Commons:Derivative works

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Decision tree for derivative works on Wikimedia Commons
This page is considered an official guideline on Wikimedia Commons.
It illustrates standards or behaviors which most editors agree with in principle and generally follow. Feel free to update the page as needed, but please use the discussion page to propose major changes.
Walnut.png This page in a nutshell: Unless you have authorization from the copyright holder, or in situations where this does not apply as described below, do not upload works derived from other copyrighted works onto Commons, or they will be deleted.


Many creative works are a derivative work of something, but in most cases, copyright can't be claimed on them because of varying factors. For photographs for example, exceptions include it not being a creative work, having utilitarian functions, freedom of panorama exemptions, and so on. However, in all other cases, only the copyright holder has the right to authorize derivative works. These include pictures of sculptures, action figures and other copyrighted works. The same principle applies to other works too, you can't make a movie version of a book you just read without the permission of the author either, because it would be a derivative work.

Contents

[edit] What is a derivative work?

Derivative works, according to the U.S. Copyright Act of 1976, Section 101, are defined as follows:

"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. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a 'derivative work'".

In short, all transfers of a creative, copyrightable work into a new medium count as derivative works. Also, all other modifications whose outcome is a new, creatively original work. Who may create such a derivative work? See U.S. Copyright Act of 1976, Section 106:

"(T)he owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (...) (2) to prepare derivative works based upon the copyrighted work".

As opposed to an exact copy or minor variation of a work (e.g. the same book with a different title), which does not create a new copyright, a derivative work creates a new copyright on all original aspects of the new version. Thus, for example, the creator of The Annotated Hobbit holds a copyright on all of the notes and commentary he wrote, but not on the original text of The Hobbit which is included in the book. The original copyright is still valid. The person who holds the copyright to, say, a Darth Vader action figure or a Picasso statue has the exclusive right to create derivative works. That includes photographs of the work, since (as court decisions put it) that is one aspect of the copyright holder's work that he or she might want to exploit commercially.

[edit] If I take a picture of an object with my own camera, I hold the copyright to the picture. Can't I license it any way I choose? Why do I have to worry about other copyright holders?

By taking a picture with a copyrighted cartoon character on a t-shirt as its main subject, for example, the photographer creates a new, copyrighted work (the photograph), but the rights of the cartoon character's creator still affect the resulting photograph. Such a photograph could not be published without the consent of both copyright holders: the photographer and the cartoonist.

It doesn't matter if a drawing of a copyrighted character's likeness is created entirely by the uploader without any other reference than the uploader's memory. A non-free copyrighted work simply cannot be rendered free without the consent of the copyright holder, not by photographing, drawing nor sculpting.

[edit] If I take a photograph of a kid who is holding a stuffed Winnie the Pooh toy, does Disney own the copyright in the photo since they own the Pooh design?

No. Disney does not hold the copyright on the photo. There are two different copyrights to be taken into account, that of the photographer (concerning the photo) and that of Disney (the toy). You have to keep those apart. Ask yourself: Can the photo be used as an illustration for "Winnie the Pooh"? Am I trying to get around restrictions for two-dimensional pictures of Pooh by using a photo of a toy? If so, then it is not allowed.

This photograph of the Venus de Milo is a derivative work. The artist died more than 2000 years ago, so the statue is in the public domain—no copyright problems here provided that an appropriate licence is provided to cover the photographer's copyright in the photograph

Be aware, though, that Disney's protection strategy both relies on author's right (artistic property) and trade mark (extended to protect a design). The actual legal analysis would be more subtle in that case.

While Disney does not hold a copyright on the photo, there may be an infrigement by virtue of copying via the photograph Disney's copyright Pooh. In fact, you may have created a derivative work without permission.

[edit] Isn't every product copyrighted by someone? What about cars? Or kitchen chairs? My computer case?

No. There are special provisions in copyright law to exempt utility articles to a wide degree from copyright protection:

The second part of the amendment states that

"the design of a useful article [...] shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independ­ently of, the utilitarian aspects of the article."

A "useful article" is defined as "an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information." This part of the amendment is an adaptation of language added to the Copyright Office Regulations in the mid-1950's in an effort to implement the Supreme Court's decision in the Mazer case.

In adopting this amendatory language, the Committee is seeking to draw as clear a line as possible between copyrightable works of applied art and non-copy­righted works of industrial design. A two-dimensional painting, drawing, or graphic work is still capable of being identified as such when it is printed on or applied to utilitarian articles such as textile fabrics, wallpaper, containers, and the like. The same is true when a statue or carving is used to embellish an industrial product or, as in the Mazer case, is incorporated into a product without losing its ability to exist independently as a work of art. On the other hand, although the shape of an industrial product may be aesthetically satisfying and valuable, the Committee's intention is not to offer it copyright protection under the bill. Unless the shape of an automobile, airplane, ladies' dress, food processor, television set, or any other industrial product contains some element that, physically or conceptually, can be identified as separable from the utilitarian aspects of that article, the design would not be copyrighted under the bill. The test of separability and independence from "the utilitarian aspects of the article" does not depend upon the nature of the design—that is, even if the appearance of an article is determined by aesthetic (as opposed to functional) considerations, only elements, if any, which can be identified separately from the useful article as such are copyrightable. And, even if the three-dimensional design contains some such element (for example, a carving on the back of a chair or a floral relief design on silver flatware), copyright protection would extend only to that element, and would not cover the overall configuration of the utilitarian article as such.

From Cornell University Law School notes on US Code 17 § 102

Sculptures, paintings and action figures do not have utilitarian aspects and are therefore generally copyrighted as works of fine art. On the other hand, ordinary alarm clocks, dinner plates, gaming consoles or other objects of daily use are usually not copyrightable.

