Wikipedia:Possibly unfree images/2007 July 1

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[edit] Personality Photos

• Image:GABLE01.jpg, Image:NATCOLE01.jpg Image:ARMST01.jpg, Image:JDEAN1.jpg, Image:MMONROE1.jpg, Image:BOGART01.jpg, Image:TAYLORF2.jpg, Image:CAGNEY01.jpg, Image:JCAGNEY2.jpg, Image:Lucy10.jpg, Image:Lucy7.jpg, Image:FSINATRA1.jpg, Image:FSINATR2.jpg, Image:FSINATR4.jpg, Image:JLENN01.jpg, Image:PMCCTY1.jpg, Image:MRSIL01.jpg, Image:MRSIL02.jpg, Image:OZ-07.jpg, Image:BONZACAST.jpg, Image:Image-103B.jpg, Image:MMONROE2.jpg, Image:UNCLE.jpg, Image:CANGELS.jpg, Image:BARRYM.jpg, and Image:MCNVY.jpg— All these images were uploaded with the licensing given as under Creative Commons. Most seem to be publicity photos that would likely still be the property of the photographers and/or studios they were made for, there are a couple of baby pictures that may be in the public domain. While Fair Use may apply to some of these images, the uploader's assertion of ownership by licensing under the Creative Commons seems unlikely even though they come from a gallery website he runs. —Elipongo (Talk contribs) 03:51, 1 July 2007 (UTC)
  • The Howard Frank Archives has been in business for over thirty years as an image archive and supplier of images to major publications and other media outlets. We have aproximately 1 million images in our inventory. Mostly in the entretainment industry. The bulk of the collection was at one time the property of Louis "doc" Shurr, Mr. Howard Frank's cousin and a respected Hollywood agent whose clients included, Bob Hope, Kim Novak, Ginger Rogers, Burt Lahr, Betty Grable, Debbie Reynolds, George Murphy, Andy Devine, Broderick Crawford, Larry Hagman, Barbara Eden among many others.

  We have been major contributors of images to major books on Hollywood personalities. Including:

  Lucy : A Life in Pictures by Tim Frew and Howard Frank Archives/Personality Photos Staff

  Dreaming of Jeannie: TV's Prime Time in a Bottle by Stephen Cox and Howard Frank

  Ball of Fire, Lucille Ball By Stefan Kanfer

  Loving Lucy By Bart Andrews and Thomas Watson

  Lucy & Desi By Warren G. Harris

  The "I LOve Lucy" Book By Bart Andrews

  Elvis, A life in pictures By Tim Frew

  Lucille: The Life of Lucille Ball By Kathleen Brady

  The Century By Peter Jennings and Tom Brewster

  You can do a search on Google, Amazon.com or Barnes and Noble to confirm our claims.

  And many many other publications and magazines. Our clients include all major television networks such as CBS, ABC, NBC, E Entretainment, E!, PBS and others. Major publications such as TV Guide, People, US, Time Magazine, Newsweek, Globe, The enquirer, Reader's Digest, The New York Times, The Wall Street Journal, Harvard Medical Journal, Scientific American, Ladies Home Journal and many others too numerous to mention here. We have never had our right to rent or use these images disputed. As with any large inventory such as ours, it is possible that we may inadvertently by accident have posted an image to which someone may claim intellectual property rights. In such cases we will be more than willing to comply in removing such an image provided the standard provisions are met as stated below by contacting our intellectual property rights department

  Anyone who believes that their intellectual property rights have been infringed, must provide our Intellectual Property Rights Agent with a notification that contains the following information:

  1. A physical signature of a person authorized to act on behalf of the owner of the copyright or other rights that have been allegedly infringed.

  2. Identification of the copyright, trademark or other rights that have been allegedly infringed.

  3. The URL or product number(s).

  4. Your name, address, telephone number and email address.

  5. A statement that you have a good-faith belief that use of the material in the manner complained of is not authorized by the rights owner, its agent or the law.

  6. A statement that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of the copyright or other right that is allegedly infringed.

