Commons:Che Guevara/deleted images

From Wikimedia Commons, the free media repository
Jump to: navigation, search

This deletion debate is now closed. Please do not make any edits to this archive. You can read the deletion policy or ask a question at the Village pump. If the circumstances surrounding this file have changed in a notable manner, you may re-nominate this file or ask for it to be undeleted.

Image:CheyFidel.jpg, Image:Che Guevara2.jpg[edit]

unrestricted commercial use is not allowed, therefore against the Commons policy --ALE! 12:11, 2 August 2006 (UTC)

Symbol delete vote.svg Delete -- when the copyright holder reserves his right to have the final say about usage, the image shouldn't be on Commons. But it would be perfectly acceptable as fair use on those Wikipedia that accept it. / Fred Chess 16:59, 3 August 2006 (UTC)
  • Keep. Alberto Korda sued that vodka maker based on his moral rights that are independent of copyright status. Moral rights are included in Berne Convention, so if the photographer is still alive, he still might sue you even if the picture is public domain. The moral rights are not transferrable, and when Korda died 2001, no one can control the use of those pictures anymore. --Mikko Paananen 18:32, 3 August 2006 (UTC)
This is not the way it works in the United States, and we do expect creators to waive some portion of their moral rights as much as we expect them to waive their economic rights. Jkelly 00:51, 22 August 2006 (UTC)
In that case we should delete everything that is taken by Finns and maybe other citizens of the EU. I can not waive my moral rights. -Samulili 09:15, 31 August 2006 (UTC)
  • The license says "The copyright holder of this file allows anyone to use it for any purpose, provided that it is not used for the promotion of products such as alcohol, or for any purpose that denigrates the reputation of Che Guevara.". This is too unspecific to be called "free material". Be warned that the files will very likely be deleted, so you should better upload it as fair use on the Wikipedia you want to use it, if it allows fair use. / Fred Chess 13:36, 8 August 2006 (UTC)
  • Symbol keep vote.svg Keep Mikko said above, what I wanted to say. --VinceB 12:17, 9 August 2006 (UTC)
  • This photo is against policy. I will be very surprised if it is kept. Can not be used for a “purpose that denigrates the reputation of Che”? Not a free image at all then. Symbol delete vote.svg Delete --Kjetil_r 12:59, 9 August 2006 (UTC)
  • Pictogram voting comment.svg Comment A related debate [1]. Very interesting! / Fred Chess 19:24, 24 August 2006 (UTC)
  • Delete, images are unfree. They can be undeleted on January 1, 2072. Angr 09:23, 31 August 2006 (UTC)
Images deleted. I am not allowed to upload my own photos under these conditions. Thuresson 08:03, 3 September 2006 (UTC)
The below is copied from Commons:Village pump:

Suggestion to restore Che Guevara images[edit]

I would prefer to post this at Commons:Undeletion requests but I don't think anyone reads that yet.

Image:CheyFidel.jpg and Image:Che Guevara2.jpg were deleted because the original template said that the images can not be used for certain commercial purposes. I wanted the images deleted at the time. However, I have since gotten a better understanding of copyrights.

It is clear that the author of the Che Guevara images allows commercial use, but that he is (or was) using his moral rights as an artist, by not allowing the images to be used in a way that degraded them: in an advert for Absolut Vodka, or as a anti-Cuba poster reading "Welcome to Cuba, the world's largest prison for journalists." [2]. Yes moral rights are valid in most countries except in the U.S. and possibly the Great Britain. That does not mean that the image can not be used commercially.

Yes the moral rights have a valid legal ground. I could probably sue anyone of you if you use any of my images in a way that degrades me or my work, and you do it in a country that follows and respects the Berne Covention. I can do this eventhough I have released all my work under a free license -- I could even release it under a PD license, but my moral rights are still valid.

I copied the entire deletion request to Che Guevara/deleted images.

I would suggest to restore the images, and replace their tag with a standard {{Copyrighted free use}} tag.

Fred Chess 13:46, 26 September 2006 (UTC)

This was an interesting discussion and I remember commenting it along the same lines as Fred here. In my opinion, what this boils down to, is whether an explicit statement "I'll sue your sorry ass if you hurt my feelings when using the image" is a more restricted license than a cc-by, which implies that I may sue you if I want to if you use the images in a way that hurts my feelings.
And to make things clear, any statement in any license/contract saying that I won't do the things mentioned above become legally void the second I change my mind (under Finnish law atleast, and probably many others). -Samulili 14:39, 26 September 2006 (UTC)
I think that this makes sense. We don't delete every image from France because one cannot release one's never-expiring moral rights under French law. Jkelly 20:13, 26 September 2006 (UTC)

