a discussion for another place). Thankfully, even the logo guideline itself acknowledges this, and says in big bold letters at the top that the non-free content criteria still apply to logos. This discussion is over Age groups in Scouting and Guiding, which Egel believes should include somewhere in the region of 150 non-free images- one for each of these scouting groups. This is where the disagreement comes in- I say that logos (what with them being, well, non-free) are non-free media, and should fall under the NFCC's "minimal use" rule, in the same way that screenshots in episode lists, album covers in discographies (etc etc...) do. Egel claims that as these are logos, they should be treated differently. (This is the reason I'm so opposed to WP:LOGO, it gives people a belief that logos shouldn't be treated as non-free media, but whatever...) Oh, and Egel- well done on introducing me with a quote that makes me sound like an aggressive individual with no respect for Misplaced Pages guidelines, and a bonus point for not informing me directly of this discussion. J Milburn (talk) 15:30, 9 August 2008 (UTC)

As I understand it, copyright and trademark are two separate "streams" of intellectual property law, with separate criteria regarding when the law applies to a specific work. (A few other IP areas would be patent, trade secret, etc.) Any one image may be either trademarked or copyrighted, or neither, or both. That a work is trademarked does not excuse it from application of copyright criteria/law, and vice versa. If an item is both trademarked and copyrighted, then use of it must simultaneously meet the requirements of both copyright and trademark law, and any licenses issued under those laws.

Now, Misplaced Pages policies and guidelines are applied only in addition to the related law, and Misplaced Pages could, if it wanted to, elect to apply those additional requirements for trademarks and for copyrights differentially based on the circumstance that a work is both trademarked and copyrighted. But it has not done so, to my knowledge, nor can I see a reason to do so. Therefore, I would presume that a work that is both copyrighted and trademarked must adhere to all policies/guidelines related to both copyrights and trademarks, at the same time - not either/or.

What this means in the context of Age groups in Scouting and Guiding is that no logo may be used if it fails any of the tests found in both WP:NFCC and WP:LOGO (except insofar as WP:LOGO is a guideline rather than a policy). I would suppose that all of the images in question are subject to the trademark guideline, and most (though maybe not all) are subject to the copyright guideline. Since most, if not all, of these logos will be subject to NFCC, I would suggest that their use in this particular article would not meet NFCC#3a - minimal use. To use just the handful that are in the public domain would result in a very patchy appearance for the article. (Egel's proposed usage does not appear to me to offend WP:LOGO in any way.) --Ipoellet (talk) 17:16, 9 August 2008 (UTC)

I certainly wouldn't be opposed to the article including any public domain logos- if they genuinely are free, we can do what we like with them. J Milburn (talk) 17:36, 9 August 2008 (UTC)

• The bold letters are: This page helps to ensure that logo usage conforms to Misplaced Pages's non-free content guidelines. It is clear (to me) that it says that when you follow the logo guidelines you stay within the non-free content guidelines.
• non-free content criteria 3a: Minimal usage. "Multiple items of non-free content are not used if one item can convey equivalent significant information." It is clear (to me) that it says that 1. for example you should use a group picture of a band instead of multiple portraits. 2. an extra screen shot, album cover etc. must give significant more information before it can be used. 3. It is allowed to use multiple items of non-free content when you can "prove" it gives significantly more information. (my POV ->)When you have enough "prove" the number of items doesn't matter, it can only makes it more difficult.

