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Commons:Deletion requests/Category:USMC War Memorial - Wikimedia Commons

Commons:Deletion requests/Category:USMC War Memorial

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This deletion debate is now closed. Please do not make any edits to this archive. You can read the deletion policy or ask a question at the Village pump. If the circumstances surrounding this file have changed in a notable manner, you may re-nominate this file or ask for it to be undeleted.

Category:USMC War Memorial[edit]

Much as I hate to do this, this work is doubly copyrighted. The original 1945 photo is copyrighted by Joe Rosenthal, and the War Memorial is copyrighted by artist Felix de Weldon. There is no FOP in the US and both works have been properly published with notice and registration at the copyright office.[1][2] ---Nard the Bard 14:58, 8 May 2010 (UTC)

  •  Keep According to the National Park Service the memorial is assembled by several parts, also the base of the memorial ist constructed. It is therefore a structure not an object like a statue or a sculture. According to s:en:United States Code/Title 17/Chapter 1/Section 120 The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place. Note that the relevant part of the regulation is underlined by me. This structure is not protected by the law considering graphical depictions. --Matthiasb (talk) 14:19, 11 May 2010 (UTC)
  •  Keep per above. There is freedom of panorama in the US for such types of structures. Besides which, this is one of the most photographed landmarks in the national capital (I know, it's actually in Arlington), and as far as I can tell, there has never been a peep about copyrights and derivative works regarding this memorial. Also which, I do believe the FOP restrictions on art (which I don't think even count in this case) regard publishing for commercial use. If licensed properly, is that not within the purview of Commons? Bahamut0013 (talk) 20:11, 13 May 2010 (UTC)
  •  DeleteThe arguments made above fail for several reasons:
  1. The suggestion that somehow a large sculpture -- one made in several pieces -- becomes a building and is covered by the building exemption is not correct. That would suggest that somehow a multipiece Alexander Calder mobile or stabile would be covered by the same exemption -- yet the only Calder works for which we have photos are from other countries that have FOP for sculpture, not from his home country, the USA. In fact, most commentaries on this law go the other way, so that if a piece of art is attached to a building, then photos of the building may be off limits, except for de minimus or fair use exceptions.
  2. The sculpture is a derivative work of the Joe Rosenthal photo, so that even if there were FOP for sculpture in the USA, this sculpture would still be off limits for us.
  3. As for the argument that no one has been hassled about copyright, the uses were probably all "fair use" as that would cover non-commercial use of the images. But you can bet that if someone took one of these images and altered it for a political purpose or commercial use, the user would hear from the sculptor and the Associated Press (which owns the copyright to Joe Rosenthal's photo). Note that the photo appears on the English Wikipedia with a very specific limited license from the AP.

. . . . Jim . . . . Jameslwoodward (talkcontribs) 22:27, 14 May 2010 (UTC)

