Commons talk:Own work

What on earth is Mauricio Valero Mauricio Valero doing on this site? Anna 10:37, 2 May 2008 (UTC)

The reason for that was an improper edit at Template:Own work/lang. I've reverted it. --GeorgHH • talk   08:24, 3 May 2008 (UTC)

Deutsche Entsprechung

Warum zur Hölle soll ich mir das auf Englisch durchlesen? Es ist allerhöchste Zeit für eine deutsche Entsprechung! --17:07, 15 July 2020 (UTC) — Preceding unsigned comment added by Tecumseh*1301 (talk • contribs) 17:07, 15 July 2020 (UTC)

Possible incorrect claim

This draft has:

NOT OWN WORK:

Photos of you not taken by you. The copyright holder is the person who takes the photograph unless it is a formal work for hire.

This appears to be based on a naive interpretation of who the creator of a work is. The photographer is the *artist* who composes the work. There is an example of this, discussed by an apparent expert in copyright law, at [1]. In the case involved, w:Ellen DeGeneris tweeted a "selfie," which was retweeted 3 million times. Publishing the photo, the AP requested permission from Ellen. However, Ellen had handed the camera -- her phone -- to someone else. The expert considers that Ellen was, nevertheless, the creator and copyright owner, with the right to grant or withhold permission. And that seems consistent with common law to me, even though copyright law can be arcane and counterintuitive. --Abd (talk) 17:50, 21 February 2015 (UTC)

Actually, there is 2 different cases here, which lead to 2 different copyright situations:

1. A photographer (professional or amateur) chooses to take a picture of someone, and then gives the picture to the subject. The copyright belongs to the photographer.

2. You choose the place, the pose, the time, the camera (probably yours), and ask someone, known or anonymous, to take a picture of you. You owns the copyright.

Regards, Yann (talk) 18:27, 21 February 2015 (UTC)

I agree with Yann, here, except that there are lawyers who have claimed, no, the person who pushes the button owns the copyright, just as there are lawyers who have claimed that the person who set it all up owns it (if the button pusher's involvement was de minimus, owns it, and some claim that both people own it, as a joint work). The practical issue here is whether or not Commons is going to require permission from someone who may be completely unknown, for such a selfie, or will allow a subject to claim "own work," which is probably what the person believes. As to the reality, there is no reality unless a principle is tested at law. Which may never happen, until some bystander snaps a photo that comes to have high value and then, seeing it, says "I took that!" and sues for the copyright. There will be the issue of proof, but assuming that the subject remembers and tells the truth, still, I would not care to predict how a court would rule. I do think that there would be substantial distaste over the claim, and that can affect courts. --Abd (talk) 19:42, 21 February 2015 (UTC)

When these lawyers do not agree, they may not talk about the same issue. For Commons, we need first to have some common sense. For ordinary pictures of ordinary subjects (you and me), assume good faith that we are in the second case unless we have evidence that we are in the first (professional look, special settings, famous photographer, copyright claim from the photographer, etc.). Regards, Yann (talk) 20:05, 21 February 2015 (UTC)

Thanks, Yann. I agree. Should the project page be changed? --Abd (talk) 22:08, 9 March 2015 (UTC)

I think so, but it seems all experienced users do not agree with that. @Jameslwoodward and Clindberg: ? Regards, Yann (talk) 08:10, 10 March 2015 (UTC)

I don't agree, and I don't think the DeGeneris case is on point.

The hard part has always been framing the image and pushing the button at exactly the right moment. If that were not so, we'd all be Alfred Stieglitz.

A case where a person set a camera on a tripod and himself on a stool, posed himself by looking in a monitor wired to the camera, and then had an assistant push the button would be a case where the copyright would rest with the subject.

The Degeneris case is a special case, because it's a selfie -- there was no real opportunity for good framing or choice of expression as is the case with the photographer standing behind the camera looking at the scene -- the photographer was in the shot, so the decision does not surprise me, but it's not on point for cases where the photographer is behind the camera.

In the ordinary case, where person a hands a modern point and shoot camera to a bystander and the bystander takes the picture, it seems to me obvious that the bystander owns the copyright. Think of the creative aspects of photography and who exercises them:

• Picking the right moment to shoot - bystander
• Framing the subject in the image - bystander
• Distance from camera to subject - bystander, within limits set by subject
• Focal length -- wide or tele - probably the default, might be changed by bystander
• Choosing the background - general background chosen by subject, but bystander will affect it by moving side to side
• Exposure - usually set by camera, but bystander might use exposure lock
• Focus and depth of field - usually set by camera

-- Did I miss any?