It is possible for utilitarian objects to be copyrightable (for example, consider an alarm clock in the shape of a cartoon character), but there is no clear line between works which are copyrightable and objects which are not, and different jurisdictions use different criteria. For example, German law has a term called Schöpfungshöhe, which is the threshold of originality required for copyright protection. As in most jurisdictions, the level of originality required for copyright protection of works of applied art is higher. There is no legal definition for this threshold, so one must use common sense and existing case law.

Instead of copyright protection, utilitarian objects are generally protected by design patents, which, depending on jurisdiction, may limit commercial use of depictions. However, patents and copyright are separate areas of law, and works uploaded to Commons are only required to be free with respect to copyright. Patents are public knowledge, so publishing a depiction of a patented object on Commons cannot in itself constitute patent infringement. Therefore, patents of this kind are not a matter of concern for Commons.

Photos of people in costumes of copyrighted and/or trademarked characters, in general, are understood as lawful. [5]

[edit] Text

It is not allowed to copy text from non-free media like copyrighted books, articles or similar works. Information itself, however, is not copyrightable, and you are free to rewrite it in your own words. Quotations are allowed if they are limited in size and mention the source.

[edit] Maps

In the United States, many maps are in the public domain. The most common cases are:

Even for maps which are copyrighted, not all the contents are subjected to copyright. The problems arise from the tension between the principle that maps are protected and two other basic principles: namely, that copyright does not protect facts and that copyright does not protect systems. Traditional maps are pictorial representations of geographic and demographic facts organized to allow the user to readily understand and easily extract the factual information portrayed. The factual information, such as boundary lines and locations of landmarks, is supposedly unprotected. The organizing principle for presenting the information will often, if not always, be deemed an unprotected system or idea. Thus, many maps will apparently contain only unprotected elements.

The issue was the object of several court cases. The tension among traditional copyright principles as they apply to maps has been heightened by Feist Publications, Inc. v. Rural Telephone Service Company, Inc. The Feist decision follows standard copyright dogma to the conclusion: copyright protects only expression, not facts; the expression protected must be the product of intellectual creativity and not merely labor, time, or money invested; the protected elements of the resulting work are precisely those that reflect this intellectual creativity, and no more. This is the conclusion of a court of law on the issue. [2]

As a result of the court decisions, following parts of a map are in the public domain, and may be used freely:

While the above applies to the United States, it is not clear if it is applicable to other countries. In the European Union Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases has been approved. However, neither the directive, nor any of the national laws promulgated after its approval clearly specify that elements represented on maps qualify as databases.

In Germany a verdict of the court in München of November 9, 2005, stated that, according to the German Copyright Law [3] topographic maps are to be considered databases, as defined in art. 87 of the law and the information is protected according to the provisions regarding databases. This also refers to the length of the protection of databases which is significantly shorter than the protection of copyright. [4]

In any case, the copyright for databases according to the Directive is of fifteen years, implying that, regardless of the interpretation, the information on maps which could be interpreted as being database related expires in 15 years after the publication of the map.

[edit] I know that I can't upload photos of copyrighted art (like paintings and statues), but what about toys? Toys are not art!

Legally, most toys are art. It is the same thing whether you take a picture of a sculpture or a picture of Darth Vader. Both are copyrighted; in both cases, the copyright of the photograph does not void the original copyright, and in both cases you will need the permission of the original creator. You cannot upload pictures of a sculpture by Picasso, and you can't upload photographs of Mickey Mouse or Pokémon figures.

Numerous lawsuits have shown that Mickey Mouse or Asterix have to be treated as works of art, which means they are subject to copyright, while a common spoon or a table are not works of art. They can be copyrighted, perhaps, if they were given a very special form by a designer and presented as art (and not a spoon), but the ones you use at home are probably not. [5]


[edit] But Wikimedia Commons isn't commercial! And what about fair use?

Wikimedia Commons is not a commercial project, but the project scope requires that every single picture may be used commercially via free licenses. Every image or media file must be free of third-party copyrights.

Fair use is not allowed on Commons. "Fair use" is a difficult legal exception for pictures that are used in a certain limited context; it is not applicable on entire databases of copyrighted material.

[edit] But how can we illustrate topics like Star Wars or Pokémon without pictures?

Admittedly, it may be difficult or even impossible to illustrate such articles. However, the articles can still be written. Their lack of illustrations will not affect the vitality of Wikimedia's projects, and there are plenty of topics with opportunities to create illustrations which do not violate third-party copyrights.

Some Wikimedia projects allow non-free works (including derivatives of non-free works) to be uploaded locally under fair use provisions. The situations in which this is permitted are strictly limited. It is vital to consult the policies and guidelines of the project in question before attempting to invoke fair use claims.

[edit] I've never heard about this before! Is this some kind of creative interpretation?

Actually, no. Photographs of, say, modern art statues or paintings cannot be uploaded either, and people accept that. If we accept the legal standard that comic figures and action figures can be considered as art and thus are copyrighted, we are just applying the standard rule here.

[edit] Casebook

How does this policy concern the selection of images that are allowed on Wikimedia Commons?

[edit] See also

[edit] References

  1. ↑ a b [1] Public Domain Sherpa
  2. ↑ Dennis S. Karjala - Copyright in electronic maps - Jurimetrics Vol. 35 (1995) pp.305-415
  3. ↑ [2] Gesetz über Urheberrecht und verwandte Schutzrechte (Urheberrechtsgesetz)
  4. ↑ [3] Landgericht München I - Datenbankschutz für topografische Landkarten
  5. ↑ [4] Public Domain Sherpa

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