Commons:Derivative works

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


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

Contents

[edit] What is a derivative work?

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

"A 'derivative work' is a work based upon one or more pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a 'derivative work'".

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

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

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

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

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

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

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

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

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

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

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

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

The second part of the amendment states that

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

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

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

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

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

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

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

Photos of people in costumes of copyrighted and/or trademarked characters, in general, are understood as lawful. [1]

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

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

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

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

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

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

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

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

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

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

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

[edit] Casebook

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

  • Comic figures and action figures: No photographs, drawings, paintings or any other copies/derivative works of these 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:Licensing). 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 PD paintings on flat surfaces 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.)
    • Full freedom of panorama: Australia, Austria, Bolivia, Brazil, People's Republic of China, Canada, Croatia, Colombia, Czech Republic, Ecuador, Germany, India, Ireland, Israel, Mexico, Netherlands, Peru, Poland, Sweden, Slovakia, Spain, Switzerland, United Kingdom
    • Restricted or no freedom of panorama: Armenia*, Azerbaijan*, Belarus*, Belgium, Denmark**, Estonia*, Finland***, France, Georgia*, Hungary, Italy, Japan***, Kazakhstan*, Kyrgyzstan*, Latvia*, Lithuania*, Moldova*, Norway**, Paraguay*, Romania*, Russia*, Uzbekistan*, Ukraine, USA**
      * These countries limit their freedom of panorama to non-commercial uses of the image only.
      **These countries have freedom of panorama only for buildings, but not for sculptures or other works.
      ***These countries have full freedom of panorama only for buildings, whereas images of sculptures or other works may only be reproduced for non-commercial purposes.
  • Replicas of artworks: Exact replicas of public domain works, like tourist souvenirs of the Venus de Milo, cannot attract any new copyright as exact replicas 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 are 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 are 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.


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