Commons talk:De minimis

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It's interesting to apply this to Commons:Deletion requests/Image:HK Worldwide House The Beverly Hills Central Tram Stop 1.JPG. It's clear to me that that image should be deleted, but I would be interested to hear other views. --MichaelMaggs 16:02, 6 June 2008 (UTC)

Free Culture?

Reading one of the stories in "Free Culture" by Lawrence Lessig (chapter 7 pp. 95-99 to be exact) one gets the impression that the de minimis principle is quite subjective, and assuming it even in cases that might seem obvious to you and me might not be the "safe" (legally speaking) choice. I'm not too comfortable claiming de minims on commons unless there are clear guidelines reviewed by lawyers as to what is really marginal. --Inkwina (talk • contribs) 19:51, 7 June 2008 (UTC)

Unfortunately, there are no real 'bright lines' in copyright law, but this concept is not significantly more fuzzy than a whole range of issues we already deal with (eg required level of originality). Commons already has huge numbers of images where this concept has been silently applied. The purpose of this page is not to add anything new, but just to clarify so far as possible what we already do. --MichaelMaggs 20:00, 7 June 2008 (UTC)

My issue is with "claiming" de minimis rather than practicing it. This page explains brilliantly what de minimis is, but it does not tell the average user what to do. I just think that it is slightly more fuzzy than other aspects, that's all. It might be mistaken by the unaware uploader as "a way around" despite the guidelines attempt to make it obvious it is not so. --Inkwina (talk • contribs) 11:04, 8 June 2008 (UTC)

The paper you mention is interesting, but I would never have expected use of the Simpsons in such a context to be de minimis. The reason appears in the statement between pp95 and 96: "As Else judged it, this touch of cartoon helped capture the flavor of what was special about the scene." So the inclusion of the cartoon was intentional, and "helped capture ..what was special". De minimis requires the opposite: insignificance. --MichaelMaggs 20:25, 7 June 2008 (UTC)

Ok, I get your point. But I think the issue here was that it was "adults watching cartoons" that helped capture the flavour, not "the simpsons" in particular (I have not seen the clip myself so its 3rd hand info). But it makes the point ever more poignant; that a 4 second clip on a tv screen in a scene was not considered "insignificant" by legal beagles! --Inkwina (talk • contribs) 11:04, 8 June 2008 (UTC)

From what one understands, the situation with filmmaker Jon Else and the Simpsons footage was about fair use, as opposed to de minimis. Although the incidental inclusion of the Simpsons footage was undoubtedly fair use, Else was not able to rely on fair use due to factors such as errors and omissions insurers (required for network distribution of the film) being wary of films relying on fair use. (Since "Free Culture" was published, the situation with documentary filmmakers and fair use has become much more favorable.) --Gazebo (talk) 07:57, 18 March 2014 (UTC)

Unsinn

Es ist absoluter Unsinn, hier alles Mögliche unter "De minimis" zusanmmenzuwerfen. Nur weil Maggs Engländer zu sein scheint, besteht keinerlei Berechtigung UK-Grundsätze hier zu behandeln, wenn man nicht auch alle anderen Länder behandelt. Die US-Rechtslage ist relevant, weil Bilder in den USA und im Ursprungsland frei sein müssen. Die UK-Rechtslage ist nur für UK relevant, in Deutschland gilt:

• de:Schöpfungshöhe
• de:Beiwerk

--Historiograf (talk) 18:41, 28 June 2008 (UTC)

I agree that more discussion needs to be added about the corresponding Civil law approach. Lupo is looking into it: User talk:Lupo#De minimis. --MichaelMaggs (talk) 19:31, 28 June 2008 (UTC)

I said I'd do so, but I also said I'd have to visit the library to do this right. Haven't had the time to get there yet. And I won't have the time before August. If Historiograf already has researched this topic, he would be in a much better position to write a little about how this is handled in Germany. From what I see, the criteria are to be interpreted narrowly. Lupo 06:11, 30 June 2008 (UTC)

I was just about to come and ask if this is some sort of Common Law thing. And I was also going to point out that there is a kind of "de minimis" in the Finnish law. That is already covered here: COM:FOP#Finland. Samulili (talk) 20:11, 13 July 2008 (UTC)

Policy

As this has been in place for 4 months without serious argument, it's time to label it as policy. --MichaelMaggs (talk) 20:10, 7 October 2008 (UTC)

Policy Conflict: Crops of de minimis images

The "Crops of de minimis images" section conflicts with the policy that "derivative work must be allowed" Commons only accepts content "that can be used by anyone, for any purpose." The {{Policy}} template should be removed from this article until it agrees with precedent policy (or the conflicting precedent policy should be modified). —Danorton (talk) 20:46, 7 October 2008 (UTC)

It agrees fine. Derivative works are allowed, it's just that those derivative works may not count as de minimis, depending on the crop. -mattbuck (Talk) 20:58, 7 October 2008 (UTC)

Sorry, the actual policy reads that Commons only accepts content "that can be used by anyone, for any purpose." So if the cropped derivatives are no longer de minimis, they aren't allowed on Commons. A work whose trivial derivative isn't allowed on Commons cannot be allowed on Commons. —Danorton (talk) 21:04, 7 October 2008 (UTC)

It has never strictly been the case that Commons only accepts content "that can be used by anyone, for any purpose". There are a vast number of reasons why content may not be re-usable in some contexts: trademarks, personality rights, defamation, forgery laws, censorship, criminal laws such as anti-nazi laws and so on. Not every use is allowed for every image. See Commons:Non-copyright restrictions. If there is some other policy that suggests to the contrary we should correct that impression. If you are referring to the statement at the top of COM:L, you should also read the footnote, which says: "This may be regulated by geographical, trademark, or other laws unrelated to copyrights, which Wikimedia Commons can not account for". I don't think there is any conflict. --MichaelMaggs (talk) 22:04, 7 October 2008 (UTC)

I agree that it's possible to stretch "for any purpose" to an absurd interpretation.

So, let's talk about a reasonable interpretation of "for any purpose", specifically, that it means that the resulting content is unrestricted by any intellectual property license. Allowing the "cropping" exception creates a "de minimis wormhole" through which any copyright image can travel freely through Commons. It simultaneously re-creates the license while removing all license restrictions. The "crop" exception is simply incompatible with the "free use" policy. —Danorton (talk) 22:25, 7 October 2008 (UTC)

I apply the same argument presented in the Derivative works guideline to the question "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?". Consequently, the "crop" also conflicts with this guideline.

I appreciate the de minimis argument, but the "crop" section drops the ball, as it fails to consider proper degrees in relative and absolute terms. Instead of saying that free uncropped content can be cropped to yield non-free content, the "crop" section should warn that if content can be trivially cropped to yield non-free content, the original content is also non-free, regardless of how de minimis the cropped portion appears in the relative context of the original.

This is easily prevented by not loading an original of such high resolution that trivial cropping can yield non-free content. Danorton (talk) 22:54, 7 October 2008 (UTC)

• To copy my reply from Commons talk:Licensing our lawyer has said these images are fine (per en:WP:MGS). To the extent a crop focuses on the copyrighted work the de minimis legal concept is defeated. This is not the fault of the original image, and does not make sense we would censor the resolution of the original image. Again, this is not fair use, if it were you would be correct. If you believe the wording needs to be updated, it's a wiki, go ahead and fix it. But toning down the resolution of an original, legal image to prevent people from using it to create derivative works by cropping is not the way Commons works. -Nard the Bard 23:19, 7 October 2008 (UTC)
  • No, unless you are referring to comments you didn't reference, the statement "our lawyer has said these images are fine" you are misrepresenting misrepresents the referenced comments of Wikimedia's lawyer. Here's what MikeGodwin actually wrote:

In general, a photograph that happens to include all or part of a copyrighted image or a trademark does not raise significant intellectual property issues. Occasionally, copyright or trademark holders attempt to assert claims regarding such photographs -- these are best responded to on a case-by-case basis. It is, in my view, a bad idea to be pro-actively policing photographs that happen to include a copyrighted work or a trademark, absent some evidence of an actual claim or dispute. MikeGodwin 15:12, 28 July 2007 (UTC) [1]

Firstly, he doesn't make a blanket statement, but writes that they should be addressed "case-by-case". The current blanket discussion that has held images in limbo for months is inappropriate, and each image should be considered separately on various merits.