  •  Keep There are a few pictures in this category that do not pose a copyright issue, so a blanket delete statement to remove all files in a category seems wrong IMHO. Each image needs to be reviewed individually. Thanks! FieldMarine (talk) 12:23, 16 May 2010 (UTC)
 Comment But there is no freedom of panorama for statues in the USA.      Jim . . . . Jameslwoodward (talk to me) 23:23, 12 September 2010 (UTC)
  •  Keep. I can't believe this proposal even lasted a day, let alone four months. Can't we close this? First of all, the category on the War Memorial does not contain any reproductions of Rosenthal's photograph (which predated the memorial), so arguments about the copyright status of the photograph are irrelevant. All that matters is the copyright status of the work of art that you're reproducing. Presumably Rosenthal's copyright was addressed out when de Weldon was granted a copyright for his use of Rosenthal's work. A discussion of fair use for photographs of statues has occurred here [3] and there is even a Wikipedia template [4] for it (sorry for the hyperlinks; I don't know how to get around the redirects to "Fair Use" when I try to wikilink). I can't understand how anyone could consider using a faithful photographic reproduction of a statue in a public area for the purpose of illustrating a factual encyclopedic article not to be fair use. Ketone16 (talk) 15:46, 12 September 2010 (UTC)
Sorry, on second thought, I think that most of my arguments are specific to Wikipedia and not to Wikimedia Commons. For the Commons, I think all that is necessary is for each individual photo be marked with a fair use rationale that describes the permissible uses (such as using the photo in a Wikipedia article). I still can't understand the blanket deletion of the category; that implies that there are no fair uses of photographs of the statue, which I find ridiculous. Ketone16 (talk) 15:57, 12 September 2010 (UTC)
I am afraid that you have missed a significant point -- fair use is specific to each particular use, so it is indeed, as you say, perfectly possible to craft a fair use exemption for an encyclopedia. However, Commons is not an encyclopedia and has no specific use, so we do not ever use or accept a fair use rationale. That is hard and fast policy, see Commons:Fair use.     Jim . . . . Jameslwoodward (talk to me) 23:23, 12 September 2010 (UTC)
 Delete Your argument is compelling and I have altered my vote, although it is a pity to lose the category. One other voter has mentioned the fact that not all of the photos in this category are of the statue itself, but I think those photos could be safely moved to other categories. It doesn't quite make sense to me right now to have a category for the memorial if one can't include depictions of the memorial itself, although I would be willing to entertain counterarguments. I do not find the building exemption argument to be compelling. That line of argument was specifically rejected in Federal claims court (Gaylord v. The United States, 2008), which noted that the building exemption to the Architectural Works Copyright Protection Act (AWCPA) does not extend to "The Column" sculpture in the Korean War Veterans Memorial because "[t]he structures used in the definition of 'building' by the Copyright Office are intended to house individuals; either for the sake of providing shelter or for another purpose such as religious services."[5] The court also contended that had Congress intended to extend the AWCPA to monuments and memorials, the law would have been drafted to reflect that in the first place. My vote is conditional on the veracity of the assertions that 1) there is a valid copyright in place on the memorial and 2) "freedom of panorama" is not valid law in the United States, at least for sculptures. Ketone16 (talk) 21:17, 17 September 2010 (UTC)

 CommentThank you, Ketone16, for your research. Perhaps you could summarize it at Commons:Freedom_of_panorama#United_States for reference next time we have the "sculpture as building" argument. Unless somone raises a new, valid, objection, I am going to close this as follows:

  •  Keep Category:USMC War Memorial, leaving the de minimus and other OK images, together with a note that photographs of the monument itself cannot be hosted here.
  •  Delete All of the problematic images:

Jim . . . . Jameslwoodward (talk to me) 11:17, 19 September 2010 (UTC)