I have informed you at the place where we were discussing. (I have removed the offending word) --Egel _Reaction? 18:41, 9 August 2008 (UTC)

With regard to interpretation of NFCC#3a, I will also refer you to WP:NFC#Unacceptable use: Images #5. The basic idea of that example is that if you have a non-free image, it is likely to be germane only to the main article about it (or, in this case, about the organization the logo represents), not on various articles that address the organization indirectly or secondarily. The Age groups in Scouting and Guiding seems to fall into this latter category. --Ipoellet (talk) 22:26, 9 August 2008 (UTC)

Sufficiency of WP:LOGO

In the thread immediately above, J Milburn expresses the opinion that WP:LOGO "doesn't well address logos for bands, government agencies, places and such, and has plenty of other flaws". I know I have found the brevity of the final US government agencies section section of WP:LOGO to be frustratingly useless as a guide to appropriate usage. I wonder if J Milburn could expand on what (s)he believes to be the shortcomings of that guideline, and maybe spur a revision/improvement effort? --Ipoellet (talk) 17:16, 9 August 2008 (UTC)

(Briefly, as I am off in a minute) I find that the guideline is so often misused. By this I mean that people believe that logos should be treated differently from other non-free images- the above thread is one example, but it has also been used in other ways- for instance, someone claimed that the guideline implied that every article on a band should have its logo (when, in practice, band logos are not particularly important, and are generally only required if the logo is discussed in the article- this is not citing specific policy, rather discussions that have been had at various places including the heavy metal project, as heavy metal bands often have logos, and at FAC. I could dig out some key discussions if it really matters). Because it is misused and because it mostly seems to be an essay about where to place logos in articles (which is mostly redundant as the majority of logos do/should appear in infoboxes) I asked what the point of the page was. There'll be a notice somewhere in the village pump archives, too. I didn't really get much of an answer, so I changed it to an essay and people opposed due to lack of consensus. It was changed back, and the discussion drifted off-topic (due to one of the more misleading points in the page at the time which I'm hoping has now been fixed). As I see it, that page could be useful if it was changed to a discussion about further restrictions on logos due to trademark concerns. I can't do this, as I know nothing about trademarks, but as an editor who spends a lot of time dealing with non-free content, I only ever see that page being abused by people who believe that logos are for some reason more usable than other non-free images, believing that the NFCC do not apply to logos as they do to other non-free images. In a nutshell, that is why I am not a fan of WP:LOGO. J Milburn (talk) 22:40, 9 August 2008 (UTC)

WP:LOGOS rewrite

After seeing attempts to use WP:LOGOS to bypass the non-free content criteria, I have proposed a rewrite of the guideline. Comments are welcome on the guideline talk page. J Milburn (talk) 14:19, 11 August 2008 (UTC)

Possible fair use?

Image:Croatian first team.jpg has been listed at the copyright problems board. The uploader indicates that the copyright holders specifically released the image for use on Misplaced Pages only. Specifically, he translates them as having said, "We are very happy to help the cause of a such a project, providing that it is not used for any sort of commercial/profit use." Obviously, this is not an acceptable release for Misplaced Pages, since it does not permit commercial reuse and derivative works. My question is whether it would fit into any of the non-free content criteria. (I'm slowly gaining experience with images, but could so use an experienced image admin over there some days!) It is an historical image, but I don't know if it is sufficiently historical, as in the example here. Can this fit within WP:NFCC or should it be deleted, given the improper license? --Moonriddengirl 02:59, 12 August 2008 (UTC)

If it is sufficiently historical then keep, otherwise wikipedia only image are deleted. β 21:36, 12 August 2008 (UTC)

Thanks. I'll see if I can figure out how historically significant it is. --Moonriddengirl 02:31, 13 August 2008 (UTC)

More specific wording on fair use?

I'm involved in the discussion here regarding Image:HMS Conqueror (S48).jpg, so I won't suggest any specific edits, but it seems there's a serious misunderstanding on the purpose and scope of fair use. There's a common belief that every subject requires illustration, and that fair use allows for unauthorized use of copyrighted images when you can't procure an image yourself. But the intent of fair use is much narrower than that. Too many editors claim an image is iconic or otherwise passes WP:NFCC because the content of the image is iconic, whereas the test for fair use is whether the image itself is iconic. WP:NFCC gives the examples of the Billy Ripken baseball card and the Iwo Jima photograph, but could you provide more specific wording and more examples? Off the top of my head:

• A news photo or screencap of Zinedine Zidane headbutting Marco Materrazzi would be appropriate in an article or passage discussing the meme derived from the image, but NOT for illustrating Zidane, the 2006 World Cup Final, or even the incident itself.
• An Ansel Adams photo of Yosemite would be appropriate in discussing the project itself, but not for discussing Ansel Adams, Yosemite, or black and white photography.