Secondly, with all due respect to MikeGodwin, I see no indication that he considered or addressed the specific problem of absolute image size (i.e. pixel and color depth). (In his defense, I don't see that that particular detail was was at issue.) Digital reproductions and increased image resolutions raise relatively new copyright issues that need to be considered.

I share MikeGodwin's view that it's not helpful to actively police images that happen to include otherwise protected portions, but when the otherwise protected portion is obvious, it's not policing, it's simply noting the obvious. When the otherwise protected portion is large enough in absolute pixel measurement to stand protected on its own, it's no longer de minimis.

While a copyright image may be de minimis in the relative context of an entire image, a digital image requires additional consideration regarding absolute dimensions. The "crop" section of this article fails to properly consider this. —Danorton (talk) 16:31, 9 October 2008 (UTC)

• Disagree about a cropping "wormhole". A crop is a separate work -- if that work violates copyright, then we would not allow the crop on Commons. We cannot control what other people do. For one example, there are French cases where photos of an entire plaza are not copyright violations, even if a photo of one particular building would be. In that situation, making a crop of a photo like that (to focus on a building or included sculpture) could definitely result in a copyright violation even if the original is not -- and I would emphatically not support trying to lower the allowed resolution on such photos. Screenshots are no different. That said, if it is easy to create another screenshot that does not use said icons, that would be preferred, but may not always be possible (and I would likely recommend waiting until a replacement is uploaded before deleting them outright). Any image trying to use this policy to get around usual copyright restrictions could definitely be a problem (i.e. a screenshot where copyrighted elements are pronounced enough that someone could directly use it as an illustration of the element itself, say on a Wikipedia article unrelated to any other aspect of the screenshot -- that would basically mean it is not de minimis). Carl Lindberg (talk) 04:53, 8 October 2008 (UTC)

To denote something as a separate work requires some additional "art" or creativity. A trivial crop or re-sizing does not satisfy that requirement. (I cannot reasonably respond to your nonspecific reference to a specific legal judgment on a specific case in a single country.) I agree that screenshots do not warrant separate treatment: from Commons:Screenshots: "If a screenshot contains icons or content of non-free sites, it is not free." —Danorton (talk) 16:31, 9 October 2008 (UTC)

Let's take an example. As I understand it, you object to Image:L1090686.JPG (1449884165).jpg because a user is not free to crop it to show the TV screen only. The Corollary is that any image which includes any copyright element within it, no matter how small, cannot be hosted here. That is not the policy and I doubt if you would get much support if you were to suggest that it should be. --MichaelMaggs (talk) 18:11, 9 October 2008 (UTC)

First, taking an individual image considers the image as a separate case, and I have no objection to case-by-case consideration. The problem is of scope, and I believe that the de minimis policy contradicts with precedent licensing policy. Second, I appreciate and respect that a properly expressed de minimis policy can be helpful and reasonable so, no, I do not assert that any crop that contains any form of copyright material cannot be considered de minimis. Third, in the example you provide, I see no obvious portion of the image that, if trivially edited, would result in an image of sufficient quality (color or resolution) that would restore any protection. (On my computer I can't display the entire image at its full resolution, but I don't believe that doing so would reveal anything else that is unacceptable.)

The issue that I am raising is that the "crop" section of the de minimis policy is excessively broad. Of course there are many examples similar to the one you note that would not be excluded by any test I have suggested. There are, however, many images that would plainly fail such a test. Such images should be excluded from Commons. There are images that fall somewhere in between, and those might warrant further discussion on a case-by-case basis.

I don't generally object to a de minimis policy, I object to one that plainly conflicts with several existing policy and guideline statements: one that fails to properly balance relative de minimis issues with absolute image quality. —Danorton (talk) 19:04, 9 October 2008 (UTC)

I think you are importing fair-use type concepts in saying that you cannot see any crop that would result in "an image of sufficient quality (color or resolution) that would restore any protection." A close crop around the TV screen would result in an infringement of the broadcaster's copyright, and it would be no defence to say that the resultant quality is low or the colour is poor. A substantial copy is a substantial copy, and does not stop being one just because it is of poor quality. That may be relevant to Fair use, but such arguments are not applicable here. --MichaelMaggs (talk) 19:22, 9 October 2008 (UTC)

No, I would argue that the quality of an image can be reduced to a de minimis level. As "fair-use" relates to U.S. law, I cite this U.S. District Court decision which states that when considering the de minimis principle, "the Court must look to the quantitative and qualitative extent of the copying involved." (emphasis added) —Danorton (talk) 19:37, 9 October 2008 (UTC)

Qualitative, in that context, is referring to subjective importance not to pixel count or colour accuracy. --MichaelMaggs (talk) 21:11, 9 October 2008 (UTC)

Do you dispute my assertion that the de minimis principle applies if the comparison is trifling due to the poor quality of the copy? —Danorton (talk) 21:48, 9 October 2008 (UTC)

Insofar as you are arguing that a close crop of the TV screen counts as a "trifling" copy that would not infringe any copyright, then yes I do. --MichaelMaggs (talk) 21:55, 9 October 2008 (UTC)

So it seems that, with this specific example, you would consider the derivative obtained by this trivial edit as an image that warranted copyright protection, while I would not. Presuming we both are giving it reasonable consideration, this would make it one of the middle-ground cases. At the one extreme, there are almost certainly images that we would both agree can yield copyright-protected derivatives by trivial editing. At the other extreme, do you believe that there are images that could be trivially edited to produce a result that would be subject to copyright by strict technical interpretation, but where reasonable judgment would consider it too trivial to bother with? —Danorton (talk) 22:20, 9 October 2008 (UTC)

Yes, if we are speaking about US law, there must be cases where the quality of the copy is so poor that it would fall within category 2, mentioned on the COM:DM page "Where the extent of copying falls below the threshold of substantial similarity (always a required element of actionable copying)". So, indeed, there is a continuum.--MichaelMaggs (talk) 01:57, 10 October 2008 (UTC)

• Is Image:Kermit the Frog with the 2008 Ford Escape Hybrid.jpg this photo considered de minimis? I ask because MichaelMaggs recently deleted a crop of Kermit, but this image is still intact. Or are both copyvios? -Nard the Bard 14:38, 10 October 2008 (UTC)

Both are copyvios. --MichaelMaggs (talk) 15:09, 10 October 2008 (UTC)

Comment: would this conflict be resolved by adding a footnote, or slightly rewording the existing footnote on Commons:Licensing? Maybe like this?

Wikimedia Commons accepts only free content, that is, images and other media files that can be used by anyone, for any purpose.