  You may reach our Intellectual Property Rights Agent, via email at sales@personalityphotos.com --PersonalityPhotos 06:20, 1 July 2007 (UTC)

  • • Thank you very much for your detailed reply and also thank you for helping us to improve Wikipedia. This case will likely need people better versed in these things than I, but as I understand it the issue is not that of disputing your renting or using the images, but rather that you've uploaded the images onto Wikipedia's servers and have released them under Creative Commons licenses. Since only the owner of the copyright can assign the license, you are asserting that you are yourself the copyright holder of these images- including a couple of images that seem could actually be in the public domain. Wikipedia has no interest in you removing images from your collection, but now that they are on Wikipedia's servers, Wikipedia has liability if a copyright holder should protest their being released under a free license. Wikipedia needs to be assured that you indeed hold the rights to these images. There is a method using the Wikipedia:OTRS by which you can forward your documentation to the foundation, but as I am not familiar with it, I will leave it to one of the others who regularly edit this page to help you with that. Thank you again for helping out and for your note. —Elipongo (Talk

contribs) 07:23, 1 July 2007 (UTC)



Reply to the above by Elipongo

• • • Since only the owner of the copyright can assign the license, you are asserting that you are yourself the copyright holder of these images- including a couple of images that seem could actually be in the public domain.
      Our images come in several categories. We have the negatives to most of the images in our inventory. In other cases we have the "Master Negatives" or in the case of other images the in-camera chromes from which they are printed. In some cases we have the only known original prints of the images. Until 1990 most studios discarded rather than archived massive amounts of imgaes literaly in the garbage. Thus most images taken during that period are lost to history except in cases where collectors like howard Frank through family contacts and friends acquired many of them. Being that we have the onl;y images in many of these cases we do claim copyright ownership of them. We have selectively uploaded imgaes of which we are sure of the provenance.
      

• • • Wikipedia has no interest in you removing images from your collection, but now that they are on Wikipedia's servers, Wikipedia has liability if a copyright holder should protest their being released under a free license.
      Wikipedia has no liabilty since they are neither the owners nor the source of the images, we are. We have a procedure as does Corbis or Getty for settling claims to Intelectual property claims as stipulated in my previous post.
      

• • • Wikipedia needs to be assured that you indeed hold the rights to these images.
      That does not present a problem, we can issue a standard open ended release of our images to Wikipedia as we do to television broadcasters, publications and other entities that use our images. They can keep it on file and forward copies to whoever "claims" to be the copyright holder of the image. All we need is an e-mail address where to send a signed PDF document release. Be aware that claiming to be the copyright holder and actually posessing such rights are two distinct things. Corporate lawyers will often issue threatening letters claiming intelectual property rights. They mainly do this to discourage legitimate use of images in an editorial or fair use context and in order to attempt to control the editorial context in which these images appear.. That is why we require as do the courts extensive documentation to back up such claims. After thirty plus years in this business we have yet to appear in court to dispute any of our images.--PersonalityPhotos 04:17, 2 July 2007 (UTC)

No release of the images to Wikipedia is necessary. At this point, there's no reason to believe that you don't have the authority to release the image to the public under a CC-BY license, for which we thank you for your generosity. However, I just want to confirm that you are aware that this allows anybody anywhere in the world to use the photos now for any purpose, including commercial redistribution and derivative works. If this is unacceptable to you, please let us know and we will have the images deleted. howcheng {chat} 21:52, 2 July 2007 (UTC)

We are well aware of the stipulations. Most of our business is suplying high resolution versions of our images 400 dpi and above, a far higher quality that is rrequired by commercial users of our images, than what we are contributing to Wikipedia. There is a growing market in low res images for internet use, but we feel contributing a couple of hundred images to Wikipedia is not going to effect our bottom line. Bottom line, we aren't worried about it. As to the issue of commercial distribution, that falls into an entire other area outside of copyright law. The images may of course be used in an editorial context if attibution to source is made as per our condition. Commercial use is beyond our scope since images of well known personalitities for commercial products require in addtion to copyright permission a license which can only be issued by the heirs of the estates of such persons or their authorized representatives. In other words, we may own the images and rights to them, to use them commercially however, requires the permission of the estates of the people appearing in the images. That is beyond our ability or authority to do. As for derivative works, basically the same rules apply. They can use the images any way they see fit as long as they cite the source. At such low resolution as we are supplying, to be quite frank, their use is generally limited to the internet in editorial contexts such as this. One thing that does come to mind is, will we have to go through this every time we upload additional images? Or is there a way to avoid this in the future. There are a lot of articles in which we feel we could enahnce the article by contributing images to them. --PersonalityPhotos 01:52, 3 July 2007 (UTC)

