Commons:When to use the PD-Art tag

From Wikimedia Commons, the free media repository

This page is considered an official policy on Wikimedia Commons. (See the list: Policy and Guideline)
It has wide acceptance among editors and is considered a standard that everyone should follow. Except for minor edits, please make use of the discussion page to propose changes to this policy.

In a nutshell, {{PD-Art}} may be used by the uploader of a photograph taken by somebody else to assert that the photograph can have no independent copyright as it is simply a faithful reproduction of an old, public domain, two-dimensional work of art. The tag can be used on any such photograph regardless of the source country, following an official statement of the position taken by the Board of the Wikimedia Foundation in July 2008.

This page relates to photographs taken from a distance only. For scans/photocopies, see Commons:When to use the PD-scan tag.

Correct use of PD-Art: a recent US photograph found on the Internet of a public domain painting—mere full-frame technical reproduction.

PD-Art is not applicable since copyright subsists in the photograph by virtue of artistic choices available to the photographer such as framing and point of view.

This uses PD-Old rather than PD-Art because the subject photographed—the horse and its rider—is not a work of art.

1 Introduction
2 Why do we allow the {{PD-Art}} tag to be used for photographs from any country?
- 2.1 The position of the WMF
- 2.2 Commons policy follows the WMF position
3 This does not apply to photographs of 3D works of art
4 So, what does the {{PD-Art}} tag mean?
5 When should the PD-Art tag not be used?
6 Examples
7 Reusing content tagged with the PD-Art tag
8 Usage examples
- 8.1 {{PD-Art}} - the default
- 8.2 {{PD-Art|PD-US}}

[edit] Introduction

Photographs almost always attract copyright protection, the first owner of which will usually be the photographer or his/her employer. If you want to upload to Commons a copy of a photograph originally taken by somebody else, you have to be able to demonstrate one of the following:

That the copyright owner has released the photograph under an acceptable free license; or
That copyright in the photograph has expired (i.e. that it is public domain); or
That the photograph is not original enough to qualify for copyright protection.

It is the third point that we are concerned with here.

[edit] Original work

A mere mechanical reproduction of some other image, such as an unmodified photocopy or scan of a drawing, cannot attract additional copyright protection over and above that of the original, as it lacks originality: it is a bare copy, no more. That rule applies internationally and, on Commons, is normally taken for granted.

[edit] The U.S. case of Bridgeman v. Corel (1999)

In Bridgeman Art Library v. Corel Corp. (1999), the New York District Court held that "a photograph which is no more than a copy of a work of another as exact as science and technology permits lacks originality. That is not to say that such a feat is trivial, simply not original". In spite of the effort and labor involved in creating professional-quality slides from the original works of art, the Court held that copyright did not subsist as they were simply slavish copies of the works of art represented.

The rule therefore excludes from copyright protection photographs which are intended to be no more than a faithful reproduction of a two-dimensional work of art such as a painting. If only technical expertise is involved (to take a faithful and unimaginative picture), the photograph acquires no copyright protection in its own right. The case extends the rule that scans and photocopies of two-dimensional originals are not copyrightable to cover in addition faithful reproductions created in the U.S. through photography.

As a result of this case, anyone taking in the U.S. a mere 'record' photograph of a 2D work of art — plain, full-framed — gets no copyright protection for the photograph. If the original work of art is sufficiently old that its own copyright has expired, the photograph itself will then be free for use on Commons.

[edit] Other countries

The case of Bridgeman applies in the United States only. Other countries may have different legal approaches. In some countries, notably the UK, Spain and the Nordic countries, arguments have been presented that faithful reproduction photographs are entitled to local copyright protection, either because local law considers them 'original' or because it allows a special type of "simple photograph" copyright.

Nevertheless, under Commons rules the {{PD-Art}} tag can be used for "faithful reproduction" photographs of 2D public domain works of art even where copyright might be asserted under local law in the source country.

This is a rare exception to the usual Commons rule that all images must be free both in the US and in the source country.

[edit] Why do we allow the {{PD-Art}} tag to be used for photographs from any country?

[edit] The position of the WMF

Regardless of any local laws to the contrary, the Wikimedia Foundation has stated its opinion as follows :

To put it plainly, WMF's position has always been that faithful reproductions of two-dimensional public domain works of art are public domain, and that claims to the contrary represent an assault on the very concept of a public domain. If museums and galleries not only claim copyright on reproductions, but also control the access to the ability to reproduce pictures (by prohibiting photos, etc.), important historical works that are legally in the public domain can be made inaccessible to the public except through gatekeepers.

WMF has made it clear that in the absence of even a strong legal complaint, we don't think it's a good idea to dignify such claims of copyright on public domain works. And, if we ever were seriously legally challenged, we would have a good internal debate about whether we'd fight such a case, and build publicity around it. This is neither a policy change (at least from WMF's point of view), nor is it a change that has implications for other Commons policies. —Erik Möller 01:34, 25 July 2008 (UTC)

[edit] Commons policy follows the WMF position

Following this statement, a poll was held to determine policy, and the overwhelming view was that Commons should accept the {{PD-Art}} tag as being valid for photographs from any country. In August 2008, policy was changed accordingly.

[edit] This does not apply to photographs of 3D works of art

When a photograph demonstrates originality (typically, through the choice of framing, lighting, point of view and so on), it qualifies for copyright even if the photographed subject is itself uncopyrighted. This is typically the case for photographs of three-dimensional objects, hence the rule of thumb that "2D is OK, 3D is not".

