Commons:Derivative works/ms

From Wikimedia Commons, the free media repository
Jump to navigation Jump to search
This page is a translated version of a page Commons:Derivative works and the translation is 11% complete. Changes to the translation template, respectively the source language can be submitted through Commons:Derivative works and have to be approved by a translation administrator.
Outdated translations are marked like this.
Other languages:

Shortcuts: COM:DW • COM:DERIV

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.
This page in a nutshell:
  • Kecuali anda mempunyai kebenaran daripada pemegang hak cipta, atau dalam keadaan di mana ini tidak terpakai seperti yang dihuraikan di bawah, jangan muat naik karya yang diperoleh daripada karya bukan bebas lain ke Commons, atau mereka akan dipadamkan.
Copyright rules
Pokok keputusan untuk karya-karya turunan di Wikimedia Commons. Nota: penyederhanakan tidak lengkap; terdapat pengecualian.
Pokok keputusan untuk karya-karya turunan di Wikimedia Commons. Nota: penyederhanakan tidak lengkap; terdapat pengecualian.

Banyak karya kreatif adalah hasil kerja dari sesuatu yang lain, berhak atas hak cipta mereka sendiri. Sebuah karya turunan adalah satu yang bukan sahaja berdasarkan pada karya sebelumnya, tetapi juga mengandungi kandungan baru, kreatif yang mencukupi untuk memberi hak cipta sendiri. Walau bagaimanapun, jika karya yang mendasari masih dilindungi hak cipta, pemegang hak cipta asal juga mesti memberi lesen kepada karya yang mendasar untuk digunakan semula. Dengan kata lain, karya turunan bukan hanya karya yang "berasaskan" pada karya lain, sebuah karya turunan dianggap sebagai karya baru kerana sejumlah besar kreativiti tambahan yang masuk dalam pengeluarannya - semua karya berikutnya berdasarkan pada karya lain yang sebelumnya tetapi tidak mempunyai kandungan kreatif baru yang besar hanya dianggap salinan karya itu dan tidak berhak untuk perlindungan hak cipta baru sebagai hasilnya dan tidak boleh dirujuk sebagai "karya turunan", kerana ini mempunyai makna yang sangat spesifik dalam undang-undang hak cipta.

Dalam kedua-dua kes, kecuali karya yang mendasari berada dalam domain awam atau terdapat bukti bahawa karya yang mendasar telah diberi lesen bebas untuk digunakan semula (contohnya, di bawah lesen lesen hak cipta Creative Commons), pencipta asli karya mesti secara jelas membenarkan salinan / hasil kerja sebelum ia boleh dimuat naik ke Commons.

Ringkasnya: anda tidak boleh mengesan gambar kreatif yang dilindungi hak cipta orang lain dan memuat naik gambar itu ke Commons di bawah lesen percuma baru kerana pengesan adalah salinan tanpa kandungan kreatif baru; sama seperti, anda tidak boleh membuat versi filem buku yang baru anda baca tanpa kebenaran penulis, walaupun anda menambah bahan kreatif baru yang substansial kepada storyline, kerana filem memerlukan kebenaran penulis buku asal - jika izin tersebut diperoleh, bagaimanapun, filem itu mungkin akan dianggap sebagai hasil karya yang berhak atas perlindungan hak cipta novel sendiri. "Derivative", dalam erti ini, tidak hanya bermaksud "berasal dari", ia bermaksud, "berasal daripada dan termasuk kandungan kreatif baru yang berhak atas hak cipta baru".

Apakah kerja turunan?

Foto ini adalah karya turunan (patung Venus de Milo dianggap sebagai karya asas): artis itu diketahui telah meninggal dunia lebih dari 100 tahun yang lalu, jadi patung itu berada dalam domain awam - tidak ada masalah hak cipta di sini dengan syarat penulis foto (yang merupakan karya turunan) melepaskan hak cipta dengan lesen yang sesuai. ]-1[]

Karya-karya derivatif, menurut Akta Hak Cipta AS 1976, Seksyen 101, didefinisikan sebagai berikut:[1]

"A 'kerja turunan' adalah sebuah karya berdasarkan satu atau lebih karya yang sudah ada, seperti terjemahan, susunan muzik, dramatizasi, fiksi, versi filem filem, rakaman bunyi, pengulangan seni, pengabek, kondensasi, atau bentuk lain di mana sebuah karya boleh diubahsuai, diubahsuai atau disesuaikan. Kerja yang terdiri daripada revisi editorial, catatan, penyempurnaan, atau pengubahsuaian lain, yang secara keseluruhan mewakili karya asli penulis, adalah 'kerja turunan'".