My point is, editors seem to believe that as long as a photograph depicts a historic event or object, it's fair use. But a fair use image shouldn't be used to illustrate anything other than the image itself (except when the image is part of the subject's identity, i.e. book cover, logo, etc). --Mosmof (talk) 13:53, 13 August 2008 (UTC)

I'm all for clarify, as I find these issues confusing myself. I can't suggest wording, but I like what you've come up with. :) --Moonriddengirl 14:00, 13 August 2008 (UTC)

These examples do not seem to generally be true. An article about an artist can easily make a good case for some quantity of their art to discuss their style and so forth. Jackson_Pollock uses Image:No._5,_1948.jpg, in what is unquestionably valid fair use legally and in this policy. In contrast, the use here almost certainly fails the infamous #8. One cannot explain visual art without being able to see it any more easily than they can explain poems on roses to blind watersnakes. For photographers, painters, sculpters, clothing designers, architects and so forth (except where Freedom o' Panorama might save us, Frank Gehry is probably stuck with the Royal Ontario Museum and buildings from other places with good FOP), a small sampling of their art is definite appropriate. Zidane's headbutt probably isn't iconic enough yet, but I don't know that f'r sure.

Instead, maybe it is better to ask for examples of failing each criterion. Fair use to depict the subject of the photo where the photo is uniconic generally fail NFCC#2, and maybe #1, but that's all. An unfree photo of an artist's photograph of Yosemite to illustrate Yosemite fails NFCC#1 and NFCC#2, probably. For the artist himself (herself?) low quality images are used to steer clear of #2, and then it's just a balance of #3 figuring out how much you can use. WilyD 14:17, 13 August 2008 (UTC)

Just to make sure I understand correctly, could I get an example of an image that satisfies all or most of the other NFCCs, but fails NFCCC#8? My understanding is that simply being iconic isn't enough; there has to be an actual discussion of its significance. For example, the use of Image:Vj day kiss.jpg, a clearly iconic photograph, is appropriate in VJ Day because there's a whole section devoted to discussing the photograph in the article. But if it that section were missing and the image was simply used to illustrate the event, then it wouldn't qualify? Mosmof (talk) 15:54, 13 August 2008 (UTC)

For example, consider the photograph of the Israeli soldiers at the Western Wall, currently used in the infobox of Six Day War. This is perhaps the iconic photograph of that conflict, certainly what it meant to soldiers on the winning side. But there is no discussion of it in the article. I would find it very hard to make a case for that being in compliance with the current guidelines. At the very least, IMO, at least an extended caption is needed with content specifically about the photo -- who took it, where was it published, why has it become seen as iconic, what is the evidence of this, etc. -- but at the moment the article has none of that. Jheald (talk) 16:28, 13 August 2008 (UTC)

This was pointed out on this IDF discussion one year ago. The result was that the image shouldn't be deleted and a compromise was made to remove the image from the infobox and to add some critical commentary / discussion about its importance to some article. It seems nothing changed since them. --Abu badali 15:17, 14 August 2008 (UTC)

Historic logos

Fasach Nua has initiated a one-man crusade to purge historic logos from Misplaced Pages, insisting that this guideline backs up his actions. Fasach Nua seems to believe that only current logos are acceptable in articles, regardless of any other considerations (how long a previous logo was in use, it's historic significance, whether the logo is discussed in the article, etc). IMO, his crusade is counter-productive and is causing unnecessary wiki-strife. How should these guidelines be interpreted regarding historic logos? Kaldari (talk) 17:55, 13 August 2008 (UTC)