[edit] So, what does the {{PD-Art}} tag mean?

Use of the {{PD-Art}} tag implies:

That the Commons file is a copy of a photograph taken by someone other than the uploader; and
That the photograph was a mere record copy (a faithful reproduction) of a two-dimensional work of art which is itself in the public domain.

[edit] When should the PD-Art tag not be used?

The {{PD-Art}} tag should not be used:

When you yourself personally took the photograph

In such a case, simply add the {{PD-Old}} tag to show that the work of art is itself in the public domain.

When the work of art shown in the photograph is in three dimensions

{{PD-Art}} does not apply to 3D works of art such as sculptures, since the photographer was able to generate originality by virtue of a choice of viewpoints and lighting arrangements. Anything that could cast a shadow is excluded.

When the photograph shows a 2D work of art within a 3D frame

If the frame is 3D, the previous point applies and the image cannot be accepted on Commons. Please crop to remove the frame and upload a version which shows the 2D work of art on its own.

When the original work of art is not in the public domain.

If copyright still subsists in the work of art but has been released under a free license, please use that license instead of the {{PD-Art}} tag.

[edit] Examples

[edit] Photograph of an Old Master found on the Internet

OK as long as the image is or appears to be a faithful reproduction of a 2D public domain work of art.

[edit] Photograph of an Old Master scanned in from a recently published book

OK. The WMF takes the view that as long as the reproduction is a faithful reproduction of the original it falls into the public domain.

[edit] Photograph of an old sculpture found on the Internet, or in a book

not OK. {{PD-Art}} cannot be used for 3D objects such as sculpture, even if the sculpture is very old. If the photograph itself is provably old enough to be in the public domain, use {{PD-old}}.

[edit] Photograph of an old coin found on the Internet

not OK. Coins are essentially 3D articles, and there is likely to be sufficient creativity in the lighting arrangements for the photographer to obtain a new copyright on the image. The WMF General Counsel has indicated that in his view coin images do not fall under Bridgeman v. Corel and hence are copyrighted [1]. There can, however be no copyright if the coin has merely been placed onto a scanner (unless, of course, the coin itself is copyrighted).

[edit] Copy of an old public domain photograph that you have scanned in from a recently published book

Use {{PD-Old}} rather than {{PD-Art}} provided you are happy that the book publishers have not significantly modified the photograph for publication, e.g. by adding artificial colour. If the old photograph was eg a portrait, {{PD-Art}} does not apply as there was no underlying work of art. If the photograph was of an earlier work of art such as an old painting, {{PD-Art}} could be used but is not needed as it no longer matters whether the photograph at the time attracted copyright or not.

[edit] Reusing content tagged with the PD-Art tag

Please be aware that depending on local laws it may not always be possible in your country to re-use content held on Commons under this policy. For a brief country-by-country review, see Commons:Reuse of PD-Art photographs.

[edit] Usage examples

[edit] `{{PD-Art}} - the default`

For use when the original work of art is public domain under {{PD-Old}}:

This is a faithful photographic reproduction of an original two-dimensional work of art. The work of art itself is in the public domain for the following reason:

This image (or other media file) is in the public domain because its copyright has expired.

This applies to the United States, Canada, the European Union and those countries with a copyright term of life of the author plus 70 years.

Note that a few countries have copyright terms longer than 70 years: Mexico has 100 years, Colombia has 80 years, and Guatemala and Samoa have 75 years. This image may not be in the public domain in these countries, which moreover do not implement the rule of the shorter term. Côte d'Ivoire has a general copyright term of 99 years and Honduras has 75 years, but they do implement that rule of the shorter term.

The official position taken by the Wikimedia Foundation is that "faithful reproductions of two-dimensional public domain works of art are public domain, and that claims to the contrary represent an assault on the very concept of a public domain". For details, see Commons:When to use the PD-Art tag.
This photographic reproduction is therefore also considered to be in the public domain.

Please be aware that depending on local laws, re-use of this content may be prohibited or restricted in your jurisdiction. See Commons:Reuse of PD-Art photographs.

[edit] `{{PD-Art|PD-US}}`

For use when the original work of art is public domain under {{PD-US}}:

This is a faithful photographic reproduction of an original two-dimensional work of art. The work of art itself is in the public domain for the following reason:

	This media file is in the public domain in the United States. This applies to U.S. works where the copyright has expired, often because its first publication occurred prior to January 1, 1923. See this page for further explanation.
	Deutsch \| English \| Español \| Français \| Gaeilge \| Galego \| Italiano \| Nederlands \| ‪中文(简体)‬ \| +/-
	This image might not be in the public domain outside of the United States (this especially applies in the countries and areas that do not apply the rule of the shorter term for US works, such as Canada, Mainland China (not Hong Kong or Macao), Germany, Mexico, and Switzerland). The creator and year of publication are essential information and must be provided. See Wikipedia:Public domain and Wikipedia:Copyrights for more details.

The official position taken by the Wikimedia Foundation is that "faithful reproductions of two-dimensional public domain works of art are public domain, and that claims to the contrary represent an assault on the very concept of a public domain". For details, see Commons:When to use the PD-Art tag.
This photographic reproduction is therefore also considered to be in the public domain.

Please be aware that depending on local laws, re-use of this content may be prohibited or restricted in your jurisdiction. See Commons:Reuse of PD-Art photographs.

Commons:When to use the PD-Art tag

From Wikimedia Commons, the free media repository

Contents