In short, all transfers of a creative, copyrightable work into a new medium (i.e., from book to movie) as well as all other modifications of a work whose outcome is a new, creatively original work (e.g., from Shakespearean play into a modern rendition of a Shakespearean play with new wording or characters) are considered derivative works entitled to their own, new copyrights. Who is allowed to create such works? According to 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".

Unlike an exact copy or minor variation of a work (e.g. the same book with a different title), which would be considered a mere copy and would not result in 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 also included in the book, the copyright to which is owned by the Tolkien Estate. The original Estate copyright still holds, and then the annotations also acquire a new and independent copyright of their own.

Likewise, the corporation that holds the copyright to Darth Vader (i.e., Walt Disney) has the exclusive right to create or authorize any derivative works of that character, including photographs or drawings of him which portray him in novel and creative ways, since (as court decisions put it) that is one aspect of the copyright holder's work that they might want to exploit commercially. In the same manner, anyone can make a movie based on The Bible, and may make their own movie called "The Ten Commandments" based on the Biblical chapter Exodus, but may not make a new version of the 1956 film, "The Ten Commandments", even with substantial new creative input, without getting permission of Paramount Pictures (the copyright holder).

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 does not 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, nor drawing, nor sculpting (but see Commons:Freedom of panorama).

Locations such as theme parks usually allow photography and sometimes even encourage it even though items of copyrighted artwork will almost certainly be included in visitors' photos. Such policies, however, do not automatically mean that such photos can be distributed under a public domain dedication or a free content license; the intent of a venue allowing photography may be to facilitate photography for personal usage and/or non-commercial sharing on social networking sites, for example. (See this discussion.) Also, the legal concept of de minimis can apply in such a setting: if the subject of your theme park photograph is your daughter eating an ice cream but someone in a Mickey Mouse costume can be seen in the background, this is not considered infringement nor a derivative work so long as it is clear from the photograph that you are interested in the girl and the frozen treat rather than the oversized rodent, and you may even market that image commercially (though you must be sure that Mickey really is "de minimis" and his presence must not make that image more useful, more interesting, or more marketable than it would be without him).

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.

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 infringement on Disney's copyright of Pooh by virtue of copying via the photograph. As virtually all photography is considered to involve at least a modicum of creativity on the part of the photographer, in fact you may have created a derivative work without permission.

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

Shortcut

No. There are special provisions in US 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; content primarily taken from a U.S. Government work
Note that while the commentary above was apparently written while some language was an amendment which had not then been enacted, it was subsequently enacted and can be found in 17 USC 101.

Sculptures, paintings, action figures, and (in many cases) toys and models do not have utilitarian aspects and therefore in the United States (where Commons is hosted) such objects are generally considered protected as copyrighted works of art. A toy airplane, for example, is mainly intended to portray the appearance of an airplane in a manner similar to that of a painting of an airplane.[2] On the other hand, ordinary alarm clocks, dinner plates, gaming consoles— as well as actual, full-scale planes— are not generally copyrightable... though any design painted on the dinner plate would likely be subject to copyright protection, as would an alarm clock in the shape of Snoopy the dog.

It is possible for utilitarian objects to have aspects which are copyrightable, but there is no clear line in US law between works which are copyrightable and objects which are not.[3] A white paper on copyright and 3D printing mentioned several US court rulings that were each about whether a functional object had artistic elements that were "physically or conceptually" separable from the object's functional aspects and therefore copyrightable. The whitepaper suggested a consideration for determining if specific elements of a utilitarian object are copyrightable under US law: if an object has non-functional elements, then those elements are more likely to be copyrightable if the design of the elements was not influenced by utilitarian pressures.[4]

Different countries may have different definitions: German law has a term called Schöpfungshöhe, which is the threshold of originality required for copyright protection. In the vast majority of national jurisdictions, the level of originality required for copyright protection of works of applied arts does not differ from the one for the fine arts.[5] It is higher in Germany, Italy, Japan, Russia, Slovenia, and Switzerland.[5][6] There is no legal definition for this threshold, so one must use common sense and existing case law.[7]

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. Therefore, patents of this kind are not a matter of concern for Commons.

Photos of people in costumes of copyrighted characters may or may not be copyrighted.[8] See Commons:Copyright rules by subject matter#Costumes and cosplay for more information. These should be decided on a case-by-case basis using the separability test.[2]

Text

It is prohibited 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.