If the historic logo is discussed in the article, then its inclusion is probably supported. If there's just a gallery (or even only one or two) logos which have just been chucked in, then they should be removed. Could you show a few examples of logo removals you are concerned about? J Milburn (talk) 18:23, 13 August 2008 (UTC)

A lot of historic logos no longer fall under copyright or trademark laws, so do your homework before you decide that a logo should be removed. Otherwise, you will also cause unnecessary wiki-strife. dhett 01:24, 14 August 2008 (UTC)

dhett is specifically referencing the "copyright not renewed" proviso. Galleries of public-domain logos do not violate any policy, and as a good number of historic logos are public domain (as "copyright not renewed"), such a purge is inappropriate. Editors need to tread carefully with image removals. Firsfron of Ronchester 06:37, 15 August 2008 (UTC)

Actually, here is a more comprehensive guide, because if a work (including an image) was published before March 1 1989 without a copyright notice, it might be in the public domain. dhett 23:08, 22 August 2008 (UTC)

Technical query in preparation for Signpost article

User:elcobbola is preparing a Signpost "Dispatch" article on the scrutiny of NFC issues in nominations for featured status. This will be a powerful way of getting across our message about taking NFC issues seriously, and persuading WPs at large to familiarise themselves with the NFCC. Elcobbola posted the following query on my talk page, which I can't answer. May we have expert input from contributors here, please? Tony (talk) 01:25, 15 August 2008 (UTC)

• NFCC#4 sets forth "Non-free content must have been published outside Misplaced Pages." (emphasis mine)
• Publication is "the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending"

Would it not, then, be that case that Wikipedian-created images (i.e. derivative works) of, for example, sculptures would fail? How can this image be reconciled? Could the issue be gamed/resolved by, say, uploading to Flickr or a self-published website first? If I'm being too literal, do you happen to know how the criterion was meant to be interpreted and/or what it is intended to prevent? ЭLСОВВОLД _talk 01:06, 15 August 2008 (UTC)

The nonfree content criteria only apply to nonfree content. They don't apply to free content. Which any content a Wikipedian makes must be. WilyD 01:29, 15 August 2008 (UTC)

A photograph of a copyrighted statue has two copyrights: the phtographer's and the sculptor's. That's why Image:Life Underground Alligator.jpg is nonfree. — Carl (CBM · talk) 01:40, 15 August 2008 (UTC)

Re. Tony: we do permit original photographs of copyrighted 3D works. The question you're asking just hasn't come up much. It may be that the policy should be clarified on this point. My guess is that one reason for #4 is that copyright law is often concerned with infringement of commercial opportunity, and if we were to publish a nonfree work before its creator, that would be bad. But that isn't an issue with publicly displayed statues. — Carl (CBM · talk) 01:40, 15 August 2008 (UTC)

The United States does not have freedom of panorama. Are NFCC#2 and NFCC#4, then, meant to address the same thing? ЭLСОВВОLД _talk 01:44, 15 August 2008 (UTC)

I remember a story from years ago of a low-budget documentary that happened to catch five seconds of an episode of The Simpsons on a TV monitor in a grade-school classroom. The docomunenary-makers' lawyer said "Better be safe and check it's OK". The copyright owners of The Simpsons wanted US$25,000 to allow it to remain in the doco. Bastards. But it's something to ponder. Tony (talk) 01:49, 15 August 2008 (UTC)

I'm totally confused with where this conversation has gone. The issues for 3D art are essentially the same as with any other art (and other copyrightable works generally). A sculpture might be "published" when it is sold, though obviously what constitutes publication depends on the particulars. The right to choose when to publish a copyrighted work is an integral part of copyright. (This is a factor, along with commercial value etc, in courts' fair use analysis.) NFCC 2 and 4 are related, but not the same. Some works might have no commercial value, but their creators have the right to prevent publication nonetheless. Calliopejen1 (talk) 01:53, 15 August 2008 (UTC)