The images are copyrighted period. Copyright has been asserted by a British High Court in the Lowe Lintas case (that of the vodka ad) -- and yes, there are moral rights in the UK, see sections 77 through 89 of the Copyright, Designs and Patents Act 1988 (c. 48). The issue here, IMHO, is whether Korda's statement can be construed as a sort of license or not. If yes, then its provisions make the image non-free: saying in a certain text that Che acted as a sadistic murderer when executed political prisoners at La Cabaña fortress (whether true or not) will clearly "denigrate the reputation of Che" and therefore the image could not be used. But if Korda's statement cannot be construed as a license, then standard copyright rules apply and the images are non-free. Cinabrium 04:15, 11 October 2006 (UTC)

to reproduce the image, "As a supporter of the ideals for which Che Guevara died, I am not averse to its reproduction by those who wish to propagate his memory and the cause of social justice throughout the world. So it's used with permission." The derivitive work based on the photograph was by Jim Fitzpatrick, who renounced any copyright restrictions on it. So I suppose if to keep or delete the images from Commons comes down to whether Korda's request it be used "to propagate (Che Guevara's) memory" is an acceptable conditional use restriction for Wikimedia Commons. -- Infrogmation 23:52, 10 August 2006 (UTC)

It is not an acceptable condition, because it restricts the commercial usability of the image and makes it unfree in this sense. --ALE! ¿…? 07:50, 11 August 2006 (UTC)
And the Commons are not the right place to propagate somebody's memory. memory. This condition is not fullfilled here and can't be fullfilled.--Hannes2·wp 07:49, 12 August 2006 (UTC)
Symbol delete vote.svg Delete Alas, delete then. -- Infrogmation 04:15, 20 August 2006 (UTC)

Urheberrecht gegeben - Löschen! -- 23:24, 13 August 2006 (UTC)

  • Symbol keep vote.svg Keep. I initiated a discussion on the Village Pimp about two other of Kordas images. Isn't Korda just applying his non-revocable w:moral rights? It is well known that Korda allows commercial use of the images on, for example, T-shirts. I collected the arguments at Che Guevara/deleted images. If I misunderstood something, please tell me. / Fred Chess 06:46, 2 October 2006 (UTC)
  • Symbol delete vote.svg Delete To propagate Guevara's memory is not an acceptable use restriction. --Kjetil_r 14:46, 10 October 2006 (UTC)

This discussion also applies to Image:Che Guevara2.jpg and Image:CheHigh.jpg, duplicates or variations of the same image (and Che1.jpg Samulili). First, lets take a look at the facts:

  1. Cuba is a signatory of the Berne Convention since 1997. For details see WIPO's records
  2. Copyright on this photografph belongs to the heirs or succesors of the late Cuban photographer Alberto Diaz Gutierrez (AKA Alberto Korda). In 2000, Korda sued Lowe Lintas, Rex Features and Smirnoff under allegations of copyright violation. See BBC news).
  3. Korda's copyright on the photo has been asserted by the British High Court. See The Guardian
  4. In the words of Korda himself, «As a supporter of the ideals for which Che Guevara died, I am not averse to its reproduction by those who wish to propagate his memory and the cause of social justice throughout the world. But I am categorically against the exploitation of Che's image for the promotion of products such as alcohol, or for any purpose that denigrates the reputation of Che.» See CNN

From the facts, it's clear that the image is copyrighted and therefore any derivatives require author's permission. From Korda's words we can make two inferences:

  • Korda's statement is some sort of license, or could be bona fide understood as such. In that case, the statement, as well-intended as it can be, is incompatible with a free license since it requires that the image be used "to propagate his memory and the cause of social justice". It's obvious from the Lowe Lintas case that the image cannot be used, e.g., in alcoholic beverages advertising. Unfortunately, as I have had no access to the Lowe Lintas filings, I can't say wether Korda sued to claim moral rights according to Section 80 of the Copyright, Designs and Patents Act 1988 or not. However, in these matters, we must ever stay in the safe side.
  • Korda's statement cannot be construed as a license, therefore standard copyright rules apply and the image is non-free.

Therefore, Symbol delete vote.svg Delete. Cinabrium 04:09, 11 October 2006 (UTC)

  • I think that we will never have any problem with hosting these images and in using them in the ways we want to. The matter is different from general non-commercial restrictions, because with a non-commercial restriction you can't even put the image on a CD and sell it for 1$. That is the reason why non-commercial images aren't allowed on Commons and Wikipedia in general.
  • So that's why I think that this image can be safely kept.... / Fred Chess 12:31, 16 November 2006 (UTC)
Fred, I really appreciate your input. However, on what legal basis do you think we could support keeping that image? AFAICT, if you do not "propagate his (Che Guevara's) memory and the cause of social justice", you don't have author's permission to use the image, and that restriction is unacceptable for Commons. Perhaps I'm being overcautious here, so if you have any good legal arguments I could see the issue from a different standpoint. Thanks, Cinabrium 22:57, 16 November 2006 (UTC)

Similar files and derivative works on Wikimedia and en.Wikipedia


Feel free to add to the list if I missed any.

For more information:

If we decide not to delete this file/these files, we should get all the copyright tags consistent with each other.

— Adhemar