In other words, qualify the cropping exception so that commons both allows upload of such images, but at the same time also warns reusers that cropping of certain parts of certain images will result in a copyright violation. For examples of images where trivial crops yield large copyright violations, see Special:WhatLinksHere/Template:FoP-France. I see the same problem that Danorton does, but would prefer to see Commons modify the exact definition of any purpose, than lose otherwise free images. Would that work? -Wikibob (talk) 22:28, 11 October 2008 (UTC)

Just as an aside, that template may not be the best possible example, since, at a glance, almost all of the images it's currently used on appear to feature a single building or sculpture as their main subject. I'm not sufficiently familiar with French law to say whether that really makes them all copyvios (and at least some of the buildings are probably old enough for the copyright to have expired), but I wouldn't expect cropping to make any difference to the copyright status of most of them (unless you crop out the building, in which case it of course helps). —Ilmari Karonen (talk) 21:10, 21 October 2008 (UTC)

Translation of German law

This page gives the translation of § 57 of the Federal German UrhG Unwesentliches Beiwerk, Zulässig ist die Vervielfältigung, Verbreitung und öffentliche Wiedergabe von Werken, wenn sie als unwesentliches Beiwerk neben dem eigentlichen Gegenstand der Vervielfältigung, Verbreitung oder öffentlichen Wiedergabe anzusehen sind, as Inessential cowork, Copying, propagation and public repetition of works are permitted if the work is inessential cowork besides the actual object of a copying, propagation and public repetition. I suggest a couple of emendations :

• First, 'Beiwerk' means 'accessory'... no need to call it a *'cowork' when there are already real words to use in translating ;)
• Second, I suggest translating 'Wiedergabe' as 'reproduction' rather than 'repetition'.

So, I suggest: Copying, propagation and public reproduction of works are permitted if the works are non-essential accessories to the actual object of the copying, propagation or public reproduction. What do you think? Beobach972 (talk) 04:39, 6 January 2009 (UTC)

Looks good. Can you change the text? --MichaelMaggs (talk) 10:48, 6 January 2009 (UTC)

Photos of media merchandise on store shelves

Are photos of books/DVDs/video games on store shelves OK? I think de minimis applies here since the focus is on the shelves as a whole and not on a particular item. I also have a photo of a Harry Potter merchandise display that I'm wondering would be fine to upload, again with the emphasis on the myriad of associated products and not on any particular item. Thanks. --BrokenSphere 04:14, 30 July 2009 (UTC)

It depends. If it were a photo of the store or a photo of the shelves at an oblique angle, you'd have a good argument for de minimis, but if it were a straight on shot of the shelves, it's difficult to argue that the items on the shelves are not the primary subject. A rule of thumb is, could you in theory edit out the copyrighted content without diminishing the value of the image? If not, then it may not be de minimis. You may want to also leave a note at Commons talk:De minimis referring to this discussion. Dcoetzee (talk) 04:57, 30 July 2009 (UTC)

I have always been of the opinion that a photograph of a collection of copyrighted items, if the collection is sufficiently large, at a certain point becomes an image of a collection rather than of individual works, and DM arguably applies. That is just my own view, though, and obviously it would on a case by case basis. However, I don't think it would apply to a collection of works all involving the same subject (i.e. Harry Potter). --skeezix1000 (talk) 17:15, 30 July 2009 (UTC)

De minims in audio

A deletion discussion related to de minimis in audio: Commons:Deletion requests/File:Guitar Wolf.ogg. In case anyone wants to join in. Kaldari (talk) 00:11, 14 November 2009 (UTC)

• Even as an avid inclusionist I would normally not vote keep for anything including copyrighted audio, as some sampling cases have established copyright violation for just one or two notes. But this appears to be an ending riff, not actually part of a copyrighted work, and hardly recognizable at that. This is a very unique case and I don't expect very many other files to qualify. -Nard the Bard 18:25, 14 November 2009 (UTC)

Template:Advertising facility

Please help to discuss, correct and improve a draft of a new template Template:Advertising facility/en. --ŠJů (talk) 11:32, 5 November 2010 (UTC)

de minimis ... the extended way

maybe a series of photographs exhibited in a museum → de minimis according to the DR close

If someone wants to have an example which seems undeleteable by a DR on Commons because it is surely / "to the best of our knowledge" free → look right. Does someone know the photographer? I want to illustrate his article with it to show his works which create such a nice atmosphere in the museum. --Saibo (Δ) 15:05, 10 January 2011 (UTC)

Added to "examples" section on the front page now. --Saibo (Δ) 00:58, 14 September 2011 (UTC)

De minimis related deletion discussion

Please see Commons:Deletion_requests/File:Egypt_Uprising_solidarity_Melbourne_protest,_4_February_2011.png. Dcoetzee (talk) 02:16, 21 April 2011 (UTC)

...but what is the policy?

I assume the point of this is that these sorts of images are allowed on Commons, but can we actually say that? Right now it reads like an article describing the law in various countries, but doesn't actually say what our policy is. Clarification would be good, especially considering that fair use is legally acceptable, but not allowed on Commons. --Philosopher ^{Let us reason together.} 10:45, 11 May 2011 (UTC)

De minimius of collage of copyrighted photos

I nominated the image File:Journalists Memorial Wall.jpg for deletion a few months ago because it is a photograph of a collage that consists entirely of other photographs. Two editors said that each one of the images is de minimus (including the admin who closed the "discussion"), and said it should be kept for that reason. While each one may qualify for de minimus on its own, I disagree that as a whole it is not subject to copyright. If the collage was in the background of another photograph I would see how it would be acceptable, but the entire photograph is a collage of other photographs, so I don't see how de minimus would make this image free. Dream out loud (talk) 17:48, 4 June 2011 (UTC)

Renominated. Dcoetzee (talk) 10:54, 5 June 2011 (UTC)

Software screenshots

So what was decided on them? Are we supposed to only upload Windows software screenshots that are cropped or use the classic theme? The closing remarks of this discussion led me here, but I still see no consensus on what is and isn't allowed. The closest I see to consensus is that there are currently screenshots that include Luna (Windows XP) or Aero that have not been deleted. Trlkly (talk) 02:15, 2 March 2012 (UTC)

When I made a statistical overview of which images listed in that discussion sporting the Classic and new user interface decorations were changed (cropped at the least), then results were thus:

Decorations	Total	Action taken on	Tally
Classic	34	2	5.88%
Non-geometric	18	7	38.89%

The conclusion is that there were substantially more images (relative to their number) containing non-geometric visuals and elements that were cropped, than there were with just geometric decorations. I guess what it means, is that it is more riskier to have non-geometric visuals and elements (typically window decorations) than those that are "purely geometric" (Classic look).

There are several themes found in window managers for the X Window System that mimic the Windows 9x look, presumably on the basis of both being based on purely geometric shapes. These themes do still deviate from the original Windows 9x appearance.

----

Usually it's best to err on the side of caution, and I believe you might have already taken a look at Commons:Screenshots#Software. As a matter of practice, I remove visuals and elements of proprietary software as much as possible.

So far, my impression of the situation and of what to do has been such:

• If you don't bother much (or, for various reasons, you can't use a free OS, even from a USB stick or a Live CD/DVD), use the Windows Classic UI environment, because it uses "purely geometric shapes". This is not possible with Windows 7 and newer, because it lacks the Classic look. I don't know what the exact situation is about font smoothing (subpixel rendering), and maybe it would be already nitpicking, but if possible, subpixel rendering should also be turned off, because it's also the result of programming in Windows, and because there can be cases where it's discouraged.
• I don't know what the position is on using the unsigned Clearlooks theme, which the author says is GPL.
  Windows XP themes#Third-party themes has it, that for one, patching a certain Windows file that manages themes to allow the use of unsigned themes is not sanctioned by Microsoft (at least one confirmation of this is that they only sign their own themes); then on the other hand, Microsoft are aware of the practice of people using unsigned themes and recommends users get a new patch, if the old one is in conflict with an update.

And here's just a disclaimer in small and fine print that I'm not a lawyer, nor do I represent any official position by Wikimedia Commons, but my own understanding of all of the above.
-Mardus (talk) 11:28, 3 May 2012 (UTC)

Another and very important point that I forgot to add, is the concept of whether visuals and elements of proprietary software in a screenshot are unavoidable or not. So, for example, window decorations are not unavoidable, as they can be cropped; while scrollbars, drop-down list buttons, etc. are unavoidable. Although I've seen eclectic cases of screenshots of software for Windows, where almost everything proprietary has been extensively supplanted with 'dummy' or non-original non-proprietary elements that only serve the purpose of showing the replaced elements' function.