That requirement is in direct violation of the reuse requirement of the GFDL license. Corvus cornix 02:04, 3 July 2007 (UTC)

Please clarify as to what you are referring to. I was simply pointing out in the above that commercial use of our images in which appears a personality living or dead that has an estate that claims patent or trademark rights is beyond our authority to grant. Anyone can use the images any way they want in an editorial context. Images in which no recognizable persons appear are free to be used in any manner whatsoever. As an example, an image of Lucille Ball may be used editorially in any manner and we grant copyright rights to do so. I am simply pointing out however, that someone using an image of Lucille Ball in a commercial context besides having copyright authority which we grant in free use, must also obtain a license from the Lucille Ball estate to use a likeness of her commercially. That is patent and trademark law and has nothing to do with copyright. We cannot grant rights to commercial use which we do not have. By the same token, if the Lucille Ball estate wanted to use one of our images (other than what we uploaded to wikipedia) they would have to come to us to use the image insofar as copyright license were need (something they have done in the past incidentally). In other words, we can only grant copyright rights alone. Commercial issues are another matter that have nothing to do with copyright law. We cannot grant rights to commercial use of images in which the likeness of a person appears as that is not a right that any copyright holder of any image possesses. In a recent supreme court decision regarding the Marilyn Monroe estate, they were claiming rights to the use of images outside of a commercial context. They rightly lost that case, but if you still want to use the image of Marilyn Monroe to sell toothpaste or use her image on lunch-boxes, you still need to obtain a license from her estate. It is a patent and trademark issue, NOT a copyright issue.--PersonalityPhotos 03:46, 3 July 2007 (UTC)

To reply to your earlier question, IMO the best way to avoid these types of issues in the future would be to create a page in http://www.personalityphotos.com/wikipedia/ (for example http://www.personalityphotos.com/wikipedia/license.html) stating that images in that directory are released under the CC-BY license; you could also include the appropriate information regarding the patent and trademark issues there. You could have your legal people write the appropriate release and such to avoid any doubt. Then link to this page as part of the image description page for each image you upload, and there should be no more problems.

As for the trademark issues, does {{trademark}} adequately state the situation? If so, simply include that template just after the {{cc-by-2.5}} template for the images to which the trademark issue applies; you could also include a hidden note such as <!-- The pictured personality or their estate maintains trademark rights over their image. --> with the template to help ensure that other Wikipedia editors don't mistakenly remove the trademark template. I'm interested in hearing more about the patent issues here, I never thought a picture could be patented (just trademarked and/or copyrighted). Anomie 12:31, 3 July 2007 (UTC)

Wikipedia is reproducible. Anybody can pick it up and use it for whatever purposes they want, commercial or not, so long as they abide by the GFDL requirements that they explain where they got the material from. This means that these images could be used for commercial purposes without compensation, and therefore your limitation against commercial use violates Wikipedia's reuse requirement. Corvus cornix 16:40, 3 July 2007 (UTC)

I think you're misunderstanding PersonalityPhotos's statement. Even with an appropriate copyright license, trademark law may affect how a particular image may be used. This normally comes up in the context of logos, as many logos are ineligible for copyright in the US (where Wikipedia is located) but are still trademarked. PersonalityPhotos is not even claiming they have the trademark rights in these images, BTW, so it isn't even their restriction. Also, note that while textual contributions to Wikipedia are all under the GFDL, there is no requirement that images be under that license. Anomie 18:28, 3 July 2007 (UTC)

I am quite satisfied with PersonalityPhotos' excellent explanation and I think that Anomie's proposal for the attribution of these images is a good one— that way PersonalityPhotos shouldn't have to go through this rigaramole again. —Elipongo (Talk contribs) 02:17, 4 July 2007 (UTC)

Just thought I'd add that these images would be of even more benefit to the entire project if they were uploaded to Wikimedia Commons instead of here. We'd just have to make sure they know what's up so we don't have to go through this whole discussion again. —Elipongo (Talk contribs) 14:47, 4 July 2007 (UTC)

An OTRS ticket would help. -N 15:18, 4 July 2007 (UTC)

