The Todd house matter

this page has been copied in its archived state ^[1]

THE Todd house matter unrelated to any episode of Yours Truly, Johnny Dollar

(begin archive copy)

File:Mary_Lincoln_home_lexington_KY_Todd_House.jpg

etal, specifically the Kentucky related files on Commons:Deletion requests/File:George madison plaque.png On 10 March, I informed the interested parties, I had posed the question to an authoritative source regarding my original work, the photograph which included a Kentucky Historical marker. I posed this question to the Kentucky Historical society, based on this webpage within the official Kentucky Government at the bottom of said page it stated

For more information, please contact

Becky Riddle

Kentucky Historical Highway Marker Program Coordinator

(502) 564-1792 ext. 4474

which I did, she responded that she would get in touch with the legal department. Today I received this response

Hi Kevin,

I just spoke with our attorney about this issue. It is his opinion that the text of the markers is not copyrighted. In other words, anyone can take a photo of a marker and post it on a website without having to get permission from the Kentucky Historical Society. I hope that answers your question. Please let me know if you need any more information about this.

Becky

and went back to inform the interested parties, and found the files had been deleted just one day after I informed the page of my query.

At best, I assume in good faith, that user:jameslwoodward was doing deletions at godspeed, and did not read, the last comment on the page, mine. Perhaps, there is a proceedure to halt a deletion request I could have taken to prevent it from occuring until my authoritative answer was received.

At worse, perhaps he disregarded my plea.

In any case, it seems the files, in the case of Kentucky are arguably clear of copyright violations, which is the chief concern, if I am correct. Proceedural issues asside.

K3vin ( talk) 19:26, 16 March 2011 (UTC)

Support I think. The design of the markers is hardly ever a copyright issue. They have at times been trademarked, but I'm not sure most would be eligible for copyright in the first place. The text is another matter. Markers put up before March 1, 1989 without an explicit copyright notice are PD-US-no_notice, and are not an issue. After that, it gets a little weirder. It is possible that certain photographs of the markers, particularly ones which are more from a distance, are inherently fair use (i.e. fair use no matter what use the photo itself is put to); in those situations it is my opinion we should keep those (as they are effectively "free"). But, that is sometimes hard to define, and some photos which are really focusing on just the text may not be defendable that way. But, given the Kentucky response, I think that should be enough. Thanks for doing some legwork on that; it is always helpful. Carl Lindberg ( talk) 02:03, 17 March 2011 (UTC)

Oppose If you look closely the date "1992" is printed on the plaque. Assuming this is when the text was first published, the text is still in copyright, and extensive enough for copyright protection. See my essay Commons:Images containing text. The Society's attorney is incorrect. Dcoetzee ( talk) 02:09, 17 March 2011 (UTC)

But if it is the copyright owner of said text making that statement, it changes things I think. For these at least. Carl Lindberg ( talk) 02:29, 17 March 2011 (UTC)

I would not equate a claim that a work is ineligible for copyright with a waiver of rights. Dcoetzee ( talk) 03:12, 17 March 2011 (UTC)

So you would require a license for rights the only potential owner of which believes do not exist? That seems a bit much for a normal work, let alone a photograph of something of the nature of an historical marker, which meant to inform the public in the first place. I think this goes well beyond common sense (though, I can't see the photo in question, to be honest). Carl Lindberg ( talk) 17:04, 17 March 2011 (UTC)

Of course I would. You think if you forwarded that e-mail to OTRS they would accept it as a release under a free license? What we need to do is contact them again and get a release from them, regardless of their beliefs. We can tell them we're just being careful. Dcoetzee ( talk) 11:46, 20 March 2011 (UTC)

Support The words are bare facts and void of artistic merit. I am not sure how else that information could be imparted Special person house live born had kids Facts are not copyright.  — billinghurst sDrewth 16:01, 17 March 2011 (UTC)

To emphasise my point on this matter, it is not unrealistic for anybody to write that sentence as a means to describe the residence as they are facts. That someone has recorded facts onto a plaque does neither indicate nor confer artistic merit. It is not a poem, nor anything of artistic merit, just facts. Your essay clearly misses the requirement for artistic merit for the text to be copyrightable.  — billinghurst sDrewth 16:15, 17 March 2011 (UTC)

Oppose My delete was based on two things:

First, the text, which has a copyright. The comment above that bare facts are not copyrightable is, of course, true, but any particular expression of those facts always has a copyright. If any of the texts of these plaques had been put in an article on WP:EN with a photo of the plaque, the text would have been removed immediately as copyvio.

The comment that text must have artistic merit to have a copyright is not correct. There is nothing in US law that requires any artistic merit for text or works of art. If a first or second grade student writes an essay on George Washington, once it gets beyond a few words, it has a copyright.

Maybe I should have said creative to use the more modern reflection on the language, but the copyright law is clearly about intellectual property. This line of text is purely information, and descriptive and consisting entirely of information that is common property. Remembering that copyright is about the "right to make a copy" … so on your interpretation of the law, you are saying that no other person has the right to reproduce that line of text. I challenge that interpretation. So if we have a plaque that says "Joe Bloggs, b. 1742, d. 14 April 1799. A revolutionary soldier. Slept here 25 December 1791; drunk." Now presuming that the text is factual that you will allow me copyright on the words? Or how about "Joe Bloggs who was born in 1742 and died on 14th April 1799, was a revolutionary soldier slept here drunk on 25th December 1791" are you now giving me copyright? I put it to you that for there to be copyright to a work that it needs to be more than a sentence that is purely information and factual. I will agree that there is no black line to where copyright starts, however, in my opinion it is not here, and I doubt that any court would find so on this text.  — billinghurst sDrewth 23:23, 17 March 2011 (UTC)

Second, the shape and design of the signs. I would not claim that a simple square sign has any copyright, but several of these have distinctive shapes and bas relief decoration around the text. My opinion is that the sculptor/engraver has a copyright in these, but I don't feel as strongly about that as I do about the text.

