Commons:Deletion requests/File:Marilyn Monroe Playboy centerfold 1953.jpg

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File:Marilyn Monroe Playboy centerfold 1953.jpg[edit]

Public domain acid test Canoe1967 (talk) 01:48, 16 April 2013 (UTC)[reply]

 Keep. I came across the same image on Ebay. Marilyn Monroe calendar. There are detailed images there that show no copyright notice. I contacted a collector that can't take her calendar out of the frame but she did send a picture of a jacknife that doesn't have any copyright notice and has the same image. The knife is listed in a book called "Marilyn Memorabilia" by Clark Kidder as circa 1972. So it was published before 1977 and is probably not a pirated knock-off. I will try to find contact info for Mr. Kidder and see if he can confirm as well. The collector is also contacting other collectors to see if they have any memorabilia that shows no notice on the same image.--Canoe1967 (talk) 01:58, 16 April 2013 (UTC)[reply]
I sent an email to Mr. Kidder to join us here or contact me directly. If you do show up Mr. Kidder, then just click the lower edit button at the top right of this section. Type at the bottom and hit save page. Don't worry if it looks funny, we can fix format errors.--Canoe1967 (talk) 02:34, 16 April 2013 (UTC)[reply]
 Delete Copyright violation. I'm sure you can find many more prints of this and other Playboy images without copyright notice, but that's irrelevant. What counts is if there was a copyright claim with its first publication. In this case there was, 100% sure! Playboy is known for protecting their rights very carefully, and it is absurd to think that a 1953 issue of Playboy carried no copyright notice. It's probably on the title page or in the back of the magazine, but we can't see that on the image you uploaded, nor on the image on the source web site, which displays only two pages of the magazine. Jahoe (talk) 23:09, 16 April 2013 (UTC)[reply]
The picture was taken in 1949, published on calendars in 1952, Hefner bought it in 1953. The 1953 Playboy does have a proper copyright notice but the calendar images I have seen do not.--Canoe1967 (talk) 23:22, 16 April 2013 (UTC)[reply]
If, as you state, Hefner "bought it", that means that he bought the rights of the picture, so it is not PD unless you can prove that the first publication caried no copyright notice.
Discussing that here will not bring us to conclusions; I suppose you would have to sue Hefner in court and bring an original print of the first publication as evidence. Consider your budget before you do so, but I'm looking forward to the case Canoe1967/Hefner. ;)
Generally however, Playboy photos are copyrighted and thus not ok for upload on commons. Jahoe (talk) 00:01, 17 April 2013 (UTC)[reply]
It was published without notice before Hefner bought it though. I don't know how the rights changed hands. Hefner only paid $900 which is low for the full rights of an image that had already had (8?) million copies published. Playboy's first issue sold just over 50,000. The photographer sold it to the calendar company for $400, Marilyn was paid $50 for the shoot. Usually photographers just give a licence to others and never sell full rights. Full rights revert back to the photographer after a few years(28?) anyway unless they renew any copyright transfer.--Canoe1967 (talk) 00:40, 17 April 2013 (UTC)[reply]
Hefner was a clever businessman, so I guess he would not have paid $900 for a picture that is PD.
It is still a bit misty to me what you're trying to prove by uploading the image to commons, but never mind that. :) I'll leave further discussion to others, but I'll follow it interestedly. Jahoe (talk) 01:21, 17 April 2013 (UTC)[reply]
See: http://copyright.cornell.edu/resources/publicdomain.cfm The published 1923 through 1977 with no notice section. That is our approved link from Template:PD-US-no notice. It basically means if any of the images are legally published without proper notice then all of them are public domain.--Canoe1967 (talk) 02:49, 17 April 2013 (UTC)[reply]
  •  Delete Copyright violation. This was printed in 1st issue of Playboy which is known to be copyrighted. It is a Mirror image of the calendars.(appears to be right arm up calendars appear to be left arm up) If rights went back to photographer then its not public domain tell 70 years after his death. Theworm777 (talk) 11:04, 17 April 2013 (UTC)[reply]
This is where the law gets confusing. If any versions were legally published before 1977 then all versions become public domain. Putting a proper notice on afterward will not revert the fact that is has been published without. This is probably caused because proper copyright registry and any fees involved were not thought to be worth the effort by the calendar company. I may email them if they are still around and let them know they can start printing again. Mr. Hefner probably realized the importance and probably knew that he may have been too late at one point. I am amazed that no one has noticed this before on such an iconic image. I started investigating after they questioned the fair use image we have at en:wp.--Canoe1967 (talk) 20:31, 17 April 2013 (UTC)[reply]
It's not necessarily irrelevant. The first publication definitely counts, but so did subsequent publications. Before 1978 (and mostly before 1989), the notice had to be on *all* copies. Courts did try to find ways to preserve copyright, and were lenient if a "relatively few" copies lacked notice. More questions come into play though... the linked calendar shows a derivative version of the photograph. Even if that had no notice, if the original photo is still considered copyrighted, as a derivative work the calendar photo is still not fully PD. Courts have ruled that a derivative work of a previously-published original which is still copyrighted is still subject to the underlying work's copyright (at least for the portions which are derivative). For example, episodes of a TV show which were not renewed were held to be derivative of the characters which were introduced in earlier episodes which were renewed. Another case was a movie which was not renewed, but still derivative of the original novel. So... I'm not sure that particular calendar is enough evidence of lack of notice for the original photograph. On the other hand, it sounds like there were calendars with the photo published before the Playboy issue. So, lack of copyright notice on those calendars might be different, since those were presumably a direct copy of the photo. You'd have to search the entire calendar for a copyright notice though, not just that page. Oh, and rights did not necessarily revert to the author after 28 years -- they may have sold renewal rights as well. If the author died before the renewal was filed, there were separate issues which may have reverted the rights to the estate, but if the author was still alive an earlier promise to sell the renewal rights would still have been valid. Carl Lindberg (talk) 13:16, 18 April 2013 (UTC)[reply]
The two copies of the calendar from 1952 and 1953 that the above collector has are in cases. This is a link to one image. I may be able to convince her to remove them from the cases to check for copyrights. I am still hoping that Mr. Kidder will respond as well. If they can confirm that there are no copyright marks on these would that justify keeping this file on commons? I am sure Playboy will lawyer up once they find out we are hosting the image but they are probably aware of the law and thus will just saber rattle to the WMF causing the Streisand Effect to ripple once again.--Canoe1967 (talk) 15:27, 18 April 2013 (UTC)[reply]
What about copyright renewals? If it was published without a copyright notice, then it should be renewed 28 years after 1952, right? Playboy was probably renewed 28 years after 1953, which seems to be one year too late. --Stefan4 (talk) 18:26, 18 April 2013 (UTC)[reply]
If it was published without a copyright notice, it lost its copyright immediately. If it had proper notices, then yes it needed to be renewed 27 or 28 years later. Carl Lindberg (talk) 19:16, 18 April 2013 (UTC)[reply]
Do those copies have just the Monroe month, or do they have the entire original calendar as distributed? Just the one month wouldn't be enough. Carl Lindberg (talk) 19:16, 18 April 2013 (UTC)[reply]

