Image talk:Pele HVO.JPG

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[edit] Image: Pele HVO

It appears you uploaded a photograph you took, Image:Pele_HVO.JPG, to illustrate the Pele (deity) article. It is a beautiful picture and makes the article look very nice. However, I am concerned about a possible copyright infringement. We need permission from the copyright holder of the painting you photographed. The page MediaWiki:Uploadtext/en-ownwork says "The act of scanning or photocopying someone else's work is not considered to be "creative"".--Ishi Gustaedr (talk) 00:17, 25 May 2008 (UTC)

Lovely illustration, I agree. WP:COPYREQ may be helpful, as well. Walter Siegmund (talk) 05:19, 25 May 2008 (UTC)
My reply: The image hangs in the Volcano National Park Visitor's Center and is public property. Copyright is eligible since it is government property. --Paradiver (talk) 07:39:47 2008-05-26
Paradiver, in a reply on my talk page, you said "The image hangs in the Volcano National Park Visitor's Center and is public property. Copyright is eligible since it is government property." I'm pretty sure that being government property doesn't put it in the public domain. If the work had been created by the government, that would be different. For example, the Smithsonian owns a lot of artwork, but I don't think it's all in the public domain. Do we know who the artist was and if it was created as part of a government contract or something? Honestly, I am no expert in these matters, I just want to make sure we tread carefully in this area. I can see if I can find a Wikipedia admin who understands copyright to help us out. Also, we can contact the National Park Visitor's Center as Walter Siegmund suggested above by pointing to WP:COPYREQ. I'm more than happy to assist, if you would like.--Ishi Gustaedr (talk) 01:38, 27 May 2008 (UTC)
First I correct my last: I meant that the Government cannot claim copyright since it is pubic property thereby public domain. Second, copyright may even still exist but in most cases unlikely because the commissioned art work was in come cases a work for the Government or may have even be donated to the Government. Whatever the case the law is clear if the work was done by an employee: "§ 105. Subject matter of copyright: United States Government works Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise." Source Title 17, of the United States Code. Copyright Law
No copyright claim is present at the site nor is it a lended picture on display. It is presently property of the US Government, which makes it public property or public domain.
In addition fair use can be claimed since the inclusion of the photo is for a teaching purpose; hence the facts that Wikipedia is an virtual educational encyclopedia and is non-commercial because it is free. —Preceding unsigned comment added by Paradiver (talk • contribs) 01:17, 30 May 2008 (UTC)
1) You said: "Government cannot claim copyright since it is public property thereby public domain." Well, that's the question, isn't it? Is the work in the public domain or isn't it? If it is, then you're right -- no one can claim copyright. But we need to establish who owns the copyright to the painting, if anyone does.
2) Next you said: "Second, copyright may even still exist but in most cases unlikely because the commissioned art work was in some cases a work for the government or may have even been donated to the government." What we need are some facts -- "may even", "most cases unlikely", "some cases", "or may have even been" -- that all sounds like guessing.
3) Next you said "the case the law is clear if the work was done by an employee". Yes, it is clear. Are you saying you know that the work done by an employee and done for the government? If so, then again you would be right.
4) Next you quote some copyright law that says copyright is not available for "any work of the United States Government". That's true, but we don't know the painting was done for the government.
5) Next you say "no copyright claim is present at the site". It doesn't have to be. If someone has the copyright, displaying it without a copyright notice doesn't invalidate the copyright.
6) Next you say "nor is it a lended picture on display". How do you know that?
7) Next you say "It is presently property of the US Government, which makes it public property or public domain." That's not true. The government can own property that isn't in the public domain. The second part of the copyright law you quoted even says that: "the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise".
8) In your final statement about fair use, it sounds like you think any image can be used on Wikipedia because it is "an virtual educational encyclopedia and is non-commercial because it is free." We also know that is not true. There are very clear policies about the use of images.
Clearly, the easiest thing would be if we can get an answer from the Hawai‘i Volcanoes National Park about the copyright status of the painting in question. I'll see if I can contact them. As I said, it's a great picture and I totally want us to use it if we can. I'm sorry for being so persistent about this and please don't be discouraged. Hopefully I'll be able to get some information from HVNP. --Ishi Gustaedr (talk) 02:18, 30 May 2008 (UTC)
I got a reply from the National Park Service. The artist is Arthur Johnsen and his website is www.arthurjohnsen.com. The painting is displayed on his homepage with a copyright notice. I will mark this image for speedy deletion. --Ishi Gustaedr (talk) 20:36, 30 May 2008 (UTC)
I take it we are going to argue this back & forth. As you see from the painter's website it WAS A COMMISSIONED WORK BY THE VOLCANO NATIONAL PARK: "In 2003 the Volcanoes National Park, with the sponsorship of the Mountain Institute and a judging panel of highly respected kupuna (Hawaiian elders, teachers and leaders), held a competition to see which artist in Hawai’i could paint the best new version of the Goddess Pele. So now my painting of the ancestral deity hangs permanently at the visitors’ center in the park!" http://www.arthurjohnsen.com/about
Plus it is a permanent which now brings it under the ownership of VNP. I bet if you try to take it you'd get charged with the federal crime if theft of government property. —Preceding unsigned comment added by Paradiver (talk • contribs) 02:12, 31 May 2008 (UTC)
No, we aren't going to argue back and forth. The admins will make a decision. (1) "The Volcanoes National Park... held a competition" -- that does not mean it was a commissioned work. (2) He is clearly asserting the copyright on his web page. (3) "Hanging permamently" does not imply ownership -- it could be on permament loan. (4) Even if it were owned, ownership of the painting does not imply ownership of the copyright. I should think it would depend on the sale agreement. In any event, it is clear from his web site that he is asserting his copyright on his painting. I don't understand why you can't accept that. --Ishi Gustaedr (talk) 02:50, 31 May 2008 (UTC)

[edit] Administrator's reply

Based on the link to the artist's webpage, it is very clear that the artist owns and asserts copyright on the painting. Accordingly, I have stripped the commons licensing tags from the page and replaced it with {{Non-free 2D art}}. The alternative would be to delete the image under criterion I3, clearly invalid license, but I did not feel that was the correct alternative here.

I do think that because of how and where the image is presented, a fair use rationale can be made to use the painting. The only issue I have is whether or not the image is replaceable - i.e., is there a fully free image that can be used in this one's stead? If a free image is available of Pele, we should use that image in the article. However, if no free image is available, then a case can be made that this is the best non-free image because it is exhibited at Volcanoes National Park.

(Procedural notes: please keep all discussion on this issue on this talk page, which I'm watching. Please do not spread it across multiple user talk pages. Additionally, A very strong case has been presented of why, in my adminly opinion, this image is non-free. Revert-warring over the license tag without discussion here will subject the image to immediate deletion under the invalid license tag. I hate to have to say all this, but I just want to make sure it's been said beforehand.) —C.Fred (talk) 14:13, 31 May 2008 (UTC)

I have also added a rationale to the image. Feel free to discuss if you think there's an issue with the rationale. —C.Fred (talk) 14:25, 31 May 2008 (UTC)

Thank you for taking the time to look at this. The license change and your reasoning for fair use makes sense to me. While there are surely free images available somewhere (illustrations from books with expired copyrights, for example), until we secure one, this image will do. --Ishi Gustaedr (talk) 15:13, 31 May 2008 (UTC)