So, of my seven creative aspects, only one is mostly under the control of the subject when he hands the camera to the bystander. The most important two are chosen by the bystander, the actual photographer. I completely fail to understand how the fact that the subject has chosen the background for the image and pressed the "ON" button on the camera is more creative than framing the subject and picking the right moment.

I think one of the problems here is that you are assuming that it's a shrug -- that the bystander is never going to know and so why not just ignore him. Although that violates COM:PRP, some might think it was OK, but for one thing -- all Commons images are supposed to be educationally useful. We're here because we expect that our images are going to be used and seen, both on Commons and elsewhere. What's the reaction of the bystander going to be when he sees the Wikipedia article on famous person John Smith and realizes that he took the picture that Smith claims is "own work". Is it morally right to ignore him? I think not. .     Jim . . . . (Jameslwoodward) (talk to me) 10:38, 10 March 2015 (UTC)

When I ask a passer-by to take a picture of me, I set my camera in automatic or program mode (so the passer-by doesn't do anything here), I choose the distance, the focal length, where the person takes the picture from (so basically I choose the framing and the background), and I keep still while s/he takes the picture (so the "right moment" is not really chosen by the button-pusher). So really s/he does not choose much. In that case, I don't see how s/he can get a copyright over my picture. Regards, Yann (talk) 11:16, 10 March 2015 (UTC)

• What is happening with Jim's position -- which has been vigorously asserted in deletion discussions -- is that a literal reading of law and certain interpretations are being applied outside of practical reality, and then imaginary "moral" considerations are being applied that are irrelevant to copyright, and the purpose of Commons is being lost. If I hand a camera to a bystander to snap a picture of me at, say, the w:International Conference on Cold Fusion, and the bystander obliges me, hands the camera back, taking no further role and expecting none, his name unknown, then may I release that image under a Commons license, or does *nobody* have permission to use it? It is obvious by the act of handing over the camera without question or reservation that the person has released rights, and I'm sure a court would agree.
• Would it matter if I later become famous? If I have released the image for "free re-use" at Commons, could the bystander later claim ownership against those who then re-use the image? The argument being made for "bystander copyright" would make the image unusable, which is the opposite of the intention of copyright law, which is to encourage creation and publication.
• It is extremely unlikely that a bystander could later appear and claim copyright and succeed. I've been collecting evidence at User:Abd/Bystander photos, contributions are welcome there, and I found a discussion exactly on point at "a site for photographers by photographers". The opinion of professional photographers on this issue was clear: some thought that there might be a technical copyright for the photographer, some thought that the provider of the camera had copyright, and none thought that a professional would ever assert it, and such a "helpful bystander" would probably lose in court if they tried. Is there any contrary evidence?
• My conclusion is that there is no reasonable risk of bystander claim making hosting at Commons a copyright violation, and re-use the same. --Abd (talk) 13:13, 10 March 2015 (UTC)

Commons Precautionary Principle explicitly forbids us to consider that it is unlikely or impossible for the copyright owner to sue. We do not keep orphan works even when we are completely sure that the copyright holder no longer exists. Abd's line of reasoning violates one of our core policies. .     Jim . . . . (Jameslwoodward) (talk to me) 11:13, 12 March 2015 (UTC)

Jim is assuming his conclusion in order to apply the PC. The bystander is not the copyright owner or holder in the common case of a "bystander selfie." Has the issue of "bystander selfie" ever been considered by the community? --Abd (talk) 14:38, 12 March 2015

Yann, several comments: Sure, you may set up the camera and so forth, but that doesn't mean we can assume that in every one of these cases. And, even if you do, do you really tell the bystander exactly where to stand and object if he moves in or out a few feet? Do you actually tell him "Frame this so I am in the lower left" (center, upper right, whatever)? Does the bystander never say "Smile" or otherwise try to get a different expression on your face? If there is anything moving in the background, does the bystander never wait for it to be in a good place? Does the bystander never move a little to one side or the other so that you don't have a telephone pole growing out of your head? I could go on....