The threshold of avoidability might also vary from one OS version to another: While it's very clear with Firefox 3.x and Windows XP where the line is drawn, then difficulties arise with Firefox 4.x+ and then in addition with Windows Vista/7+, where there are some UI elements that appear to be generated by free software program code, yet are well-integrated into proprietary window decorations; an example of this is the orange Firefox menu button, which I typically recognize as part of Firefox and not as part of Windows, although I sometimes have doubts.

In addition, I was struck by a rhetorical question, in which if it's possible to make very nearly the same screenshots in free operating systems, then why bother making them in Windows, unless that free software is Windows-only? And if it's Windows only, it could still be run in Linux through Wine, unless the program is something very specific. -Mardus (talk) 12:07, 3 May 2012 (UTC)

Template?

See Commons:Village_pump/Copyright#"De minimis" box template? for a suggestion. Comments welcome :-) Gestumblindi (talk) 18:00, 29 April 2012 (UTC)

Note: {{De minimis}} was later created. Rd232 (talk) 14:17, 14 September 2012 (UTC)

Photo used for illustration

In the section "an example" there's a photo of a car with a poster advertising The Dark Knight. The poster is described as "de minimis". However the photo is only used in two places - here, and at w:The Dark Knight (film). Surely the photo thus fails all the proposed criteria for "de minimis"? Perhaps it would be better not to have an example at all... -195.81.224.200 14:12, 22 November 2012 (UTC)

the photo in itself is perfectly fine. its subject is the car and not the poster. The fact it is used on the wikipedia page for the dark knight might be a problem, still, it is used to say there were posters... theorically, the usage should be removed, in reality, we can probably don't care about it: the copyright owners are not gonna complain over us that wikipedia shows a (copyrighted) poster in a street... Besides, depending the country, it could be fairly legal (according to FoP)... Esby (talk) 16:05, 22 November 2012 (UTC)

Literary works

This page appears to be confusing about the applicability of de minimis to literary works.

The Swedish and Finnish laws clearly talk about artistic works appearing in the background, but make no mention of literary works appearing in the background. The use of literary works without permission from the copyright holder is covered by a separate part of the copyright law which says that you may quote reasonable amounts of text, although not more than needed for the purpose, which probably gives some implicit de minimis in many cases but probably easily goes into the disallowed COM:FU territory.

In other countries, the law often seems to say that a work may appear in the background, without specifying whether the work is an artistic work or a literary work, so many other countries also seem to have a de minimis provision for literary works. --Stefan4 (talk) 23:18, 16 May 2013 (UTC)

File:Banners CIMG0256.jpg

This image is listed as an example of de minimis, but aren't these banners all below the threshold of originality anyways?   — C M B J   07:32, 30 May 2013 (UTC)

No. At least some of them contain artwork which is copyrightable. --Stefan4 (talk) 09:00, 30 May 2013 (UTC)

Ákvæði 1. mgr. gilda ekki um tölvuforrit og gagnagrunna

• 

  Is it illegal to include this photograph in a computer program because of the newspapers?

• 

  Is it illegal to include this photograph in a database because of the map, the photo of the dog and other things?

• 

  Is it illegal to include this photograph in a computer program or a database because of the witches and other items?

Icelandic law explicitly exempts computer software and databases from the de minimis exception. Does this mean that the above images can't be included in computer software or databases? In that case, the images don't have an acceptable licence. Is there something else in the law which I'm missing which might save the Icelandic de minimis cases, or do we have to delete them all?

Article 16 contains a separate de minimis exception for FOP cases which doesn't prohibit use in computer software or databases, so Category:Panoramics in Reykjavík is safe. --Stefan4 (talk) 18:31, 27 October 2013 (UTC)

I've added Article 16 to the text. I think that the economic consequences for the copyright holder should be considered in determining whether these images violate the copyright; in my opinion, there are none. This is probably comparable to the UK law (Section 28A). Per [2], parts of computer programs and databases are not to be copied without the permission even transiently or incidentally. --Eleassar ^(t/p) 21:33, 28 October 2013 (UTC)

The article in the UK law is irrelevant here. The UK law tells that Internet service providers do not violate copyright when they distribute copyrighted information on websites to customers browsing those websites (point a). It also means that you aren't violating copyright if you produce a copy of a work for the purpose of using it under a fair dealing claim, even if it is used out of context in the production process (point b). --Stefan4 (talk) 00:08, 31 October 2013 (UTC)

I don't understand why it would be irrelevant. It seems analogous to me. In any case, you may also ask at COM:VPC. --Eleassar ^(t/p) 11:06, 31 October 2013 (UTC)

Is this policy being interpreted correctly?

A recent case has given me cause to doubt that a significant number of administrators are properly following this policy as it written/illustrated, so I'd like others to comment. Before anyone complains that this is an issue for COM:UD rather than RFC, let me clarify why it is not - I am not particularly bothered if the particular image I am about to refer to is restored or not. What I am bothered about is the fact the interpretations that were made in order to delete the image in the name of this policy, would apply to several thousand other almost identical images which are currently hosted on Commons, none of which to my knowledge have ever been described as an outstanding issue (and if they are, it obviously does become an issue).

This concerns an image taken in the UK, uploaded to Flickr by someone on a CC license (source), and then uploaded to Commons by me. For the avoidance of doubt, as well as just presenting the url, I will also give you the following diagram, which shows what I believe are the relevant areas/elements/proportions:

• 

In the above image, the grey box was a double-decker bus. The brown area was an advert panel of the type found on most buses in the UK. The yellow area was a photo, which as a 2D work would not ordinarily be allowed under Freedom of Panorama in the UK, without a claim of de minimis. The black area shows the full frame of the image (resolution 3797 x 2703). There was also one other image, but it was of similar proportions, so I won't bother reproducing it here. There was admittedly one issue with the images which this policy does suggest is an issue, and that was the title - they were of the form 'X bus', where X referred to the advert. I would like to point however that it was not my intention to use the titles they were given at Flickr here, they were merely the default chosen by the upload tool, and I had merely not got around to renaming them to something more suitable. It should also be noted that, rather than being indicative of intent, this particular Flick user is apt at using all sorts of titles, seemingly choosing whatever takes his fancy at the time, leading in many cases to the use of titles that have absolutely nothing to do with the apparent subject of the image. Being solely interested in the buses myself, I uploaded these images to Commons to illustrate the buses, both their physical attributes (model, age, configuration, etc) and their operational details (location, operator, identifying marks, etc). For the purposes of UK FoP, I was obviously claiming de minimis for the yellow area, the contents of which didn't interest me in the slightest.

Some admins apparently disagreed though:

• Fastily (talk · contribs), the deleting admin in this case, claimed that "the advertisement comprises a big portion of the side of the bus." This appears to me to be a confusion of the purpose of the policy - the intent of de minimis is not to measure the size of the white portion (the advertisement), it is to measure the size of the yellow portion (the non-free element), which in this cases, is obviously not a "big portion" of anything, not the side of the bus, or the image as a whole.

• Fastily also claimed that he had "observed literally hundreds of other DRs in which images have been deleted for incorporating much less non-free content than these images". He gave no examples, so I cannot verify that claim, but what do others think? Again, there is the confusion over whether he thinks the white area or the yellow area is non-free content. Given the white area is free, then how does the relative size of the yellow portion, compare to either other DRs, or indeed the examples given in the policy? It seems to me to be almost exactly the same size as the portion of non-free content given in this example image.