  •  Keep As mentioned earlier, there are pictures in this category that do not pose a copyright violation. Some are on this list above. Therefore, each picture in question should be tagged individually so arguments for or against keeping can be done on that image & preserved with that image for the future. These arguments should not be done here & I do not support removing all above files. Thanks! FieldMarine (talk) 12:58, 19 September 2010 (UTC)
I tried to be careful in selecting for deletion only those images that were clearly violations of copyright. All of those selected show the sculpture as the main subject of the photograph. Please list those in my list that you feel should be kept, with reasons. I see no reason to reopen this discussion on each individual image -- that just delays our obedience to the law and the rights of the sculptor.      Jim . . . . Jameslwoodward (talk to me) 23:53, 19 September 2010 (UTC)
The first two on the list and that is without going through each one. FieldMarine (talk) 00:26, 20 September 2010 (UTC)
Hmm. The first is a transcript of the remarks of Felix de Weldon, the sculptor, at the dedication. He was not then a Federal employee. The second is a letter from Admiral Raymond Spruance to his wife describing the photograph which is the basis of the sculpture. Although, as a Naval officer, Spruance was a Federal employee at the time of writing the letter, clearly a letter to his wife is not "a work prepared by an officer or employee of the U.S. government as part of that person's official duties". That would suggest that there is a valid copyright in both of these. However, on reflection, I note that they were uttered/published during the period when a copyright notice on the writing was required, so I suspect they are public domain as {{PD-US-no notice}}. Good catch, thank you.      Jim . . . . Jameslwoodward (talk to me) 01:43, 20 September 2010 (UTC)
That is why each image should be reviewed individually & I don't support mass deletion based on it being in a category. Even after careful selection on a list, there are still discussions on certain images, which should not be done here. These discussions should be done on the file's discussion page. Is there even precedence for mass deletions based on a category in commons? Thanks! FieldMarine (talk) 01:56, 20 September 2010 (UTC)
  • Let's be clear -- I don't like this any better than you do -- as Nard said in his nomination, we hate to do this. But take it up with your Congressional delegation -- Admins are here to enforce Commons policy and the laws of the various countries, even when we don't like the result.
  • There were seven such Category DRs in the last day's DRs I went through (Commons:Deletion_requests/2010/09/11) -- they are not at all unusual.
  • Deletion discussions should never take place on the file's discussion page because they will then be deleted with the file if the decision goes that way. They should always take place on a DR page, so that they are available for reference and precedent.
  • Mass deletions are preferred over individual discussions because the issues will be similar or overlapping, even if not identical. I think you'll find that all the rest of the images in the list above show the memorial itself, or parts of it, or the model of it (the same issue, legally) as a principal subject of the image. I think we have covered all the issues with them.      Jim . . . . Jameslwoodward (talk to me) 03:37, 20 September 2010 (UTC)
  • As for me, I’m not basing my argument about my likes. It’s about doing things right & mass deletions in this case is not right IMHO. I’ve already shown where some files in the list above do not fit the justification for deletion based on Commons:Freedom of panorama. That is why mass deletion does not work here.
  • Which are the seven categories you are talking about?
  • Also, please show me the commons policy stating that mass deletions of files in a category are preferred on the category’s discussion page over the discussion page for each file. I’m interested in reading that before I make further comment on the points above.

Thanks! FieldMarine (talk) 04:44, 20 September 2010 (UTC)

  • The seven are the seven category deletions in the list at Commons:Deletion_requests/2010/09/11 -- that's just one day -- I picked it only because I had just run though it and remembered the category deletions. I don't mean to say that a typical day's work has seven of them -- the two days before had none -- but that such DRs are not uncommon.
  • Perhaps we are not communicating -- You speak of "the category’s discussion page" and "the discussion page for each file" -- do you actually mean those pages or the DR page for each? I meant that a discussion at
  • File talk:XYZ is foolish versus a discussion at
  • Commons:Deletion requests/File XYZ because the former would be deleted with the file.

The question of whether to discuss deletion at

  • Commons:Deletion requests/File XYZ (and File WXY and VWX, etc.) versus
  • Commons:Deletion requests/Category:Containing XYZ, WXY, and VWX is not so clear, but in cases where there is essentially 100% overlap on the issues (as is the case now here) it seems strange not to combine them -- there are 27 separate images left here -- do you really want 27 separate discussions of the same issue? That is why we have Mass DRs and why Admins will routinely combine individual DRs if there is any significant discussion on the first one of a series.
  • As for formal policy on the issue, Commons has remarkably little formal policy -- in fact, we noticed recently that we didn't have a formal policy on creating formal policy. But, if you go through a couple of dozen days of DRs, you will see the pattern of combining individual requests into mass DRs -- it's hard to provide examples, because the daily lists of DRs are not static -- the closed items are deleted on a regular basis by a bot.