I've said before that I might be OK if we said it was a joint work, but I just can't imagine how the subject can claim to be the only creative force in a photograph taken by a bystander. I firmly believe that there is creativity in photography, but I can't see that it rests with someone whose only contribution is supplying an automatic camera and standing in a particular location. .     Jim . . . . (Jameslwoodward) (talk to me) 11:13, 12 March 2015 (UTC)

Depending on circumstances, a bystander selfie might indeed be a joint work. Jim has forgotten the purposes of our review of images, which is not to rule on complex issues of ownership, with all the possibilities, but rather on the license status of images. If the work is the sole work of the bystander, then, obviously, only the bystander may release it. However, if it is a joint work, and at least in the U.S., the subject may release it regardless. The issue of joint work can be extremely complex. We don't need that complexity. In an ordinary bystander selfie, the image is created through an interaction between the subject and the bystander, where -- ordinarily -- the bulk of the creative work is that of the subject, starting with creating the opportunity, the context, soliciting assistance, and then taking custody of the latent image, and later publishing it, making sole choices about that. The bystander's role is ordinarily minimal, by comparision. Yes, there may be creative contribution. So in my study of this, I point to a discussion by professional photographers of bystander selfies. The consensus: while they might be able to claim ownership, they never would, it would be offensive, unless the subject agrees to it. As bystanders, if asked, they take the photo and walk away. They said they might use extensive creative skill, but so what? They knew and acknowledged that the subject expected to own the image. There is no case law specifically on this because nobody sane would raise the issue. A court would almost certainly throw the case out at first impression, and we would never see what is legally published, i.e., appeals. What courts have decided are more difficult situations. And those decisions are not as simple as Jim thinks. It is not necessarily the photographer who owns the copyright! It usually is. --Abd (talk) 15:27, 17 March 2015 (UTC)

Underneath these comments may be unexamined assumption or belief about what it means to be the author or creator of something, as if it were a matter of "truth," when, in fact, the concepts involved were invented, they are not absolute. The issue was examined in detail in a 1996 law review article, where the author covers what he calls the "majority view," the "minority view," and points out how those two views, which appear to differ, have been the basis of actual court decisions. He then supplies what I will call a synthetic view. The synthetic view, I'm surprised to find, is roughly what I've been considering. The "majority view" conflicts with widespread public assumptions about copyright, which is why it has caused disruption here. Users claim "own work" when, by the majority view, it is the work of someone -- or something -- else. As the author points out, the issue is actually complex.

Above, Jim suggests that practical considerations ("nobody exists who could or would claim copyright, other than the user releasing it here") take no role in Commons decisions, but courts do consider practicality and enforceability, and the "majority view" is largely based on simplicity and relative ease of application. However, there are rare situations where the majority view leads to apparent inequity and difficulty of application. We are looking at one of them. The author does not then flip to the minority view. I have been searching and asking for examples of court decisions on point, and neither have I found them nor has anyone supplied one.

The article: DEFINING "AUTHOR" FOR PURPOSES OF COPYRIGHT, 1996. Enjoy. --Abd (talk) 13:15, 12 March 2015 (UTC)

• m:Wikilegal/Authorship and Copyright Ownership#The Example of the Third Party Photographer:

If someone wanted to take a picture of himself at a particular time and place, posed in a certain manner, but did not have a timer or tripod, and asked someone else to take the photo for him, most likely the person asking someone else to take his photo would be considered the sole author. This is because the person whose photograph is being taken had sole control over how the photo was taken – they chose the place, pose, etc., and likely the angle and lighting as well. As the sole author, the subject of the photo would be the sole copyright holder and could then license or display his work however he preferred. This scenario probably covers most situations where a friend or stranger is asked to take a picture of the subject without advance planning.

(My emphasis.) Unless that WMF "preliminary perspective on a legal issue" has been superseded, this is precisely on point and quite clear, and this, which is in accord with common understanding, if made clear on Commons, could avoid much useless disruption. --Abd (talk) 16:26, 12 March 2015 (UTC)

"Probably covers most situations" does not meet our standards of proof -- we require that an image be proven free beyond a significant doubt. .     Jim . . . . (Jameslwoodward) (talk to me) 16:57, 12 March 2015 (UTC)

Opinions of WMF legal department and others confirm me. @Jameslwoodward: , I think that invoking Commons Precautionary Principle for deletion here is an abuse of that principle. As Abd said, not only common sense, and some well argued positions show that the copyright of picture taken by a passer-by does not belong to him/her. Regards, Yann (talk) 16:47, 12 March 2015 (UTC)

The only opinion from WMF legal that I have seen is preliminary and from an intern. Have you seen something more definitive? Why is an abuse of principle when the PRP explicitly says that we may not consider:

"The copyright owner will not bother to sue or cannot afford to."

"The copyright owner will never find out."