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

Shortcuts

Lihat juga: Category:Toys related deletion requests

Although the scope of copyright varies between countries, it is a misconception that copyright applies solely to "art". Instead, copyright typically applies to a larger variety of works; to use the United States, where WMF servers are located, as an example: copyright protection is available to “original works of authorship fixed in any tangible medium of expression”[9] Indeed, toys generally are original (owe their origin to an author), have authors (human creators), and are fixed in a tangible medium (wood, fabric, etc.)

The question, then, is whether toys are to be treated as vehicles and furniture: exempt from copyright protection on the basis of being utilitarian objects. Indeed, some countries, such as Japan,[10] generally consider toys to be utilitarian objects and therefore ineligible for copyright. Other countries, such as the United States, however, do not consider toys to be utilitarian objects. Accordingly, paintings, statues and toys are all works subject to copyright whose photographs would require permission of the original creator to be hosted on the Commons. Just as you cannot upload pictures of a sculpture by Picasso, you cannot upload photographs of Mickey Mouse or Pokémon figures.

The legal rationale in the United States has been established in numerous cases. "Gay Toys, Inc. versus Buddy L Corporation", for example, found "a toy airplane is to be played with and enjoyed, but a painting of an airplane, which is copyrightable, is to be looked at and enjoyed. Other than the portrayal of a real airplane, a toy airplane, like a painting, has no intrinsic utilitarian function."[11] Additional rulings have found, for example, "it is no longer subject to dispute that statues or models of animals or dolls are entitled to copyright protection"[12] and "There is no question but that stuffed toy animals are entitled to copyright protection."[13]

Similarly, dolls' clothing has been found to be copyrightable in the US on the grounds that it does not have a utilitarian function of providing protection from the elements or preserving modesty in the manner that clothing for humans does (the latter is a "useful article.")[2] 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. Artistic elements of these items could be copyrighted, but only if it's separable from the utilitarian elements.[14] Some toys are also too simple to meet the threshold of originality, for example, the Kong dog toy.[15] "A toy model that is an exact replica of an automobile, airplane, train, or other useful article where no creative expression has been added to the existing design" is not eligible for copyright protection in the United States.[16]

In other cases, the "separability" test may be needed (see Star Athletica, LLC v. Varsity Brands, Inc.). Consensus on Commons has found that sex dolls are copyrightable, as their design elements are separable from their utilitarian function.

When uploading a picture of a toy, you must show that the toy is in the public domain in both the United States and in the source country of the toy. In the United States, copyright is granted for toys even if the toy is ineligible for copyright in the source country.[17]

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 file be licensed for possible commercial reuse and be free of third-party copyrights. Fair use arguments are not allowed on Commons. "Fair use" is a difficult legal exception that exists only for pictures that are used in a certain limited context; it is never applicable to entire databases of copyrighted material.

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. Even your own drawing of Pikachu cannot be published under a free license.

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.

What about images of copyrighted characters in public domain works?

Shortcuts

Sometimes individual works featuring copyrighted characters (such as Mickey Mouse or Superman) enter the public domain. Although the works themselves are in the public domain, any portions that include the copyrighted characters are still restricted by copyright law.[18][19]

This concept even extends to non-sentient "characters", such as the Batmobile.[20] Derivative representations of characters are protected by copyright law in the United States until the original work that created the character is no longer copyrighted.[21] This protection is separate from trademark protection. See Commons:Character copyrights for information on the copyright status of specific characters.

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.

Casebook

Lihat juga: Commons:Copyright rules by subject matter.