Is the confusion over what must be published? A wikipedian's photo of a sculpture need not be published, because we would require the photographer to release his image under a free license (subject to the copyright in the sculputre) so the NFCC wouldn't apply to the photo itself, but the sculpture itself need be published. (So here the issues of when a one-of-a-kind artwork is "published" would come into play.) Calliopejen1 (talk) 01:55, 15 August 2008 (UTC)

The difference between 3D and 2D art is that the photographer has an independent copyright over a photo of 3D art (along with the copyright of the artist) but not over a photograph of 2D art (which only has the copyright of the artist). — Carl (CBM · talk) 01:58, 15 August 2008 (UTC)

Re Elcobbola, I do think it is related to #2, and you're bringing up a good point. #2 is somewhat more general, since it covers all commercial use, not just the first publication. The other motivation I know for #4 is covered by #1 - a WP user who creates a diagram or photo that they will publish for the first time on WP can't upload it here as nonfree instead of free. I don't know of any other motivations for #4, and I don't know the original motivation for it. — Carl (CBM · talk) 01:58, 15 August 2008 (UTC)

What I'm running up against, obviously, is the difficulty of explaining NFCC - especially in the context of a FA review - when no one is exactly sure what some of the criteria mean. Does it make sense, perhaps, to just discuss what we'd actually like NFCC#2 and #4 to accomplish and then consolidate/reword to articulate that purpose? These criteria appear to have been dumped in one day in October 2005 and I can't find the underlying reasoning therefor. ЭLСОВВОLД _talk 02:07, 15 August 2008 (UTC)

No no no, they're separate issues. It is well established in copyright law that the "unpublished" nature of a given work "militates against" fair use. See e.g. Sundeman v. The Seajay Society, Inc., 142 F.3d 194 (4th Cir. 1998) and http://www.lib.uconn.edu/copyright/unpublished_generic.html. This can apply even where things have zero commercial value. One example of where the issue of unpublished works comes up is in archival photos or that sort of thing. If they have never been published, even if they have no commercial value, we cannot be the first to publish them. Calliopejen1 (talk) 02:15, 15 August 2008 (UTC)

Better citation: "the scope of fair use is narrower with respect to unpublished works." Harper & Row v. Nation (supreme ct). Calliopejen1 (talk) 02:27, 15 August 2008 (UTC)

Okay, lemme clarify. The copyright portion (the statue) is published (effectively, by public display). The Wikipedian's copyright needs to be freely licensed. Think of it as a combination of two works. Only the nonfree portion needs to meet the nonfree criterion. WilyD 02:43, 15 August 2008 (UTC)

No, public display is not publication in and of itself. Publication, defined in Title 17, is as quoted above. ЭLСОВВОLД _talk 02:46, 15 August 2008 (UTC)

Hmm, this seems to be true in the United States. Maybe #4 is a problem. WilyD 03:04, 15 August 2008 (UTC)

It's a tricky one. A famous U.S. court case once decided that the Oscar statuette as sculpture had not been "published", despite a few having be re-sold. In the old days court reluctance to declare something published was probably a reaction to at that time how completely one lost copyright if one accidentally did something considered publication without an explicit copyright claim. Nowadays that case law seems a bit odd, even a perverse incentive. On the other hand images of the Oscar certainly have been published; and what we might be publishing would be just another image of the Oscar.

More to the point, it may IMO be entirely likely that #4 came into being without anyone ever even thinking of the U.S. legal meaning of the word "published". I suspect the intention was to be more careful about making material widely available on the internet if it had not been widely available before.

With the statues, I wonder whether #4 is serving any useful purpose. If essentially similar photos of the work are already on the net, then the impact on the fourth fair use factor is likely to be minimal - I don't see why Misplaced Pages should declare fair use of such material particularly beyond the pale.

If the object is open to public access and apparently widely publicly photographed, then even if Google images doesn't find such photos, I suspect the impact on the fourth fair use factor is probably still minimal. So NFCC clause #4 seems significantly inflexible, and we should perhaps review what we think we're setting out to achieve with it.