• Fastily also claimed that "the image is of high resolution, meaning someone could (e.g. extract the advert from this image) use it for unauthorized personal gain." This appears to me, to directly contradict the entire section, COM:DM#Crops of de minimis images, and therefore shouldn't have even come into it.

• Jarekt (talk · contribs) claimed that the "images are of the identical buses from similar angle. The only thing distinguishing them from each other are bus size copyrighted billboards on their sides. It is rather clear that the billboards are the main subject of those photographs. as such it crosses the threshold of de minimis; nobody has to crop them to view the copyrighted material."

• AFBorchert (talk · contribs) claimed "These are all classical examples where de minimis does not apply as the focus is obviously on the copyrighted advertisements. They are not incidental but very much the reason why these photographs were taken. This is obvious from the titles of these photographs" and later "Given this series and the titles, it is for me obvious that these ads were the primary motivation to take these shots. Hence, their inclusion is not incidental and thereby we have a problem. If you would photograph a larger street scene with such a bus, it would be incidental. But all these shots focus on the ads, presenting the displaying side in full format just that the bus fits into the frame."

• In both of these cases (Jarekt and AFBorchert), there is again the apparent confusion between the white area and the yellow area, undermining their conclusions about size and framing. Apart from the title, which as said, was fixable, they presented no evidence to support the claims that the main subject is the advert. If the Flickr user really wanted to photograph the advert, why would they take care to frame the entire bus? And if their only interest was in photographing bus adverts, why does their Flickr stream contain images of buses without adverts? And why would buses only be a tiny proportion of all their photographs (or for that matter, adverts on any object)? Both of these admins appear to have either overlooked the parts of this policy that deal with such contextual issues, or if not, they simply restricted their analysis to an implausible subset (2 out of 45,000+ in the case of the Flickr stream, 2 out of 5,000+ in the case of similarly framed/proportioned bus images on Commons)

• Taivo (talk · contribs) claimed that "The deleted paintings were fully and well seen. The photos were big (4058×2514) and gave good overview about paintings.". I personally cannot really understand what Taivo was trying to say here, but it doesn't seem to me to relate to anything in this policy, and certainly even suggests that they too are wrongly considering the possibility of cropping. They perhaps are thinking about the relative proportions, but again, it's not clear whether they, like the others, have appreciated the difference between the white and the yellow areas.

And quite separate from what these admins did say, what is concerning to me is how many parts of this policy they didn't refer to when making these judgement. As said, none of them commented on the fact that, apart from the easily fixed titles, there was no other evidence to think the yellow portion was the reason for the image, not on the part of the Flickr user, or me. They weren't in any advert related sets at Flickr, they weren't in any advert related categories/galleries on Commons. They weren't being used on Commons or any Wikipedia project in any way that remotely related to the advert. They didn't mention at all the fact that if the yellow portion was removed, that clearly wouldn't have affected the utility or usability of the file one bit, as it was currently being used (although obviously, it would no longer meet their unsupported claims about what is was taken for). And not once did any of them consider the basic fact of life that capturing an advert on the side of a bus is quite obviously unavoidable if your intention is to photograph the actual bus. All of which, as this policy says, is evidence that de minimis does apply.

So, in summary, are Commons admins like the ones above correctly interpreting this policy, but just not being clear enough in their explanations? Were the judgements detailed above typical, or atypical? Or are they not interpreting it correctly, and I have just got it all completely wrong? And in either case, which parts need to be changed to make it clearer for everyone? Should I, for example, include the above diagram in the example gallery? As a better example of what most people here would, or would not, define as the main subject, or consider to be not enough/too much non-free content as a proportion of the whole? Thoughts? Ultra7 (talk) 15:57, 21 January 2014 (UTC)

I have been independent of discussions of this so far. The key words from this policy are "accidentally and incidentally", so if the creative element does not appear (or is otherwise defined as) to be taken deliberately or made a key feature of the photograph, then the photograph may fall under this policy. In this context the views supporting deletion seem reasonable to me, even if the "percentage" of the photograph that contains the creative work is relatively small.

If you think DM is not clear enough, then I would support adding illustrations to show this is indeed a complex area of copyright law. --Fæ (talk) 16:12, 21 January 2014 (UTC)

What, other than the name, is the context you refer to? The image could have easily been renamed, so what else exactly was there in this context that you think would cause a reasonable person to make the assumption that inclusion of the yellow portion was a deliberate choice, or intended to be a key feature, of this photograph? The use of adverts like this on UK buses is so common that, to me, expecting a photographer to wait for a bus without an advert on it, especially if their intent is to capture a specific type of bus in a specific operating environment, is decidedly unreasonable. And capturing adverts is always going to be accidental and incidental, in those cases. If it's not the name, then your assumption appears to apply to every photograph of a bus on Commons where the intention was to photograph a bus and the country was one where FoP applies. Ultra7 (talk) 17:23, 21 January 2014 (UTC)

I'll give you a practical example. After a (very quick) scan of the thousands of bus photos on commons, I found the following two photos. Thy were taken by the same uploader, in the same town. While not identical bus models, they are operated by the same company.

• 
• 

The only contextual difference I can see between these two, and the original example, is the name, and I guess the angle. And despite the difference in angle, the work is still clearly visible and forms a similar percentage of the frame (and if you dispute any of that, I am quite sure if I looked a little longer, an example of two buses taken from the same angle to the original could also be found). So, if the name isn't the only thing you were referring to as context, then why would a reasonable person assume there was any difference in intent between these two images? Why would a reasonable person ever assume that the capture of a 2D work in the right hand photo was a deliberate choice, intended to be a key feature of the photo? Ultra7 (talk) 17:52, 21 January 2014 (UTC)

Yes the line between DM and not-DM is unclear to everyone, including lawyers. That's why I believe that maintaining an illustrative case book on Commons is useful; if nicely maintained it might even fulfil our project aims by getting used to teach IP law. --Fæ (talk) 09:10, 22 January 2014 (UTC)

If those are supposed to represent pictures of ads then the photographer is doing it wrong. Given all these images represent the entirety of a bus it seems clear the bus is the subject and the ads are incidental. However, I am uncertain as to how you accidentally take an image of something when it is right there in your face. Nevertheless, the notion that someone would bother claiming copyvio for a bus advert and a court would side with them when the advert is still on the bus seems so remote as to be absurd. The only situation where there might be an issue seems well covered by the cropping argument. 131.137.245.206 18:31, 23 January 2014 (UTC)

I don't think we can give out rules based on percentages for photograph incorporating a de Minimis rationale: What is important is the subject of these pictures, what ever the copyrigthed elements are: ads, non free logo, architectural building in background, art statue, etc. If you have Putin before the Louvre Pyramid, on an official visit, the Louvre Pyramid will be DM, if you use this picture on the Putin article, it will be fine, if you use it to talk about the Pyramid, it will not be fine; because the subject will change.

Note: Someone spoke of Fastily, I don't see Fastily actions as trustworthy, because he is more interetested in speedy handling the DR than in acting correctly...

Esby (talk) 17:00, 25 January 2014 (UTC)

Incidental decoration for utilitarian objects

Refer to Commons:Deletion requests/File:4X-AHC Martin Harrison.jpg.

I have added this case to the gallery of examples, as it takes our understanding of the limits of de minimis a step forward. As, in this case, even when a copyrighted artwork is the central focus of the photo, there can be a rationale that it falls under de minimis if it is incidental to the photograph of the mass produced utilitarian object it decorates. The same rationale should apply to other forms of standard transport (cars, trains, motorbikes) as well as photographs of decorated objects where the photograph can reasonably be said to be of the object, not the decoration, even though the decoration is clearly included in the central focus.