Thank you all for your suggestions, I will try to get things set up this weekend on our website in the wikipedia directory as per Anomies suggestion so people understand the limitations on using some of the images commercially. I will message some of you with some questions on particulars on how we can set some of these things up. Curious as to what an OTRS ticket is. I may also need some help with the formatting and possibly in designing some template.Patent was not a good word to use, I only brought it up because someone mentioned GFDL license which is more appropriate for items such as software, use of photos commercially fall more into patent and intellectual property law. --PersonalityPhotos 04:38, 6 July 2007 (UTC)

Information about Wikipedias Open-source Ticket Request System (OTRS): Wikipedia:OTRS -- Algotr 20:34, 10 July 2007 (UTC)

(unindent)So... it's been fourteen days now and if I'm not mistaken the consensus is that they're all okay. Should I remove the tags from the image pages and the article captions myself or is someone else supposed to do that? Should a link to this discussion be included so that we don't repeat this? —Elipongo (Talk contribs) 04:25, 15 July 2007 (UTC)

Nevermind, I just saw the blurb at the top of the page. —Elipongo (Talk contribs) 04:27, 15 July 2007 (UTC)

Ok we are ready to include a page on our site in the wikipedia directory as per suggestions in the above discussion. I have no clue as to how to proceed next so a headsup would be welcome.--PersonalityPhotos 19:59, 15 July 2007 (UTC)

Has anyone replied to PersonalityPhotos' request for help here yet? —Elipongo (Talk contribs) 20:56, 16 July 2007 (UTC)

Do we have to say 'Frank Howard archives' in the image caption on the article page? Despite being already described on the image page. Gareth E Kegg 20:40, 17 July 2007 (UTC)

This is to alert you that the matter was discussed on the Administrators noticeboard and we think the copyright status is unclear to problematic. Please review the discussion there. The best suggestion seems to be to run these by the Wikimedia Foundation general counsel. For one or two images it would not be worthwhile, but for a large group of valuable additions to Wikipedia, best to have a definitive decision. Wikidemo 21:00, 18 July 2007 (UTC)

Should the photos be tagged as copywritten, but with a special category stating it is a publicity/press photo and must be properly cited, presumably both in the upload and the article? Andyross 15:20, 12 August 2007 (UTC)

We have added the following to our wikipedia directory as per suggestions from a number of other users.

http://www.personalityphotos.com/wikipedia/license.html

we still need to resolve how this will be tagged to images in dispute and who would do that. Obvioulsy because of a conflict of interest we cannot do so ourselves.

I apologize in the delay of the reply, but we were involved in a number of other projects which consumed our time.

PersonalityPhotos 05:53, 26 August 2007 (UTC)

Is there anyone paying attention to this thread? What is the status of this discussion? Is there a debate going on somewhere else regarding the images? Someone plese let me know what is going on.... --PersonalityPhotos 18:26, 5 September 2007 (UTC)

CHANGE OF USER NAME

Just a short notice that username PersonalityPhotos had to change the user name to Cacique. If anyone is monitoring this discussion as to a resolution of the issues, please be aware of the username change as per request of wikipedia moderators.--Cacique 20:34, 18 September 2007 (UTC)

If the copyrights weren't renewed, wouldn't most of these have slipped into the public domain? Ed Wood's Wig 21:34, 13 November 2007 (UTC)

(Copy my related comment from commons) I just trawled Getty looking for the above image (the John and Yoko image) and couldn't find it. But I did manage to find (the third image I looked for) a James Dean photo that the two image sources have in common Getty Images number 3470948 - personality photos image #38 [1]. Getty credits "The Hulton Archive" see [2]. The problem I had and still have with the images is as follows: The original photographer is not identified nor is the date of the photograph. It's basically impossible for us to verify if the copyright of the images is actually in the possession of the archive. Exceptional claims require exceptional evidence, and either the "Hulton archive" or "PersonalityPhotos" are full of it. I've got to say - if in doubt don't upload. Once these images are tagged as cc-by here, it's a can of worms that we will have difficulty closing. We should politely decline these images because it's impossible to verify that the donating party has the rights to grant them under the license in question. Megapixie (talk) 12:55, 17 December 2007 (UTC)

[edit] These images are starting to slip into Commons

So far, I know of Image:GABLE01.jpg and Image:John Lennon Yoko Ono.jpg. There are probably more; it's hard to know because the filenames should have been changed like they did with Image:JLENN01.jpg. As you know, Commons has no fair use unlike Wikipedia. This copyright issue needs to be resolved.