Perhaps what this indicates is that, even with WP:NFC, the written policy is never the last word. WP policy is not black-letter law. On WP it is always important to think what practical good the policy has been framed to try to achieve, particularly in cases with more unusual aspects, no matter how much the policy has been tested out in more standard cases. Jheald (talk) 12:18, 15 August 2008 (UTC)

Indeed, after much searching, I've found the policy that applies for this highly specialised, previously undiscussed case. WilyD 14:09, 15 August 2008 (UTC)

NFCC4: A Proposal

I think we should just change the wording all together.

Currently, it says this:

4. Previous publication. Non-free content must have been published outside Misplaced Pages.

I think it should be changed to this:

4. Previous publication. Non-free content must have been published outside Misplaced Pages first, and cannot be self-made. If laws (or the lack there of) such as freedom of panorama add restrictions that make a self-made image non-free, this will not apply.

There, is this better? ViperSnake151 12:54, 15 August 2008 (UTC)

Cannot be self-made doesn't seem necessary to this clause. User-made content is supposed to be freely licensed, but that has nothing to do with this. It is better to not mix clauses like that. — Preceding unsigned comment added by WilyD (talk • contribs) 13:00, 15 August 2008 (UTC)

• No. I think the suggestion gets things 180° in the wrong direction. If there is a famous sculpture in a city plaza that is notable enough to deserve its own article, we should prefer fair use of a user-created image of the non-free sculpture, rather than fair use of somebody else's non-free copyright image of the non-free sculpture. Jheald (talk) 13:06, 15 August 2008 (UTC)

Sorry, the suggested wording is so convoluted, with so many layers of implied double negatives, that I thought it was saying the exact opposite of what you wanted. Jheald (talk) 13:10, 15 August 2008 (UTC)

Question: should we be careful not to exclude some other "derived" works that we currently permit -- eg in a few very particular occasions the tiling together of previously well-published non-free images, such as Image:10dr19.jpg created for the article Doctor Who ? Jheald (talk) 13:21, 15 August 2008 (UTC)

This wording is all wrong, but its intent is not bad. What we need is probably more like "Nonfree works must have been published outside Misplaced Pages first, or for artist works of which only a single copy exists, must have been put on public display". It probably needs reworking, and maybe a preference of the former to the latter? WilyD 14:08, 15 August 2008 (UTC)

What we really want to say is that "all original content first published on Misplaced Pages must be freely licensed". This would imply that derivatives of non-free works that also contain original creative elements, such as photographs of statues, should be released under a free license but with a clear statement noting that they incorporate (under the legal doctrine of fair use, and subject to Misplaced Pages's non-free content policy) elements that may not be free depending on the context they're used in.

Unfortunately, that would pretty much make Misplaced Pages's current image tagging system choke and die. We assume that images are either free or not, and the idea of "a free image of a non-free artwork" just won't compute. I suppose, given enough time and effort, that the system could be made to handle that; in the mean time, however, something like what WilyD proposed may be the best approximation. —Ilmari Karonen (talk) 14:23, 15 August 2008 (UTC)

Yeah, there's a problem with the tagging and uploading system. WilyD 14:39, 15 August 2008 (UTC)

Okay, let's try this again

4. Previous publication. Non-free content must have been published outside Misplaced Pages first, or for self-made reproductions of artistic works covered by a incompatible freedom of panorama exemption (or lack there of), put on public display. All other original content first published on Misplaced Pages must be freely licensed.