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

  • Comic figures and action figures: No photographs, drawings, paintings or any other copies/derivative works of these are allowed (as long as the original is not in the public domain). No pictures are allowed of items which are derivatives from copyrighted figures themselves, like dolls, action figures, T-shirts, printed bags, ashtrays etc.
  • Paintings with frames: Paintings that are in the public domain are generally allowed (see Commons:Pelesenan). Frames are 3-dimensional objects, so the photo may be copyrighted. Remember: Always provide the original creator's name, birth and death date and the time of creation, if you can! If you do not know, give as much source information as possible (source link, place of publication etc.). Other volunteers must be able to verify the copyright status. Furthermore, the moral rights of the original creator—which include the right to be named as the author—are perpetual in some countries. In either case you need permission from the author to create a derivative work. Without such permission any art you create based on their work is legally considered an unlicensed copy owned by the original author (taking from another web site is not allowed without their permission).
  • Cave paintings: Cave walls are usually not flat, but three-dimensional. The same goes for antique vases and other uneven or rough surfaces. This could mean that photographs of such media can be copyrighted, even if the cave painting is in the public domain. (We are looking for case studies here!) Old frescoes and other paintings on flat surfaces in the public domain should be fine, as long as they are reproduced as two-dimensional artworks.
  • Photographs of buildings and artworks in public spaces: Those are derivative works, but they may be OK, if the artwork is permanently installed (which means, it is there to stay, not to be removed after a certain time), and in some countries if you are on public ground while taking the picture. Check Commons:Freedom of panorama. If your country has a liberal policy on this exception and learn more about freedom of panorama. Note that in most countries, freedom of panorama does not cover two-dimensional artworks such as murals.
  • Replicas of artworks: Exact replicas (even poor ones) of public domain works, like tourist souvenirs of the Venus de Milo, cannot attract any new copyright as they do not have the required originality. Hence, photographs of such items can be treated just like photographs of the artwork itself.
  • Photographs of three-dimensional objects: always copyrighted, even if the object itself is in the public domain. If you did not take the photograph yourself, you need permission from the owner of the photographic copyright (unless of course the photograph itself is in the public domain).
  • Images of characters/objects/scenes in books: subject to any copyright on the book itself. You cannot freely create and distribute a drawing of Albus Dumbledore any more than you could distribute your own Harry Potter movie. In either case you need permission from the author to create a derivative work. Without such permission any art you create based on their work is legally considered an unlicensed copy owned by the original author.
  • Fan art: See Commons:Fan art

Tagging non-free derivative works

If you come across derivative works of non-free works on Commons, tag them with {{SD|F3}} for speedy deletion.

See also

  • Collages are combinations of multiple images arranged into a single image
  • Screenshots are a type of derivative work

References

  1. ↑ U.S. Copyright Act of 1976, Section 101. Retrieved on 2019-04-17.
  2. ↑ a b Pearlman, Rachel (2012-09-17). IP Frontiers: From planes to dolls: Copyright challenges in the toy industry. NY Daily Record. Retrieved on 2014-06-21.
  3. ↑ Weinberg, Michael (January 2013). What's the Deal with Copyright and 3D Printing? 9. Public Knowledge. Retrieved on 2016-09-22.
  4. ↑ Weinberg, Michael (January 2013). What's the Deal with Copyright and 3D Printing? 13. Public Knowledge. Retrieved on 2016-09-22.
  5. ↑ a b Summary Report: The Interplay Between Design and Copyright Protection for Industrial Products 4–5. AIPPI.
  6. ↑ VSL0069492. Retrieved on 29 October 2013.
  7. ↑ Compendium II: Copyright Office Practices - Chapter 500. University of New Hampshire School of Law.
  8. ↑ Commons:Deletion requests/Images of costumes tagged as copyvios by AnimeFan#Comment by Mike Godwin
  9. ↑ 17 U.S. Code § 102. Subject matter of copyright: In general. Retrieved on 2019-04-17.
  10. ↑ "Farby" doll is judged not to be a work of art. Sendai High Court (9 July 2002). Retrieved on 2019-04-17.
  11. ↑ (Gay Toys, Inc. v. Buddy L Corporation, 703 F.2d 970 (6th Cir. 1983)
  12. ↑ Blazon, Inc. v. DeLuxe Game Corp., 268 F. Supp. 416 (S.D.N.Y. 1965)
  13. ↑ R. Dakin & Co. v. A & L Novelty Co., Inc., 444 F. Supp. 1080, 1083-84 (E.D.N.Y. 1978)
  14. ↑ [1] Public domain maps]. Public Domain Sherpa. Retrieved on 2019-04-17.
  15. ↑ Kong Design (20 September 213). Retrieved on 2019-04-17.
  16. ↑ Compendium III § 313.4(A)
  17. ↑ HASBRO BRADLEY, INC. v. SPARKLE TOYS, INC., 780 F.2d 189 (2nd Cir. 1985).
  18. ↑ Siegel v. Warner Bros (2009)
  19. ↑ Metro-Goldwyn-Mayer, Inc. v. American Honda Motor Co. (1995)
  20. ↑ DC Comics v. Mark Towle (2013)
  21. ↑ Warner Bros. v. AVELA (2011)

External links

Case studies
Other useful sites
Retrieved from "https://commons.wikimedia.org/w/index.php?title=Commons:Derivative_works/ms&oldid=803508647"