FYI, there have been several court cases which touch on the public domain issue and the Monroe photographs. In every case, the validity for Kelley Studios copyright(s) to the Monroe images was upheld. The first printed pieces using the Monroe images did indeed have a copyright notice. Subsequent printings through the years, most of them boot-legged did not - however, since these printings were not approved, they do not carry any legal burden for Kelley. Additionally, registration for the renewal for the copyrights is in place. And finally, many states have a Right of Publicity statutes. This means that you would need a valid model release or permission from the Estate of Monroe in order to use the photograph(s) in any way. — Preceding unsigned comment added by Kelley studios (talk • contribs) 17:14, April 18, 2013‎ (UTC)

Thank you for your input. In that case we should delete this image as copyright violation. w:Tom Kelley (photographer) passed in 1984 so I assume that copyrights won't expire until 95 years after the first publication?--Canoe1967 (talk) 17:33, 18 April 2013 (UTC)[reply]
Out of curiosity, could you cite the cases? That might be helpful in general (not that I doubt you for this case). And yes, any bootlegged calendars would not be relevant on the issue -- to become PD, they would have to be copies distributed with the copyright owner's authorization. As for publicity rights though, it is not at all correct that you would need a release from the estate to "use the photographs in any way". If the publicity rights were valid, they would cover usages of her likeness for "commercial purposes" but not further. Commons considers those non-copyright restrictions and those do not prevent upload in and of themselves (also see {{Personality rights}}). Those rights can vary by state, and in particular, the Ninth Circuit ruled last year that Monroe's publicity rights expired at her death. California recently changed its law to retroactively restore them, but the court ruled that New York's law applies on the matter, and so ruled that no such rights exist. Monroe actually died in California, but the estate had basically claimed that she lived in New York (in order to avoid California's inheritance tax), and the court ruled that position meant that New York's publicity rights law is the relevant one as well. But, all that is mostly immaterial here. We need to know about the copyright, and if that is still valid (seems pretty likely), then we can't keep the photos. Carl Lindberg (talk) 19:16, 18 April 2013 (UTC)[reply]
It may have been a drive by post which we do really appreciate as it cleared the issue up. Yes it would be nice to read the case results. It is not hard to find the company email if you want to go that route. We may also wish to put a tag on Marilyn's category like Category:Statue of the Little Mermaid (Copenhagen) in case another fool like me thinks he has found treasure like I did. I am also wondering if an article on the image itself would survive deletion review at the English Wikipedia. Some are complaining about the fair use image we have over there being used in Marilyn's article, so we could move it to its own. Include the history, images of the original studio, (new company in the building now and flickr should have images), who got paid how much and when, court cases, etc. "Golden Dreams" was the name of the centerfold image and "A New Wrinkle" was the other. We could call the article Golden Dreams and mention the other in the lead. Kelley Studios still sells them for $15 to $30. I may bring that up with the prudes that want the fair use image removed from her article over there.--Canoe1967 (talk) 20:01, 18 April 2013 (UTC)[reply]
Full Title Copyright Number Year
Marilyn : from the famed red velvet calendar session : no. 2 / photo. by Tom Kelley. VA0000468375 1991
Marilyn Monroe variation : no. 8. VA0001307646 1997
Kelley's Marilyn Monroe, knees pose, variation : no. 3. VA0000861888 1997
Marilyn Monroe pose : no. 11. VAu000692235 2006
Marilyn Monroe pose : no. 12. VAu000692234 2006
Marilyn Monroe pose : no. 7. VAu000662034 2003
Marilyn Monroe : variation no. 10. VAu000590404 2004
Marilyn Monroe : variation no. 9. VAu000590403 2004
Marilyn Monroe, knees pose variation : no. 3. VAu000356087 1993
Marilyn Monroe stretch pose, variation number 1. VAu000077446 1985
Marilyn Monroe stretch pose, variation number 2. VAu000077445 1985
Marilyn Monroe--on the knees pose. VAu000068923 1984
Marilyn Monroe--stretch pose. VAu000068922 1984
Marilyn Monroe double exposure VAu000019065 1980
I added a speedy tag to the image. #10 is the Playboy centerfold and #2 is the other calendar image.--Canoe1967 (talk) 21:26, 18 April 2013 (UTC)[reply]
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