If this approach to de minimis is established (perhaps we need a few more DRs to result in keeps?) then this would be worth expanding in the main text. --Fæ (talk) 14:21, 7 July 2015 (UTC)

Proposal to clarify de minimis policy with respect to "ancillary" or "incidental" reproduction of copyrighted works

The following discussion is archived. Please do not modify it. Subsequent comments should be made in a new section. A summary of the conclusions reached follows.

After analysis of the votes the proposal is not adopted. ~riley (talk) 23:47, 26 February 2018 (UTC)

---

Based on a lengthy discussion of the distinction between ancillary/incidental usage and de minimis at Commons:Undeletion_requests#File:Petit_tigre_on_the_top_of_Manhattan.jpg, it is clear that the current guidelines within this policy for where the usage of a (complete) photograph may at different times make a photograph uncopyrighted and at other times copyrighted unrealistic. Previously interested parties @Clindberg, Jameslwoodward, Stefan2, and Pokéfan95: . --Fæ (talk) 12:31, 11 May 2016 (UTC)

Proposal to add text to avoid hosting images where there is significant doubt for free potential reuse

The following text is proposed:

• de minimis applies to photographs which include copyrighted works where for all reuse purposes that can be envisaged, there is no significant doubt that usage of the copyrighted works within the context of the complete photograph will be seen as incidental. This includes cases where the copyrighted works are a major component of the photograph. The reuser should be notified when cropping the image may infringe copyright.

The "major component" qualifier is to address examples such as the bottle label case of Ets Hokin v. Skyy Spirits, where a common interpretation is that the bottle label is not de minimis, however can be considered uncopyrighted as a utilitarian object. It is reasonable for the Commons de minimis policy to include these cases, or at least make a better bash at explaining when that can apply. --Fæ (talk) 12:23, 11 May 2016 (UTC)

•  Support as proposer. --Fæ (talk) 12:23, 11 May 2016 (UTC)

Fæ, could you indicate where your proposed paragraph would appear in the page and what text it might replace (if any). I don't see how this very complex mix of legal and policy justification can be boiled down to one or two sentences. Why does introducing the term "incidental" (without further explanation) help if you admit in the DR that "the word and its use in legal literature is very confusing".

The final sentence on cropping is grammatically poor, and I feel both not necessary or good policy. Do you think that all pictures on Commons that may have de minis issues need a warning template about any possible cropping someone might attempt, or is this warning only to appear if someone uses Commons tools to crop the image? I'm not sure either are supportable in policy, since there must be many of our images that have de minis concerns yet do not get sent to DR for this to be assessed. I don't have a problem with a warning template that people can choose to add if they think it will be helpful (much like our personality rights template) but don't think we can start making this mandatory. What people do with an image once it's on their hard drive is not our concern.

I note Carl states "A photo of a city skyline which contains recognizable, copyrightable buildings would not be de minimis either", yet he seems to think we would keep it so I'm not clear on what grounds. Is the problem that this policy page is being used to describe several related legal issues, and not just "de minis"? When my File:Tower Bridge view at dawn FOP.jpg image was used to illustrate the EU FoP campaign, I was under the impression that the original photograph would still be legal under de minis even if the UK no longer had FoP. But perhaps this is not the case. I would appreciate if Carl could comment on whether my Tower Bridge view would be retained on Commons if there was no FoP in the UK. I don't really feel that the skyscrapers are "incidental" (i.e. "subordinate or secondary in importance or position" or "occurring by chance") since I pointed my camera in that direction and created the panorama that wide deliberately in order to include them all (though I have no ability to exclude, say, the Walkie Talkie on its own). -- Colin (talk) 07:26, 12 May 2016 (UTC)

I'll wait for other views before saying any more than I already have. --Fæ (talk) 11:48, 13 May 2016 (UTC)

Extended content

Not sure I followed the tiger toy case, in which a copyrighted toy tiger was photographed in ways that either featured the tiger as a subject or included the tiger intentionally, but not to feature it. I do not know what to say about such things. I was reading around because of my own problem understanding de minimis, and I wonder if my situation is similar. I have a video up for deletion after complaints. The situation is that I have a 4 minute video that ends with a five-second logo featuring the video's copyright holder. The logo animation at the end is intended to be non-free content, and I imagined de minimis like an incidental label on a wine bottle or any other product. As discussed above, there is a portion of the video which entirely features the logo, as much as any photo clearly focused on a prominent label. If the logo were separated and presented as its own media artifact, it should be non-free, but just like with a label, I thought that it would be de minimis. As with anything on Commons, de minimis content might be removed from work that is otherwise free, and some people have suggested sharing a version of the video with the logo cut. I got this video from an institution, and I expect other people can request other videos and all sorts media featuring products with logos and I would like clarity in negotiating these things just because it would be a lot of labor to remove labels and also to negotiate with organizations telling them that labels are removed before upload. I expect that any Commons user might make derivative versions of files excluding de minimis content, but if they do, if it conforms to Commons and copyright rules, I would like for the original version to be on Commons as well. From a legal perspective I hardly know what to say or do in this case, except that I care about the outcome and will adapt my future Commons participation with influence from the outcome of this discussion here. Blue Rasberry (talk) 18:49, 27 May 2016 (UTC)

Bluerasberry, I think you should remove this query/request from Fae's proposal. It really has nothing to do with his proposal. If you are confused about this policy page, and want to present an example, then start a new section. But also this page isn't a forum for deletion discussions or copyright questions, but for suggesting changes to the policy. -- Colin (talk) 09:37, 28 May 2016 (UTC)

Colin I do not understand any of this well enough to perceive the difference in the cases. They seem the same to me. Sorry for the confusion. Blue Rasberry (talk) 11:26, 28 May 2016 (UTC)

I think you completely misunderstand what this talk page and this section are for. This is the talk page for refining the attached policy page, and Fae's proposal is a change to that. You seem to have questions about de minimis and whether they apply to a video, and this is not the correct place to post them. -- Colin (talk) 12:50, 28 May 2016 (UTC)

• Okay, I will try this - Change "photograph" to "works"

• de minimis applies to works which include other copyrighted works where for all reuse purposes that can be envisaged, there is no significant doubt that usage of the copyrighted works within the context of the complete works will be seen as incidental. This includes cases where the copyrighted works are a major component of the work being considered. The reuser should be notified when cropping the work may infringe copyright.

This should apply to documents, videos, or any other kind of media. Commons hosts books, papers, and reports which contain art, and increasingly Commons hosts video. A free license on a Commons file does not imply that remixers can extract the de minimis components for reuse with the license of the source.

The text that I just copied and changed is still not clear to me. Can it be reworded with sorter sentences? Even with context above I do not follow. Blue Rasberry (talk) 14:09, 28 May 2016 (UTC)

Commons does not host "hosts books, papers, and reports". It only contains multimedia files. Anything essentially textual belongs on some other project. -- Colin (talk) 15:44, 28 May 2016 (UTC)

Colin I do not follow. If you have any idea what I am failing to understand then point it out. From what you say, I suppose Commons does not host pictures or videos either, since it only hosts multimedia files of those things. I am not sure what you are getting at - any kind of file might be a digital version of a copyrighted work that contains another de minimis copyrighted work.