This better? ViperSnake151 16:54, 15 August 2008 (UTC)

WilyD's version above is much more straightforward, and seems to me entirely adequate. Jheald (talk) 21:37, 16 August 2008 (UTC)

The underlying intent to NFCC#4 almost seems to be respect for "privacy" (for lack of a better phrasing). One of the rights afforded by copyright protection is that of publication; it seems, then, that it would be particularly unfair to "force" an image still under protection to be published (thus the purpose of NFCC#4). If we accept that NFCC#4 is indeed meant for this purpose, does the issue become moot for publicly-exhibited works? Would the issue perhaps be resolved by the following:

4. Previous publication. Non-free content must have been published or publicly-exhibited outside Misplaced Pages.

The italicized portion is new. Obviously, there is room to kibitz about whether considerations of permanence should be included or whether "exhibited" should instead be, for example, "displayed", "installed", etc. ЭLСОВВОLД _talk 17:32, 15 August 2008 (UTC)

Anyone? Is there agreement/disagreement about the underlying intention of NFCC#4? Does the addition seem reasonable? ЭLСОВВОLД _talk 15:06, 19 August 2008 (UTC)

It does seem to be approximately the purpose. I'd like it if we could add a "are unlikely to ever be published" clause, but I'm unsure how to make it workable. WilyD 15:14, 19 August 2008 (UTC)

Seems reasonable. The legal term (17 USC 101) is publicly displayed (no hyphen). An alternative for the second part of ViperSnake151's suggestion would be "Misplaced Pages expects all contributors of original material (including derivative works) to license their copyright under a free content license." In the past, we have blocked users who have added GFDL opt-outs onto their userpages. On the other hand, nobody can license a copyright they don't possess — if they could, there'd be no need for this page ;) Physchim62 (talk) 15:49, 19 August 2008 (UTC)

I went ahead and made the change, since this is the practice. WilyD 15:55, 19 August 2008 (UTC)

Multiple images in a single infobox

Hi, I think there is a case of image overuse at Ganon. Thoughts? Megata Sanshiro (talk) 14:27, 21 August 2008 (UTC)

As a problem with two images in the infobox, that itself is not an issue - I've seen montages and other multiple-source images used for identification when one single image is not the best representation. The issue is that the total number of non-free images on the page is a problem (including that there are two in the infobox). --MASEM 14:53, 21 August 2008 (UTC)

I thought montages were not allowed since they amount to the same number of copyrighted images? Megata Sanshiro (talk) 08:35, 22 August 2008 (UTC)

Montages in of themselves are not bad, but you must consider each non-free starting image that was used to created as part of the total non-free image count of the page. A montage of 2 pictures on a page with maybe one additional picture is likely ok. A montage of 5 pictures on a page that already have 10 pictures is likely not. --MASEM 12:56, 22 August 2008 (UTC)

Non-free Microsoft software screenshot

All Microsoft screenshots should be reviewed - there is a fairly new template {{Non-free Microsoft software screenshot}} to be used.--Kozuch (talk) 14:47, 22 August 2008 (UTC)

That's not a free license or free permissions Microsoft is granting there - we ought just use normal fair use provisions and ignore them. Phil Sandifer (talk) 14:53, 22 August 2008 (UTC)

To be honest, I see no reason for FU on images that suit the above linked template. It is a permission from Microsoft, what more do you want??? I do not say all MS images here suit the above linked template (see MS page). Regards, --Kozuch (talk) 15:21, 22 August 2008 (UTC)

We do not use images based on permission being granted to Misplaced Pages - that is an unacceptable license. We care about permission only inasmuch as people are willing to release under the GFDL or a similar license. So permission matters only if the permission amounts to a free license. This clearly does not - Microsoft's permissions guidelines here: are quite restrictive, and in no way suit our purposes. Phil Sandifer (talk) 15:40, 22 August 2008 (UTC)

Press agency photos

There is a discrepancy between the policy statement and the guideline interpretation. The policy states "Respect for commercial opportunities. Non-free content is not used in a manner that is likely to replace the original market role of the original copyrighted media." The guideline at Misplaced Pages:Nfc#Images #6 bars "A photo from a press agency (e.g. AP), unless the photo itself is the subject of sourced commentary in the article."

