File:Ap munich905 t.jpg ( talk| | history| logs| links| watch) ( article| XfD| restore)

This photograph was published by the Associated Press without a US copyright notice. When it's file is not public domain in Germany, it is ineligible to upload on Commons. Commercial photo agency were strictly forbidden on Wikipedia, according to WP:NFC#UUI. 49.150.116.127 ( talk) 09:06, 17 September 2021 (UTC) reply

• Ok, a couple aspects to this.
  • Being published without a copyright notice isn't enough by itself to be public domain the US; it also had to have either been first published in the US, or out of copyright in its country of origin before 1996. The onus is on you to show all aspects of that; I can't find any such claims. Publication by the AP without copyright notice, and first publication in the US (given that it was taken by a German photographer in Germany), both seem quite unlikely to me.
  • In the much more probable case that it isn't PD, the image itself is going to need to be the subject of sourced commentary in the article, as UUI (which you've helpfully already linked) #7 says. All the article said before the image was removed was that it was " one of the most reproduced photos taken during the siege", which really isn't sufficient, and neither of the sources it cited even said that. ( This poor source, for example, does, though.) Low-effort googling doesn't turn up much else that's usable; there's the recently-offline time.com version of the book that Deadspin cites, and two pages in this that I can't view. In any case, I can't help thinking it'd be excluded from our article as undue weight anyway. — Cryptic 11:00, 17 September 2021 (UTC) reply

  I think it's suitable enough for public domain, although by the Associated Press photographer Kurt Strumpf. Unlike other images by the Associated Press featuring a running Vietnamese girl ( File:The Terror of War.jpg) during Vietnam War. -- 49.150.116.127 ( talk) 12:01, 17 September 2021 (UTC) reply

  Regarding "I think", yes that's precisely the problem. I'd like to see you provide some proof/citations supporting your claims; your thoughts and opinions do not trump the law, and Cryptic has already provided a fairly detailed analysis above. - FASTILY 21:06, 17 September 2021 (UTC) reply

• While DRV is not AfD round two, image and copyright issues do tend to be a specialized topic area, so pinging Keith Edkins, Whpq, Fastily for input. Jclemens ( talk) 18:45, 17 September 2021 (UTC) reply
• Endorse The image belongs to the Associated Press and is eligible for speedy deletion under criterion WP:CSD#F7 as a non-free photo from a commercial source. For non-admins: image, description - FASTILY 20:46, 17 September 2021 (UTC) reply

  Is it okay to upload this photograph on Commons? -- 49.150.116.127 ( talk) 22:30, 17 September 2021 (UTC) reply

  No. Commons does not accept non-free images. - FASTILY 23:14, 17 September 2021 (UTC) reply

  As a purely procedural point, uploading this to pastebin and imgur seems nutty. Why not just temp-undelete, and if you're that worried about it being displayed on pages while at DRV, either temporarily add it to MediaWiki:Bad image list or upload a placeholder image over it and protect? — Cryptic 07:42, 18 September 2021 (UTC) reply

• Endorse. The file was originally uploaded under fair use and the discussion clocked it for its shortcomings regarding WP:NFCC. The argument that this image is in the public domain is shrouded in doubt, so this can not be restored without evidence of such licensing terms. We can not assume a free license and hope for the best. ✗ plicit 01:50, 18 September 2021 (UTC) reply
• So I've been giving this more thought, and I've been getting more and more uncomfortable with how this was deleted. The 2021 FFD is brief and based almost entirely on the non-free use rationale not matching its current use in the article. The previous FFD, for all that it was in 2007, was better attended and more thorough. In particular, it analyzes NFCC#2 in detail; the 2021 just asserts it fails, without any kind of backup.
  Of greater concern is that, just before the first FFD was closed, the nominator replaced the existing, nuanced rationale with what appears in the ==Fair use rationale for Munich massacre== section it was eventually deleted with, which is entirely generic except for its repeated emphasis that the image was being used in ways it wasn't. They even acknowledged that in their edit summary, "adding what would be a valid fair use rationale"; and then doubled down by edit warring on the image description page for a week. How they got out of it without an indef block I can't begin to guess.
  Now, DRV doesn't usually take notice of 14-year-old deletion discussions, and we've become more strict about usage of images in particular. I still don't think that the ten words in the image caption that were specifically about this image are quite enough to justify non-free use. I can certainly see a modest expansion being sufficient, though, especially if what the Deadspin article says is true. (I have no reason to think it isn't, though the offline sources it cites in turn should be checked directly. I wouldn't consider it a reliable source in itself, though we do link to it about 1200 times from mainspace, so what do I know.)
  So I guess where I'm standing now is to leave the image deleted, but not allow this FFD to stand in the way of restoring or reuploading the photo if more discussion specifically about it is included in Munich massacre or some other article.
  Jclemens pinged the participants of the 2021 discussion; I'm going to do the same for those of the 2007 one who've edited in the past year. I think @ El C, Howcheng, Nv8200pa, Quadell, Raul654, and WilyD: is everybody. — Cryptic 07:42, 18 September 2021 (UTC) reply

Assuming that the copyright situation hasn't changed, my reasoning is still the same as it was back then. Use of the image is allowable only if we are discussing the image itself and its impact on society or culture. If it were included in the article without any commentary, then its inclusion would only be decorative. — howcheng { chat} 07:54, 18 September 2021 (UTC) reply

I tried to figure out what 2007 discussion is being referenced here, but it remains a mystery to me. Regardless, I don't think it's really possible to have a reasoned discussion about image copyright on the project, so I decline to participate. El_C 10:51, 18 September 2021 (UTC) reply

The 2007 discussion is here. Hut 8.5 17:01, 18 September 2021 (UTC) reply

• Endorse there is no evidence that the image is in the public domain, and the burden of proof for showing that is on those who want to use it in Wikipedia. As has been noted the fair use rationale was not nearly enough to justify using an image from a press agency, WP:NFC#UUI expects that the image be the subject of sourced commentary in the article, all the article had was an unsourced statement that it was an often reproduced image. Hut 8.5 16:58, 18 September 2021 (UTC) reply
• Endorse. A straightforward proper deletion. Free content is important. — SmokeyJoe ( talk) 03:17, 19 September 2021 (UTC) reply
• Endorse. Insufficient evidence that the image is free; this would need to be proven and the burden of proof is on those looking to include it. To the extent the image might be fair-use, it is likely to interfere with commercial opportunities for the image and fail NFCC on that ground (though this hasn't been argued in FFD so I mention it as an observation only). Stifle ( talk) 08:11, 21 September 2021 (UTC) reply