The "permission" page says it grants the "the non-exclusive, unencumbered and irrevocable right, but not the obligation, to use all or part of the images contained in this directory http://www.personalityphotos.com/wikipedia/ in any way seen fit by it's users at the resolution found herein in this directory." (emphasis added) However, it also states "It shall be the responsibility of the users of such images to obtain the required licenses under current U.S. copyright and trademark law from the estates or legal representatives of such persons appearing in the images. We cannot grant such license. We only can grant copyright rights to their fair use in editorial or non-commercial contexts." Which may just be a misunderstanding of the law. "Fair use" can not be "granted". Fair use is defined by not needing permission. The U.S. government has "granted" this. Overlooking this misunderstanding, it appears you're talking about personality rights. OTOH, it also may be a purposely misleading statement of the actual copyright status - personalityphotos.com is not the true copyright holder. The claim that all are CC-BY-2.5 or CC-SA-3.0 seems unlikely. You can not relicense someone else's work. They may even be Public Domain, which can not be re-copyrighted (which is what you're doing be claiming them CC).

There's quite a few problems with this discussion so far:

• It seems you kinda have this whole thing backwards; you're asking for proof it's a violation instead of proving it's not.

Anyone who believes that their intellectual property rights have been infringed, must provide our Intellectual Property Rights Agent with a notification that contains the following information:

1. A physical signature of a person authorized to act on behalf of the owner of the copyright or other rights that have been allegedly infringed.

2. Identification of the copyright, trademark or other rights that have been allegedly infringed.

3. The URL or product number(s).

4. Your name, address, telephone number and email address.

5. A statement that you have a good-faith belief that use of the material in the manner complained of is not authorized by the rights owner, its agent or the law.

6. A statement that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of the copyright or other right that is allegedly infringed.

You may reach our Intellectual Property Rights Agent, via email at sales@personalityphotos.com

Being that we have the onl;y images in many of these cases we do claim copyright ownership of them.

• Sorry, it doesn't work that way.

Wikipedia has no liabilty since they are neither the owners nor the source of the images, we are.

• If only... No, if we're distributing them we are just as responsible.

Be aware that claiming to be the copyright holder and actually posessing such rights are two distinct things.

• Then what exactly does "copyright holder" mean?

Corporate lawyers will often issue threatening letters claiming intelectual property rights. They mainly do this to discourage legitimate use of images in an editorial or fair use context and in order to attempt to control the editorial context in which these images appear.. That is why we require as do the courts extensive documentation to back up such claims. After thirty plus years in this business we have yet to appear in court to dispute any of our images

• Are you saying you have the right to distribute these images because of fair use?

As to the issue of commercial distribution, that falls into an entire other area outside of copyright law. The images may of course be used in an editorial context if attibution to source is made as per our condition. Commercial use is beyond our scope since images of well known personalitities for commercial products require in addtion to copyright permission a license which can only be issued by the heirs of the estates of such persons or their authorized representatives. In other words, we may own the images and rights to them, to use them commercially however, requires the permission of the estates of the people appearing in the images. That is beyond our ability or authority to do. As for derivative works, basically the same rules apply. They can use the images any way they see fit as long as they cite the source.

• Why should we cite the source if you didn't? Citing the source is one thing, citing the author/copyright holder is better. That's all CC-BY requires. Under those licenses all we got to do is give credit to Anonymous or Unknown.

Commercial issues are another matter that have nothing to do with copyright law.

• Not true at all.

It is a patent and trademark issue

• No, generally people are not trademarked or patented. It's a publicity rights issue.

Patent was not a good word to use, I only brought it up because someone mentioned GFDL license which is more appropriate for items such as software, use of photos commercially fall more into patent and intellectual property law.