Jim . . . . Jameslwoodward (talk to me) 12:31, 20 September 2010 (UTC)

Has anyone found a valid renewal record? If this was put up in 1954, there should be a renewal in 1981 or 1982 or so. Searching online records, I do see renewals made for a couple of 1965 works by DeWeldon, but not this one. There are also two original registrations of sculptures of Marines raising the flag on Iwo Jima, but those were apparently separate works made in 1986 and 1993. There is a 1998 *registration* (not renewal) which lists six titles, one of which is "Iwo Jima war memorial", but that seems quite a stretch to be valid, as a 1998 initial registration for a work from 1954, which would have required a renewal 27/28 years after that. Carl Lindberg (talk) 13:27, 20 September 2010 (UTC)
How this can change things? Even if it wasn't renewed, the sculpture is a derivative from the photograph, and the photograph is still copyrighted. Trycatch (talk) 21:29, 20 September 2010 (UTC)
It could change things quite a bit, as I think it is very hard to argue that the sculpture is a derivative of the photograph. You could just as easily argue that it is "derivative" of the nearly-identical frame from Genaust's video shot right next to Rosenthal, which is public domain. Photographing something does not give someone rights over the scene itself, but rather *only* the expression specific to that photograph. Rosenthal did not arrange any elements of the scene, so he cannot claim any sort of authorship over the disposition of the soldiers, and that sort of thing. So you could look at his photograph and the video frame, and try to identify the expression specific to Rosenthal's photo which is not present in Genaust's. *That* is the only expression which is copyrighted... a very thin copyright in the first place, and it does not necessarily follow that the sculpture is a derivative (in copyright terms) of that. Just like taking a photograph of a person does not preclude a sculptor from using that photograph as the basis for a separate sculpture -- in most cases not a derivative work, but rather an original sculpture. Neither the copyright notice on the Iwo Jima statue nor the copyright registration mentions Rosenthal as having any sort of copyright interest in it; that would be required in the registration at the very least I believe if it truly was a derivative work. In short, I think the copyright on the statue is the *only* part relevant here. Carl Lindberg (talk) 00:57, 21 September 2010 (UTC)
I think it's a long stretch to argue that the memorial is not derivative of the Rosenthal photograph. Very few of us have seen the video -- almost all of us of that era have seen the photo. The history of the memorial makes it clear that it was based on the photo. There could have been a thousand photographers on scene taking PD images, but the only one that counts is the one that the sculptor actually used to create the sculpture and that is clearly the Rosenthal image.      Jim . . . . Jameslwoodward (talk to me) 12:05, 21 September 2010 (UTC)
I guess I didn't make my main point well enough -- "based on" does not mean "derivative work". To be a derivative work, you have to copy some expression seen in the original. There doesn't have to be a second photo at all; I was just trying to use that to illustrate just how little copyrightable expression is in the original photograph itself. Again, photographing something does not mean the photographer suddenly gains copyright over the object, or scene, photographed. The sculpture only uses the arrangement of the soldiers, their positions, etc. as seen in the photograph -- that is not expression created by the photographer, and does not make the sculpture a derivative work. In my mind, anyone is free to sculpt that scene. The expression in a photograph is the specific angle chosen, possibly the lighting, etc., i.e. items under the control of the photographer, and that is all. None of that is present in the sculpture, so I don't think it's a derivative work. While the photograph may still be copyrighted, I don't think it matters here. The amount of expression covered by that copyright is relatively thin, and you need to identify that exact expression in the sculpture to be a derivative work -- I don't see it here. The sculpture is merely recreating the scene seen in the photo, which to my mind is not something the photographer owns any copyright in. If someone photographs, say, a chair, someone can make a sculpture of that chair, and it would not be a derivative work of the photo. I don't see any difference here. Carl Lindberg (talk) 14:41, 21 September 2010 (UTC)

Sorry, but I don't think there is a really polite way to say this -- I think you miss the whole point. Your chair example is bad because it is too simple. Better examples are the many DRs here about drawings of people made from photographs. If the drawing is obviously a copy of the photo, it is deleted as a Derivative Work. The point here is that if the sculptor had been at the flag raising on Iwo Jima, then, of course, he would be free to make the sculpture without it being a DW. But he wasn't. He made the sculpture with the photo as his reference -- that is a classic example of DW. U.S. Copyright Act of 1976, Section 101:

"A 'derivative work' is a work based upon one or more pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted." [emphasis added]