• Category:Documents
• Category:Books

I think that the relationship with Wikisource and other projects is that Commons hosts the books, papers, and reports, then Wikisource develops derivatives of the files on Commons. Do you think that de minimis rules should not apply to files containing text? Is there a reason to not apply de minimis rules to everything Commons hosts, instead of only to images? Blue Rasberry (talk) 16:09, 28 May 2016 (UTC)

• TBH, I think that while we usually end up with the correct conclusion, many editors completely misunderstand the concept of 'de minimis', and this page could do a better job of clarifying it in general. Editors often (incorrectly) believe that the use of a work can be de minimis purely because it makes up a very small portion of the work in which it is used. This is quite incorrect... I recently wrote a short refutal of this on my talk page because of arguments at an ongoing DR. I think this text places to much emphasis on the term 'incidental'... it's not difficult to envision cases where the inclusion can be deliberate but still 'de minimis' (our photos of the Louvre Pyramid, for example, or if a photo was deliberately composed, but the 'used' work was intentionally placed far out of focus... i.e. 'I picked it for the color balance, not the content'). Revent^talk 11:20, 5 August 2016 (UTC)

Proposal to remove guidelines on constrained textual or illustrative context or reuse

It is proposed that the following section is removed:

the file is in use to illustrate X
the file is categorised in relation to X
X is referenced in the filename
X is referenced in the description

The reasoning to remove this text is per the above referenced undeletion discussion, and due to it remaining highly contentious and potentially in conflict with the policy COM:Project scope where there is a requirement for there to be no "restrictions on the creation of derivative works (except for copyleft)". Commons has a history of bending the main policies to allow educational photographs where crops may be non-free, however images where simply changing the textual context, such as using it in a certain Wikipedia article, or someone changing categories in the future would invalidate the copyright statement, are so uncertain that the photographs must fail the COM:Precautionary principle as there must be persistent significant doubt as to copyright status. --Fæ (talk) 12:23, 11 May 2016 (UTC)

•  Support as proposer. --Fæ (talk) 12:23, 11 May 2016 (UTC)
•  Oppose context is always relevant and needs to be considered by reusers. A photo does not become non-free, because it can be used in contexts that make it non-free. --Sebari (talk) 21:18, 11 May 2016 (UTC)
•  Oppose – it should be quite obvious that simply changing the textual context doesn't have any impact on whether de minimis actually applies or not; the current policy makes it clear that fulfilment of those points may only indicate the likeliness it does.    FDMS  4    12:30, 13 May 2016 (UTC)
•  Oppose as per Sebari's rationale.--Mariordo (talk) 02:43, 6 September 2016 (UTC)

Results

Results: 4 voters / 1 support / 3 opposes = 25%  Support 75%  Oppose

Conclusion

Overall lack of support or community interest in this matter, closure recommendation is to not implement. ~riley (talk) 23:47, 26 February 2018 (UTC)

---

The above discussion is preserved as an archive. Please do not modify it. Subsequent comments should be made in a new section.

Biased towards (nonfree media) copyright holders

I propose changing most mentions of "copyright-protected" to just "covered by copyright" or "copyrighted". See the GNU Project's opinion on the word "protection" for further explanation. 80.221.159.67 04:15, 5 September 2016 (UTC)

Easier way to determine if something is DM

I think I found a fairly easy way to determine if something is DM or not.

---

1. Would it be worth mentioning the element in a caption of 140 characters?

No: it is most likely DM.

Yes: continue to the next question.

2. Can the picture be cropped to remove the element without making the picture useless or strange looking?

Yes: crop it.

No: continue to the next question.

3. Can the element be blurred or otherwise removed from the picture?

No, the picture will be completely useless: it is most likely not DM.

Yes, and it wouldn't distract too much from the main subject: blur/remove it.

Yes, but it would distract the viewer from the main subject, it's technically difficult or there are ethical concerns: the element is unavoidable, continue to the next question.

4. Is it possible to imagine a picture of the main subject that doesn't clearly show the element, for example by using a different angle, taking the photo when there is snow, at night or otherwise different (light) conditions, by parking a vehicle in front of the element, having an animal or anything else accidentally obscure the element or physically removing the element? (you only need to imagine, it doesn't have to be legal or even physically possible)

No, such a picture could never make sense or be useful: it is most likely not DM.

Yes: if possible, try to create or obtain such a picture. The element is probably not truly DM, but the main subject doesn't fully depend on it either.

---

I've looked at a bunch of random files and it seems to hold up. Occasionally it may produce a result different from what we're used to, but that only appears to be the case because the results are more accurate. 4 questions may seem like a lot, but most cases really are answered after the first question. We could make a flowchart of it. - Alexis Jazz ^{ping plz} 10:19, 12 August 2018 (UTC)

No it does not as it depends on the legislation. In France, for example, the pyramid in front of the Louvre can be included, see COM:DM#France - Freedom of Panorama "de minimis" exception, but this would fail your test (1: Yes, 2: No, 3: No, 4: No). --AFBorchert (talk) 08:55, 13 August 2018 (UTC)

De minimis in video/audio?

It seems most discussion has been focused on visible elements of still images. I'm aware of the previous discussion of video that had a rather narrow focus. Are there more broad/formal guidelines for audio or video media that briefly or incidentally include non-free material? While there are surely lots of case and context-dependent scenarios, examples include: snippets of a song at the beginning or end of a video, non-free music in the background of a video not related to the music (e.g. video of a bird in a park while a band plays nearby vs video of the band at a concert), copyrighted photographs displayed briefly on screen (e.g. in the background during a lecture, or briefly covering the whole screen), or say a video tour of a museum of modern art. Similar to how a picture of Mickey Mouse on someone's t-shirt would be de minimis unless the image was cropped tightly to the image, are brief images or sound elements considered de minimis in the context of a larger work? --Animalparty (talk) 23:12, 18 January 2019 (UTC)

Deletion discussion that turned into a more general COM:VP/C discussion regarding de minimis-related issues with PD-USGov documents

As an FYI, there is an ongoing discussion at COM:VP/C#Third-party copyright material included in PD-USGov documents that concerns interpreting the de minimis policy as it relates to long PD-USGov legal documents containing "incidental" copyrighted material. - Paul^T+/_C 15:18, 2 May 2019 (UTC)

Amicus brief with some guidance

http://www.supremecourt.gov/DocketPDF/18/18-877/117299/20190927131853822_Professor%20Rose%20Amicus%20Curiae%20Brief.pdf is an amicus brief for w:Allen v Cooper but it has some short discussion of how de minimis is determined, which may be of use. Nemo 14:57, 17 November 2019 (UTC)

Improving the section on de minimis under U.S. copyright law

Hi, I would like to initiate a discussion on how to improve the section on the de minimis exception under U.S. copyright law. Our current writeup remains quite 'basic', and I would like to see if we can improve it. Thanks, --Gnom (talk) 08:45, 23 February 2021 (UTC)

I agree that it is extremely basic and, IMO, does not appear to have a strong basis in case law.  Mysterymanblue  10:11, 10 January 2022 (UTC)

The WMF legal department kindly chipped in: meta:Wikilegal/De Minimis Use of Protected Works under US Copyright Law. --Gnom (talk) 15:50, 10 January 2022 (UTC)

I have read both the Wikilegal page and the first few pages of "Images of Public Places: Extending the Copyright Exemption for Pictorial Representations of Architectural Works to Other Copyrighted Works" (Inesi), which in my opinion offers a much clearer view of the issue.

Inesi points out that there are three contexts in which de minimis is used in copyright law:

• As an element of substantial similarity: In order for copyright infringement to occur, the infringing work must be "substantially similar" to the original. However, if a de minimis amount of the original is copied, no infringement has occurred. Examples:
  • Sandoval v. New Line Cinema Corp. (2nd circuit): when artworks "never appear in focus, and except for two of the shots, are seen in the distant background, often obstructed from view by one of the actors," in a film, only a de minimis amount of copying has occurred.
  • Gordon v. Nextel Commc'ns (6th circuit): "when two copyrighted dental posters appeared 'fleetingly,' and 'primarily out of focus' in the background of the defendant's text messaging commercial)", only a de minimis amount of copying has occurred.
  • Ringgold v. Black Entertainment Television (2nd circuit): "'[i]n some circumstances, a visual work... might ultimately be filmed at such a distance and so out of focus that a typical program viewer would not discern any decorative effect,' and thus would qualify for de minimis treatment"
  • However, Ringgold also found that a clearly visible, slightly blurred poster present in a television show for 26.75 seconds was more than a de minimis level of copying. (See here for a snapshot from that episode in comparison to the quilt.)
  • Recently (and outside the scope of Insesi), the Ninth Circuit in Bell v. Wilmott found that an image uploaded to a website that was only accessible by a specific "pinpoint" URL or a reverse image search was not a de minimis level of copying because the image was an exact reproduction. (source).