Every copyright holder is entitled to charge for use of copyrighted material, so there is no reason to single out press agencies in this regard. If fair use is allowed at all for non-free images, it should apply equally to all sources. An amateur photographer with an exclusive image stands to make a lot of money from that. In fact, it is likely to be more crucial to him/her as the opportunity to market work is likely to be a rare occurrence. A low resolution image from a press agency does not replace the original market role, because press agencies do not sell low quality images: they sell good quality ones.

If it is considered that the use of an image does decrease commercial opportunities, then it will do so regardless of whether or not the photo happens to be the subject of sourced commentary.

In fact, the presence of a low resolution image on wikipedia is likely to increase business for a press agency, as it establishes it as a definitive one, and commercial sources who research and find the image on wikipedia will have to pay for it in the normal way.

Ty 01:38, 23 August 2008 (UTC)

Though entitled to charge for use of a photo for purposes of illustrating articles, the point about a press agency is that it is in the business of doing so. So it is more likely that by reprinting the article instead of allowing a commercial website to pay for it, we are taking business away from the agency. A couple other things to consider. First, many photo archives (but not press agencies as far as I know) assert copyright to photos they happen to have, even though they don't really have the copyright. Second, it's a funny boundary area of copyright law - fair use would urge that we can use such photographs to illustrate an article concerning the photograph itself. But news agencies and photo archives would say that they are in business to make money from these things - in fact, they are in business to make money off of what would otherwise be fair use. There's a tension. Incidentally, fair use in copyright law, and non-free use here on Misplaced Pages, are a bit of a balancing act. One of the reasons they don't apply evenly to all sources in a mechanical way is that the value of the public to see the photograph gets balanced against the interest of the copyright holder. The more the balance shifts, the more or less likely it is that fair / (or nonfree) use applies. Hope this helps. Wikidemo (talk) 01:48, 23 August 2008 (UTC)

Additionally, we have a mandate to reduce the amount of non-free content to what is essential. The NFCC are supposed to be applied as strictly as possible in order to comply with our mandate. howcheng {chat} 01:07, 24 August 2008 (UTC)

Exactly. That is what the discussion is about—determining what is essential. Ty 05:37, 24 August 2008 (UTC)

We have no knowledge whether a non-agency source is in the business or not and take no steps to find out. There are plenty of freelance photographers for whom revenue from a single image may be much more important than for an agency. Misplaced Pages's use of the image in no way precludes a commercial web site's paying for it. As I have also pointed out, it is actually likely to gain more business for the agency, as it is a free ad for the image's importance. If agencies are falsely asserting copyright, that is not wikipedia's problem. I don't see the relevance. Fair use has four balancing factors, including whether it is a non-profit use and whether it is for educational purposes, as well as considerations which include, but are not limited to, critical commentary. The advancement of knowledge through the addition of something new is also a criterion, and an encyclopedic article on the subject depicted is an advancement of knowledge and does add something new to it. Certainly in the past on wikipedia it has been stated that inclusion of an image in an encyclopedic article is a transformative use of that image per se. It is precisely my point that non-free use should not be applied in a mechanical way, which at the moment is what the guideline does. Ty 03:10, 23 August 2008 (UTC)

• What is the rationale for exempting "A photo from a press agency (e.g. AP), unless the photo itself is the subject of sourced commentary in the article." from Fair Use? Why an exemption for one group as opposed to, say, using Flickr images . --Richard Arthur Norton (1958- ) (talk) 22:41, 23 August 2008 (UTC)
  • It isn't "exempting" them. It's just an example of a typical case where the illegitimacy is so obvious as not to allow any further debate. Images from other, less clearly commercial sources may have to be looked at on a case-by-case basis, but it doesn't mean commercial interests can generally be ignored there either. Fut.Perf. ☼ 05:11, 24 August 2008 (UTC)
    • Would you care to define what you mean by "illegitimacy". Are you referring to copyright law or wikipedia policy? Ty 05:37, 24 August 2008 (UTC)
      • Both. Primarily the first, and by consequence the second. Fut.Perf. ☼ 05:40, 24 August 2008 (UTC)