The key words are "based upon". I don't think anyone can argue that the memorial is not based upon the Rosenthal photo. Indeed, it is as exact a copy as the sculptor could make.      Jim . . . . Jameslwoodward (talk to me) 15:18, 21 September 2010 (UTC)

Right, the copyrightable expression needs to be recast in another way for it to be a derivative work. It's certainly possible to make derivative works -- the original stamp would count. The photographed scene though is not copyrightable expression. The chair is really no different. If a drawing is obviously using some of the expression from the specific photograph -- the same angle, shadows, etc. -- then yes it is a derivative work. If a drawing is just using a photo as a guide for what the person looked like, then no, it is not a derivative work and such deletions were in error. The sculptor was not copying the photo itself; they were copying the photographed scene -- big difference. A derivative must be based on the copyrightable expression of an original, and I don't see any of the expression particular to that specific photograph left in the sculpture. The disposition and arrangement of the soldiers is not creative work attributable to Rosenthal, and that is the only part being copied as far as I can tell. Carl Lindberg (talk) 16:01, 21 September 2010 (UTC)
It's all reasonable, but I feel that your logic contradicts to the court logic in Rogers v. Koons (part "II Unauthorized Copying by Defendant" is relevant) -- there are both substantial similarity for an ordinary observer and direct evidence of copying. Of course, we are in much better situation that Koons, because copying is much less verbatim in USMC War Memorial, and Rosenthal had less control over the scene than Rogers. But anyway... Trycatch (talk) 16:27, 21 September 2010 (UTC)
Quoting directly from that case (I'm aware of it): Elements of originality in a photograph may include posing the subjects, lighting, angle, selection of film and camera, evoking the desired expression, and almost any other variant involved. See Burrow Giles, 111 U.S. at 60, 4 S.Ct. at 282. 1 Nimmer, § 2.08[E][1]. To the extent that these factors are involved, "Puppies" is the product of plaintiff's artistic creation. Rogers' inventive efforts in posing the group for the photograph, taking the picture, and printing "Puppies" suffices to meet the original work of art criteria. Thus, in terms of his unique expression of the subject matter captured in the photograph, plaintiff has established valid ownership of a copyright in an original work of art. That is a completely different situation, as Rogers posed and arranged the subjects, so at that point the arrangement is his authorship and part of the protected expression. None of those elements exist here -- Rosenthal had no creative control of the subjects or their actions; rather just the angle, selection of camera, that type of thing. All of which are not present in the sculpture, meaning no protected expression seems to have been copied. Carl Lindberg (talk) 16:40, 21 September 2010 (UTC)
The one thing missing from your list -- the essential thing -- is timing. The photograph caught an instant in time, just the right instant, when it was obvious both that a considerable effort was required and that they would ultimately succeed (as was true at that moment of the battle for Iwo Jima). Contrary to your assertion, he did pose the subjects, not by telling them what to do, but by catching the moment in their movement that was exactly right. And how, on your reasoning, do you explain the fact that a drawing made from a photograph is a DW, even if the subject is a landscape or an offhand candid of a person? The question is one of copying, not originality. Copyright is, after all, the right to copy, and that includes copying in other media than the original. No one questions that Weldon copied the photograph -- indeed, his skill at doing it is the genius in the work.      Jim . . . . Jameslwoodward (talk to me) 17:47, 21 September 2010 (UTC)
Of course the question is originality -- if not an original work of authorship, there is no copyright, and there is no copyright violation when copying. You can only have a violation when copying authored expression; if only copying non-copyrightable aspects, then there is no problem. That is the very basic (U.S.) definition of copyright. Timing... no, not really. Are you saying the videographer next to him violated a copyright by copying the timing? The photograph caught the moment in an electric way -- that is certainly what makes a great photograph, but actually has zero relevance when it comes to copyright. An ugly, mistimed photograph is every bit as copyrightable as that photo; the author's expression would be the same. That was admittedly kind of a hard, unexpected concept to get my head around, but the Copyright Office repeats it over and over in their decisions -- they ignore aesthetic appeal, symbolic value, visual effect or impact, and success in the marketplace when determining what is copyrightable. An ugly, worthless photograph is