I also note that all we have so far is a report of a conversation with counsel who is almost certainly not a copyright expert. I would be very surprised if the unnamed lawyer will be willing to give us a written opinion that these signs do not have a copyright and that is, of course, what we would need if we are to keep them.

Finally, I note that the unnamed lawyer's opinion that

"anyone can take a photo of a marker and post it on a website without having to get permission from the Kentucky Historical Society"

is a far cry from an opinion that such photographs could be used commercially or in derivative works, which, of course, we require.      Jim . . . . Jameslwoodward ( talk to me) 17:11, 17 March 2011 (UTC)

I tend to agree on the text itself -- it could probably carry a copyright. I thoroughly disagree with the shape and design of the signs, from looking at photos elsewhere. At most they could be trademarked. As for the license though, this is the hard part. I do not think we need a license for the text itself; we only need to decide if its use in that particular photo would always be fair use of the text no matter how the photo itself is used. Could you put it on a postcard? For very particular situations like this, I think you could. We need permission to make derivative use of the photo itself, which we have. Separate uses made of items depicted in the photo are a completely different matter. We accept parody works, which are also a fair use defense, because they are still usable in a commercial context (even though a separate work which removes the parody, the licensed portion, would not be OK). It is always interesting to see what aspects of a historical site are mentioned and featured, and which are omitted, and the photo is showing the text in its public context -- which given the nature of that sort of thing in particular, would I think lend itself to an argument that the use of the text in the photo is inherently fair use regardless of how you use the photo (which is the only thing we are trying to determine the license of). Once things get to that point, I think they should be considered "free". Parody is one example, and there are probably a few (limited) others. This type of thing may not extend to items not similar to historical markers for example -- each case is different. I can see some of the other side, but I think in these cases we are taking the letter of copyright law beyond common sense and what the courts would protect. Carl Lindberg ( talk) 17:39, 17 March 2011 (UTC)

My original question remains. What is the cause for such urgency? The email, while hardly a contract, and of course not sourced, can well be verified and sourced. Lawsuits have used flimsier evidence in some cases. Should wikimedia require the Commonwealth of Kentucky to send an email to the commons address regarding releases, duly signed by an attorney, and will then, zealous editors, acting in good faith still claim that a photograph of public property, in a public place in a non commercial setting, is anything but free to use? If that requirement is made, however, it can be provided. Should I forward the email exchanges to the wikimedia archives, should we file a writ with the Commonwealth attorney's office? I understand to err on the side of caution. But in the case of Kentucky Historical Markers, I think the state's opinion is clear. Who is at risk? What is the risk. Is the risk, overruling someone doing what they think is the right thing to do? Hon. Kevin Fillips, Colonel (KY), K3vin ( talk) 19:37, 17 March 2011 (UTC)

I am still ruminating over this. Jim, states, correctly, the text has a copyright, but so does this discussion, and my blog and just about everything. Isn't the question about fair use? Not whether or not something HAS a copyright? Expired copyrights are still copyrights that have expired. Is it safe to assume the statement intended by the Kentucky attorney to be go ahead, and do what you will, we don't care. While we cannot assume intent, I am pretty certain, if this issue has to escalate to an authoritative level in Kentucky. Common sense will prevail. In that, it is in the interest of Kentucky and its citizens for its historical markers to be seen by the wider public, and not just by pedestrians and drivers on the public roadways of Kentucky. I wonder if I could suggest a bill to some legislative friends?

still, Kevin K3vin ( talk) 18:22, 18 March 2011 (UTC)

If you want to claim fair use, then you will need to do that at enWP as a specific case within their guidelines, rather than at Commons. As Commons is shared through all the WMF family, it could be used on many articles and that is beyond fair use.  — billinghurst sDrewth 00:07, 21 March 2011 (UTC)

I am getting caught up in jargon. I am trying to convey, even though it is under copyright, can't it be still free to use, if the copyright owner, does not enforce its copyright, in this case Commonwealth of Kentucky. K3vin ( talk) 03:47, 21 March 2011 (UTC)

The only OUT for copyright is to release it to the public domain in some format. To that there are a number of solutions. Like the US Federal Government they say by legislation that copyright doesn't apply on X Y Z. Whereas some governments look to release their contributions by specific application of Creative Commons licences. Look at various Open Government initiatives, examples are

* http://www.nationalarchives.gov.uk/doc/open-government-licence/ {{ OGL}}

* http://www.data.vic.gov.au/blog/making-more-government-information-and-data-available/163 (and my favourite dataset)

So, to me, the easier solution is a release of information under a Creative Commons licence, and declarations that material sets AAA AAB ... ACD are available under PICK YOUR LICENCE. If this is on an official website of the government (federal / state / ...) and has clarity, then we can link to it, and align images with it. BINGO!  — billinghurst sDrewth 11:45, 21 March 2011 (UTC)

Addendum, I been shown that the Whitehouse has a scheme in place and this allows the speeches of Michelle Obama to be released under Creative Commons. See http://www.whitehouse.gov/copyright  — billinghurst sDrewth 11:06, 23 March 2011 (UTC)

What now? so should I contact my contacts within the historical society to see about issuing a blanket license on the plaques? K3vin ( talk) 17:53, 3 April 2011 (UTC)

Restored. as per K3vin. We have a lawyer's opinion that it is OK. Yann ( talk) 05:35, 7 April 2011 (UTC)