Abd used virtually those words above to explain why we can accept this idea..     Jim . . . . (Jameslwoodward) (talk to me) 16:57, 12 March 2015 (UTC)

I'm attempting to understand policy. As part of this, I may present half-baked arguments, seeking definitive response, and I'm finding it. What I wrote above is dicta, I'm not even going back, because I'm not here to be right, I am here to resolve an issue that is causing disruption, so that I can effectively assist a Wikiversity user, without creating a pile of useless deletion/undeletion discussions. Jim is assuming that the bystander is the "copyright owner," thus contradicting that previously-undisputed WMF opinion, which is in accord with the best academic legal analysis I've been able to find. There are, in fact, a series of intertwined issues here, and a solution that could cut the Gordian knot. --Abd (talk) 17:33, 12 March 2015 (UTC)

Jim, Commons Precautionary Principle is here to safeguard us, reusers, and the WMF against uncertain copyright situation (a recent image claim as "own work" but which seems to be copied from the web). It should not be used as a blanket policy, specially when there is no real risk for anyone (this case or 100 year-old images with unknown author). Regards, Yann (talk) 08:00, 13 March 2015 (UTC)

OK, I'll take another try at it. In both cases, assume there's a nice cloud formation and scene behind.

Case 1. I turn on my automatic camera and hand it to a bystander and ask him to take a picture of me. He does so.

Case 2. I ask a friend to take a picture of me using his automatic camera and e-mail it to me. He turns on his camera and takes the picture.

I hope we can agree that in Case 2, my friend would own the copyright, even though I chose the location. To argue that I own the copyright in Case 2 goes against all copyright law about photographs.

Why then, do you believe that I own the copyright in case 1? Surely mere ownership of the camera cannot determine copyright. Arguing that somehow I had more creative input in Case 1 than in Case 2 is not consistent with the facts.

To some extent, both of you are arguing that it would convenient if we adopted this policy -- that it is an easy way out of the problem that a bystander photograph is essentially an orphan work and unusable on Commons. I agree that it would be convenient, but our policy on orphan works is well established -- we don't accept them, even when it is perfectly clear that there is no one who has any personal or legal interest in the work. I think that if you want to change the policy with respect to bystander "own work", you need to change the policy with respect to all orphan works. That is something I could work with you on. I'd be happy to have us accept truly orphan works on Commons, provided they had an appropriate tag. But I can't accept your arguments that ownership of the camera determines the copyright holder. .     Jim . . . . (Jameslwoodward) (talk to me) 13:16, 13 March 2015 (UTC)

The creative input is the same in Case 1 and Case 2. Jim assumes that in Case 2 the "friend" would "own the copyright," and generally Jim misses that the ownership might be joint. There is case law on this. The person who set up the situation, including what was photographed, owned copyright, at least jointly. The photographer had sued the other party for copyright infringment, and the court ruled that the other party, because of the creative contribution involved in setting up the photographed scene, was a co-owner, and therefore could use the image as he saw fit (i.e., in a book). For us, the use is a release under a free license. A co-owner can do that, and if the other party is injured, they may have a cause of action against the other co-owner, but it is not copyright violation and someone relying on the release is not a party to the action. It's released. We need know no more.

Case 2 is not like Case one, for the custody of the image is far different. In Case 1, the bystander has custody of the camera for a very short time, and retains nothing; often the person's name is not known, but that is, as well, not crucial.

The prime point that a court would notice is a complete lack of interest or intention in ownership, and a complete surrender to the subject, who may delete the image, or use it, with no notice or involvement of the bystander.

In Case 2, the image is in the custody of the bystander, and the bystander could claim copyright before turning the image over. Depending on the situation, the bystander might lose a friend! But they could do it. They would have a copy of the image, if they keep it. It is their camera. They could prove that they took the photo. This is why "bystander selfie," as I've defined it, is restricted to a camera provided by the subject. It avoids that entire complex possibility. --Abd (talk) 15:42, 17 March 2015 (UTC)

I am not arguing mere convenience, though fulfilling Commons purpose efficiently is, in fact, part of my developing position. The status quo is regularly generating conflict and disruption. I am not proposing a change to policy, that is a misunderstanding caused by Jim believing that his position is policy. It is not policy. I have been studying deletion discussions, see User:Abd/Bystander photos, and User:Abd/Bystander photos/Deletion discussions. Notice, these are long and detailed, they are research compilations, not finished argument. Those pages are an opportunity for any user to correct errors, and to notice and comment on anything missing.