every bit as copyrightable as a great one -- and by the same token, being a great photograph does not mean that the photographer gains any extra copyright over what they would normally have. Their Copyright Compendium makes the point that a child's scribble is still expression attributable to the author, so is every bit as copyrightable as a famous work of art. In this case, no, Rosenthal absolutely did not pose the subjects; in fact he spent 50 years explaining to everyone he that he didn't, to try to dispel that silly rumor. He caught the scene yes, but he did not author it. He authored the photograph -- he picked his angle, and he picked the framing, and he ended up having a great moment to take it (as did someone else standing right beside him). The elements of that specific photograph attributable to him -- the angle and the framing -- are his authorship, and what he can claim copyright on (and you can generally tell, looking at at 2D work, if it is derivative of his photo or not). The visual impact which makes it a stupendous photograph -- actually does not add to its copyrightability. The videographer next to him, capturing the same scene, has a completely separate work of authorship as well, and is not derivative in any way to Rosenthal's photograph. Only the expression specific to Rosenthal's photograph is copyrightable by him. Yes, the sculptor used Rosenthal's photograph (and not the video) -- but that is only one part of being a derivative work; you then have to identify the actual bits of authorship which were copied, and I don't think there are any here. Capturing a similar visual impact is a testament to skill -- but again, that is not inherently copyrightable. The sculptor gets copyright on the specific contours etc. that he made (which is of course basically the entire statue). Someone else can make a sculpture based on the photograph, they have their own original work which is not a derivative of De Weldon's -- and if they capture the same visual impact, good for them, it's a better sculpture and a much more valuable work. If they do it by copying De Weldon's sculpture directly instead, that is a vastly different situation (unless of course the sculpture is PD).
As for other points... a drawing made from a photograph *may* be a derivative work, or may not. If the drawing copies the same angle, framing, shadows, etc. in the original photograph -- then yes, they are copying the photographer's expression and it is a derivative work. If they are using the photograph as a general guide as to what a subject looks like, and come up with a drawing which uses a different angle, framing, etc., then it would not be a derivative work -- no expression was copied, only factual information. It all depends on the specifics of the situation. The same goes for a picture of a landscape -- there are certainly ways you can make derivative works, but also ways where elements in the photograph are used in ways which are not derivative. Two people standing next to each other taking the same exact landscape have two completely separate works, no matter how similar they appear -- to be a derivative work, you'd have to copy expression specific to one of those photographs. That is an example of a very thin copyright, probably limited to straight copying of the photograph itself (which doesn't lessen the penalty if it is done though). Similarly, if a photograph like that becomes famous, anyone else can try to take the same photograph from the same vantage point -- they are using the same idea, but are ending up with their own expression of that idea, and their own separate copyrightable work. (The Rogers photograph is a different situation -- he has definite authorship in the poses as well, so setting up a similar photograph with a similar pose would most likely be considered a derivative work, which is what Koons fell afoul of.) While not directly relevant to U.S. law, a somewhat similar situation can be found in Finland, where they distinguish between photographic "works" (where protection lasts for life plus 70 years, like other works) and simple pictures, where protection doesn't last nearly as long (50 years from creation). As a canonical example, the legislators gave File:Paavo Nurmi sytyttää olympiatulen 1952.jpg as an example of what a simple picture is, and not a "work" -- that is actually a very famous photograph there, I think almost as iconic as the Iwo Jima photo is to Americans; it is a great capture and a terrific photograph but that still doesn't make it a "work". (The Rogers photograph, on the other hand, would be a "work" there I'd think.) Carl Lindberg (talk) 06:17, 22 September 2010 (UTC)

Of course each work has its own copyright. If twenty press photographers shoot at the same moment, each of their works has a separate copyright. And, of course, artistic merit is not required (despite what some of our colleagues will argue in FOP cases). The essential thing is the copying. If, as I said above, Weldon was standing beside Rosenthal, then there would be no issue. But he wasn't -- he copied Rosenthal.