• This kinda unrelated, but the GFDL (General Free Document License) is indeed for text, but you're right it doesn't work well for images. Photos aren't patented and of course this falls in "intellectual property law". That's the whole issue. Please look at that article to see what it means.
• One thing I notice is they all say "Author/Photographer unknown". Seems let a safe bet no one will come after these and we have no way of verifying that "unknown author" has given the rights to this website. Personally, I think uploading all these were done for promotional reasons. The uploader continually makes comments that suggest they are only allowing fair use, which even if they don't own the copyright, they can say because, no one needs permission for fair use.

we still need to resolve how this will be tagged to images in dispute and who would do that. Obvioulsy because of a conflict of interest we cannot do so ourselves.

• It's not an article you would be editing, WP:COI doesn't really apply if your just providing a link to your permission page.

When I started writing this I wasn't planning to take apart everything you said. There were just so many things wrong, I felt I needed to point them out now instead of potentially dragging out this discussion. Please don't take anything personal. I'm making no claims of the actual copyright status - the evidence just doesn't point to them being free. If anything, the Wikipedia permission page is not needed. We are not special - a Creative Commons applies to everyone. Rocket000 (talk) 15:10, 13 December 2007 (UTC)

[edit] Quadell's take

Here's the situation, as I understand it. Long ago, many major studios didn't bother to archive their photos. Once they had gotten their use out of them, they saw no need to keep them or worry with them. Personality Photos manages to get a hold of images of this type (frequently they have the only copy), and sells the rights to use them. Good for them. They also like Wikipedia, and decided to be generous and license low-res versions under a CC license so we can use them. They seem like great folks: honest, generous, and forthcoming.

The trouble is, they don't actually hold the copyrights to their images. The original photographer (or the studio, in the case of a work for hire) is the only one who can claim copyright, no matter who owns the negative, and Personality Photos has not received a transfer of copyright. The risk of a suit is extremely low, which is why they have never been sued. In many cases, the photo will actually be in the public domain -- perhaps it was first published without a copyright notice before 1978, or perhaps it was fist published before 1963 and the copyright was not renewed (and renewal was quite rare for photographs), or maybe the image was published before 1989 without a specific subsequent copyright registration -- there are all kinds of reasons the copyright may have expired. And in just about all the rest of the cases, the studio did not keep any records of who created the image and when, and so cannot make a claim of copyright in court even if they wanted to. That's why it's relatively safe for Personality Photos to act as if they were the copyright holder, and why it would be legally safe for us to use the photos as well.

(So how does Personality Photos make money? Because reusers such as publishers would rather "license" the image and leave the risk to someone else. If a publisher "licenses" an image from Personality Photos, they pay a rather small fee, which publishers are very used to doing. If instead a publisher were to use the image without asking Personality Photos' permission, they would be taking a risk: what if PP really does hold the copyright? Besides, if the original photographer somehow shows up and claims violation, that publisher could simply show the judge that they showed due diligence by trying in good faith to license the photo, and PP would be liable for damages, not the publisher. In effect, PP is charging to assume the risk.)

Wikipedia, however, has strict internal rules about what media it can use, regardless of the level of actual risk. If we can show that any of the photos are PD, then we can use them. But if not, our policies only allow use if we can determine the actual copyright status (and copyright-holder, if there is one). Either our policies should change to allow copyright violations that are low-risk and practically unenforceable -- or we can't use these images.

I hope it doesn't sound like I'm badmouthing Personality Photos. I'm sure their motives are pure, and they perform a great service by making these sorts of photos available. But we just can't use images that were "licensed" by someone other than the legal copyright holder. – Quadell ^{(talk) (random)} 21:52, 17 December 2007 (UTC)

• You do realize that in many cases he re-licenses pictures back to the media conglomerates that produced them in the first place? -Nard 16:25, 19 December 2007 (UTC)
  • Yes. But he had no legal authority to do so, since he doesn't hold the copyright on those images. – Quadell ^{(talk) (random)} 13:18, 20 December 2007 (UTC)

Those that I could determine to be PD, I kept. The rest, I deleted. – Quadell ^{(talk) (random)} 00:15, 23 December 2007 (UTC)

Thank you Quadell. I agree completely with your decision. If it was my own personal work I won't think twice about using these images, however, this is Wikimedia and our rules are strict. Maybe stricter than necessary, but we kinda have to be because of the nature of our medium. Better safe than sorry, I guess.

And thanks for also correcting the remaining images' licenses. Cheers, Rocket000 (talk) 13:11, 23 December 2007 (UTC)