When considering substantial similarity de minimis, the important factor is the degree to which the original work was copied, not how the work is used. If a work is reproduced in its entirety, there is no possibility of the amount of copying being de minimis, even if the work is used in an "unimportant" way. My understanding is that, under substantial similarity analysis, a painting in the background of a photo is not de minimis, even if it is not the main subject, because the degree of copying is total.

• As an affirmative defense: An affirmative defense is "a defense in which the defendant introduces evidence, which, if found to be credible, will negate criminal liability or civil liability, even if it is proven that the defendant committed the alleged acts." (source). So de minimis as a defense allows a defendant to negate a claim of copyright infringement after they have been proven to have committed it. In these cases, "although all elements of infringement are present, the infringing use is insignificant". Note that the key focus is whether the use of the work is significant, unlike in substantial similarity where we considered whether the degree of copying was significant. Examples:
  • Davis v. The Gap, Inc. (Second Circuit): the use of copyrighted glasses in an ad was not de minimis use because they were "highly noticeable".
  • Knickerbocker Toy Co. v. Azrak-Hamway International (Second Circuit): A copyrighted toy reproduced in a pamphlet was de minimis because the pamphlet was never used (i.e. distributed).

De minimis as an affirmative defense poses some issues. For Wikimedia Commons, the precedent established in Knickerbocker is essentially useless. A free cultural work is not truly free if it can only be used in insignificant situations. The Knickerbocker pamphlet could not be hosted on Wikimedia Commons because our distribution of it would likely be significant, and reusers would be hampered by the requirement that they not be allowed to do anything significant with it. When work A is used de minimis within work B, work B may be acceptable for hosting on Commons. However, if work A is used within work B and the use of work B must be de minimis to negate infringement, work B clearly cannot be hosted on Commons.

More troublingly, though, use of de minimis as an affirmative defense is not widely accepted by the courts. In Woods v. Universal City Studios (Southern District of New York), "the court refused to consider the fact that the copyrighted work in question appeared only briefly in the defendant's film, noting that '[w]hether an infringement is de minimis is determined by the amount taken without authorization from the infringed work, and not by the characteristics of the infringing work.'". The Ninth Circuit essentially explicitly rejected de minimis as an affirmative defense in Bell v. Wilmott, writing that they have "never recognized a de minimis defense based on the allegedly minimal use of concededly infringing material... [rejecting the] “technical violation” theory of a de minimis defense" (source). Given the shaky grounds for de minimis as an affirmative defense, I do not believe we should be allowing it on Wikimedia Commons.

• As a part of fair use: Fair use is not allowed on Commons, but it is useful to discuss de minimis in this context so we can determine what sorts of de minimis are not allowed. There are four factors that go into a determination of fair use:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

In Amsinck v. Columbia Pictures, a judge in the Southern District of New York determined that the brief appearance of a copyrighted mobile in a film was de minimis as thus had a minimal effect on the market value of the mobile, writing "[i]n situations where the copyright owner suffers no demonstrable harm from the use of the work, fair use overlaps with the legal doctrine of de minimis, requiring a finding of no liability for infringement." However, again the use of de minimis in fair use has been discredited by the Second Circuit in Ringgold.

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One issue I see right off the bat is that we are focusing a lot of this licensing help page on what exactly a photograph is being used to represent. However, the purpose behind the use of an image appears to be more of a fair use issue, and certainly is not at play with substantial similarity. We should therefore really be deemphasizing purpose-driven rationales like "because the copyrighted poster is not the subject of the illustration..." and instead focus on content-driven rationales like "because the copyrighted poster is in the background of the image..."

I would like to find specific examples in case law, preferably with visuals, that we can put on this page. Currently, we have a bunch of examples that we curated ourselves and do not appear to have a solid basis in case law. The Ringgold example is one, but I would like others.

Finally, I dislike that the only case we mention on the page is Ets-Hokin v. Skyy Spirits, Inc. This case is not mentioned by the Wikilegal page, the paper I just mentioned, or really any other authority on de minimis. The reason is that it is not a case about de minimis. The phrase de minimis does not even appear in its text. The purpose of the case was to determine whether photographs of a Vodka bottle are copyrightable, and it briefly mentioned that the photographs are not a derivative work of the label because they were based on the bottle as a whole. The reasons for this finding are not explained in detail, and de minimis may or may not have been a factor -- I personally think that the ruling was based on the fact that the photographs were not sufficiently transformative on label, not because the label was a de minimis part of the image. But the nitty gritty of that is not particularly important. There is no justifiable reason for us to put this non-de minimis case on this page.  Mysterymanblue  21:35, 10 January 2022 (UTC)

The reference to Ets-Hokin was added in this revision by King of Hearts.  Mysterymanblue  21:54, 10 January 2022 (UTC)

Proposal 1: Set priorities straight

Make changes as follows:

The United States courts interpret the de minimis defense in three distinct ways:

1. Where the extent of copying falls below the threshold of substantial similarity (always a required element of actionable copying);

1.2. Where a technical violation is so trivial that the law will not impose legal consequences;

2. Where the extent of copying falls below the threshold of substantial similarity (always a required element of actionable copying); and

3. In connection with fair use (not relevant here, since Commons does not allow fair use images).

It is the first of these that is often of particular concern on Commons.

Reasoning: It is necessary to clarify that the most important part of de minimis in the context of copyright law is in the context of substantial similarity, while "technical violation" de minimis is less mainstream and is directly rejected by the ninth circuit.

Per the Wikilegal page: "It is critical to note that there are differences in how various circuit courts think about de minimis use. One of the most apparent differences appears to be in how analytical or subjective a circuit tries to be when it measures de minimis use. For example, some circuits use the Second Circuit’s approach from Ringgold to measure how significant or insignificant the copying is, while others, like the Ninth Circuit, say that use “is de minimis only if the average audience would not recognize the appropriation.” Both of these perspectives are ultimately concerned with determining if the amount of copying was too much or went too far in the eyes of the court."

On the other hand, the technical theory of de minimis is not widely accepted by the courts. In Woods v. Universal City Studios (Southern District of New York), "the court refused to consider the fact that the copyrighted work in question appeared only briefly in the defendant's film, noting that '[w]hether an infringement is de minimis is determined by the amount taken without authorization from the infringed work, and not by the characteristics of the infringing work.'". The Ninth Circuit essentially explicitly rejected de minimis as an affirmative defense in Bell v. Wilmott, writing that they have "never recognized a de minimis defense based on the allegedly minimal use of concededly infringing material... [rejecting the] “technical violation” theory of a de minimis defense" (source).  Mysterymanblue  22:26, 10 January 2022 (UTC)

•  Support  Mysterymanblue  22:26, 10 January 2022 (UTC)

De minimis in screenshots

I found another example of de minimis, but when I looked for the definition of "de minimis" it only refers to photographs. What is the screenshot equivalent? Qwertyxp2000 (talk) 01:24, 1 June 2022 (UTC)

Here is the example. I just felt putting as a thumbnail did not make sense. Qwertyxp2000 (talk) 01:25, 1 June 2022 (UTC)

I don't know why I made this bad question... Copyrighted features in screenshots should be blurred. It isn't deminimis at all! It is more something like "Does this screenshot still make sense even if all the copyrighted parts are blurred out? Is there a page that does something like that? Qwertyxp2000 (talk) 03:22, 7 June 2022 (UTC)