Look again at the quote from the U.S. Copyright Act of 1976, Section 101, above -- all that is required is that the new work be "based upon one or more pre-existing works". The wording is very broad and has no requirement that anything specific is copied. Nothing else matters -- all of us will agree that the U.S.M.C. Memorial is "based upon" the Rosenthal photo. End of argument.     Jim . . . . Jameslwoodward (talk to me) 11:34, 22 September 2010 (UTC)

No. It has to be based on a work, i.e. an original work of authorship. You have to copy the protected expression for there to be a problem. A photographer does not gain copyright over objects which are photographed, even if they did happen to be the only person to see it -- that is not authorship. For example (this is an old DR here actually), say there is a copyrighted photograph of an ancient coin. If someone makes a drawing of the design seen on that coin using that photograph (but is otherwise unrelated to that photograph; not using the same angle or anything else), that drawing is not a derivative work of the photo. The photographer does not own the copyright on the coin design, so the drawing is fine -- none of the copyrightable aspects of the photo (i.e. the work itself) were being copied. Your argument is basically that since the drawer did not actually see the coin, the photographer is then entitled to a copyright on the coin design as well. Not true... copyright itself only exists in original works of authorship also per section 101. The coin design is not an original work of authorship of the photographer, thus the drawing is not based on the work of the photographer, and therefore there is no issue. If the coin was a newer one, and the coin design itself was protected, then the drawing (as well as the photo) would be a derivative work of that coin design, even though it was not a derivative work of the documenting photograph itself. Rosenthal's work does not encompass the scene itself -- he documented it, but did not author it, and it is not part of his "work". I don't see that the statue is based on his "work", which is explicitly stated in the definition of derivative work in section 101. Carl Lindberg (talk) 15:02, 22 September 2010 (UTC)
  •  Keep per Carl Lindberg. The photograph wasn't posed, it was a sort of public event, three different photographers documented it (compare the photograph and this frame from the video), how a single photographer can claim copyright on these marines? Take Zapruder film, for example, it's copyrighted, but you hardly can claim copyright on the JFK assassination itself. And what about NIST models of 9/11 based on copyrighted photographs and video? Felix de Weldon used the Rosenthal photograph, but he also used multiple other sources to recreate the event. Copying from the Rosenthal photograph was far from verbatim, just compare frontal view of the sculpture and the photograph -- poses and positions of the marines (and the flag) are completely different. Weldon was inspired by the photograph, and then created his own original artistic interpretation of the event. Trycatch (talk) 13:11, 22 September 2010 (UTC)

So, you're both saying that a drawing based on a candid -- unposed -- photograph of a person is not a DW because there is no originality in the photo to be copied? That's inconsistent with many DR results here and, I believe, inconsistent with the law. I'd like to see case law on the issue, not just an unnamed DR, particularly since a coin (like your earlier chair) is static, and this image was of a dynamic event.

Again, I'm not suggesting for a minute that Rosenthal has a monopoly on the event -- only that a sculpture that is acknowledged to be based on his photograph is a DW, just as a movie, however different, that is based on a book is a DW of the book. And, by the way, the fact that Weldon used more sources is not relevant -- the law reads "based upon one or more".      Jim . . . . Jameslwoodward (talk to me) 17:06, 23 September 2010 (UTC)

Not... quite. Everything depends on the specific circumstances of the photo and the drawing. From the definition... A 'derivative work' is a work based upon one or more pre-existing works (different emphasis this time). It must be based on another author's original work of authorship to be a (copyright-speaking) derivative work. With something like a painting, or a book, that is usually 100% of the material, so just about anything based on that is a derivative work. With a photograph... the photographer is not necessarily the author of everything you see in the photograph. Sort of like every square is a rectangle, but not every rectangle is a square... a derivative work is by definition always based on another work, but not everything based on a photo is necessarily a derivative work. As the quoted section from the Rogers vs Koons case above states, only certain aspects of a photo are under the photographer's control, and those are the aspects which constitute the photographer's work, so a drawing would have to include those aspects to be a derivative work of the photographer's authorship. This is far more likely in 2D drawings, but is not a 100% given. For one example, for the author of that Barack Obama "Hope" poster currently in a copyright case with AP, I don't think it will end well for the artist -- the poster copies the exact perspective from the photograph, one of the elements of the photographer's authorship. Fair use is really the only argument there, and that seems like a longshot to me, but we'll see. On the other hand, if an artist just uses photographs of a person as a reference for what they look like, but come up with their own pose and angle, that would not be a derivative work of the photographs -- the photographer does not author what a person looks like. I also don't think a photographer of a snapshot gains copyright over the scene photographed -- that is not their creation, but rather it was public information which he (and others) captured. The 1945 stamp made from the photograph -- that is a derivative work. The statue... to me, only uses the depicted scene itself, and no element from the photo which would constitute Rosenthal's work, so I don't think it's a derivative of the photo.
As for the old DR, I finally found it here. This article also goes over some of the issues. From the Copyright Compendium: To be entitled to copyright registration, a photograph, hologram, or slide must contain at least a certain minimum amount of original expression. Generally, original photographic or holographic authorship depends on the variety and number of the elements involved in the composition of the photograph or hologram. However, the nature of the thing depicted or the subject of the photograph or hologram, as distinguished from its composition or arrangement, is not regarded as a copyrightable element. Original photographic composition capable of supporting registration may include such elements as time and light exposure, camera angle or perspective achieved, deployment of light and shadow from natural or artificial light sources, and the arrangement or disposition of persons, scenery, or other subjects depicted in the photograph. To me, all the protectable elements of the photograph are not included in the sculpture. If the photographer had control over the arrangement or disposition of the subjects, that would be different. But as a 3D work, the perspective and framing are not included, nor are specifics of lighting, and that sort of thing. Carl Lindberg (talk) 16:21, 24 September 2010 (UTC)
Perspective (angle) may be included, because the memorial has its front. Totally -- Felix de Weldon used timing and perspective by Rosenthal. Trycatch (talk) 16:44, 24 September 2010 (UTC)
That is not inherent in the 3D sculpture, I don't think. Not the specific angle from the photograph, necessarily. Just as easy to argue it is the perspective of the video. If you are recreating a photographed scene in full 3D, you are obviously going to have an angle which will look similar to the photograph. Carl Lindberg (talk) 16:55, 24 September 2010 (UTC)

For all this, I haven't been able to find a copyright renewal on the photograph either from the records online here. It would have to be renewed in 1972 or 1973, but I don't see it at all in the visual arts (which includes photographs) renewals section. I can't find any renewals by Associated Press at all, actually, nor Rosenthal (though I doubt he'd have the rights). Perhaps it was renewed as part of another work, but what would that be? Carl Lindberg (talk) 16:55, 24 September 2010 (UTC)

Kept. This is a difficult case, but here are several factors to consider: 1. copyright on the sculpture itself was not renewed, so it's in the public domain; 2. no one has produced renewal records for Rosenthal's photo, so we have reason to suspect it is in the public domain (AP's zealous enforcement may amount to copyfraud); 3. Rosenthal's creative additions to the scene, as compared to the public domain video, are primarily in timing and postprocessing, not in composition, and are quite small. Undoubtedly he brought the event to the attention of the sculptor, but little in the sculpture could be uniquely attributed to Rosenthal's creative expression, while much in the sculpture could be attributed to the sculptor's original expression. 4. AP has not at any point sought royalties from the U.S. Government for their extensive ongoing exhibition of this work, despite normally being quite zealous about copyright enforcement; this tends to indicate that they don't believe such royalties would be enforcable. On the other hand, it's clear that the sculpture is not a building and case law has firmly rejected this interpretation. Dcoetzee (talk) 23:58, 31 October 2010 (UTC)

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