While there is a relationship to "orphan works," bystander selfies are not orphan works, they have an easily identifiable and known owner, and, in fact, without that owner's permission, they would be unusable. What Jim is doing is reducing contrary arguments to straw men. Camera ownership is a factor, not conclusive, as Jim certainly knows. If anyone is interested, I highly recommend study of DEFINING "AUTHOR" FOR PURPOSES OF COPYRIGHT, a law review article on the point of who the "author" of a work is, and the WMF legal opinion, both of which come up with positions very much in contrast to Jim's. The person who pushes the button is not necessarily the "author," for copyright purposes, and the WMF lawyer specifically was considering bystander selfies. The person pushing the button is not the copyright owner, in these cases. Jim, so far, has ignored this claim. If this is not correct, I'm very much looking for legal opinion and case law on point. --Abd (talk) 22:31, 13 March 2015 (UTC)

Consider case 3: I ask a friend to take a picture of me using his camera. He first handover the camera to me. I turned the mode dial to "M" and set ISO, aperture and shutter speed. Then I switch to Manual focus, focus and compose using my friend as a dummy subject. I set the Exposure Compensation and lock the exposure. The we swap our position to each other and he press the button to take a picture of me. Who own the copyright? :) Jee 16:00, 13 March 2015 (UTC)

This is a reductio ad absurdem argument, setting up a situation where almost the entire creative work is by the subject. First of all, I have no problem answering Jee's question. The subject does. But those contortions are probably not necessary. Some prior discussions of this topic have been resolved by arranging for a release from the "photographer." However, that merely makes the matter absolutely open-and-shut, and the remedy is frequently not available. We can do much better, by following common sense and common law (which are related), and actual interpretation by legal experts, instead of our amateur lawyers here, reasoning by analogy. In so doing, we will be following, as well, actual practice, as shown in many deletion discussions, with relatively wide participation, and I think I have only found the tip of the iceberg so far.

The goal of this discussion is to refine and clarify Commons policy. Because I knew this to be controversial, I did not simply edit the proposed policy page, even though it is actually incorrect. (It states Jim's interpretation, which is not law. It is a statement of what is usually true, but is stated confusingly:

["Not own work:] Photos of you not taken by you. The copyright holder is the person who takes the photograph unless it is a formal work for hire. Self portraits are acceptable as "own works".

"Copyright holder" is not as simple as stated. The copyright holder, at law, is the person who creates the work, also called the "author." That is the language used in law. Not "takes." We interpret "takes" as pushing the button. Which may also include framing, or not, depending on conditions that Jee has shown as a possibility. There is a whole range of possibilities, but there are some overriding factors which have been missed. These will be covered in a document designed to help Commons make a fully-considered decision on this, which will boil down all this discussion.

Without such a discussion and decision by the Community, it can be predicted that there will continue to be disruption, disagreement, and, notice: users routinely claim "own work" for bystander selfies. And then some of us call them liars. Having one's work deleted is bad enough, tossing "liar" on top of it is beyond the pale. --Abd (talk) 22:31, 13 March 2015 (UTC)

Reviewing this, I see that I misread Jee. This was not a simple bystander selfie. In the definition of that, the camera belongs to the subject. That makes it seem like the ownership of the camera is the issue. No, it is an element, but not the central issue. A much larger element is control of the latent image. There is a case where a photo of a person, a reporter, was taken with a camera and the undeveloped film was handed over to the reporter, and Commons, after extensive discussion, decided that copyright was with the reporter. (See my Discussions page.) That is more toward possible controversy than "bystander selfie," which is deliberately restricted to a clear and actually not legally controversial case. In Jee's situation, the subject exerts substantial control, with the bystander's camera. Jee did not mention custody of the image and subsequent behavior, as if copyright would ignore all that. In fact, these are all elements a court would consider, as it shows the intention of the parties. With a bystander selfie, the circumstances show the subject as an author, at least. Since a co-author may -- at least in the U.S. -- unilaterally release the image, our Commons question is resolved. We need not decide if the bystander might be a co-author.

This has been missed in many discussions of bystander selfies. The subject is, in this case, a co-author at least, because of the essential creative role of the subject, who is creating what is to be photographed. The standard argument that "the copyright is owned by the person who presses the button" is not only incorrect, for it can be otherwise, but it also neglects co-authorship and the consequences of such. --Abd (talk) 15:12, 17 March 2015 (UTC)

Thanks. So we are very much inline with the opinion of the legal: "Particularly important for determining authorship is the amount of control the author had and if the final product duplicated his conceptions and visions." When we come back to a usual bystander work, such works are usually carried out in "auto mode" where the photographer has a very limited role. In a close inspection, we can see "the amount of control the author had" is mainly on composition as all other factors are decided by the camera whose work are copyright ineligible (as a machine). It is very difficult to determine who "author" the composition ("conceptions and visions"). In most cases, it is bystander even if he is simply acting upon the request of the subject. There may be some involvement from the subject too if he himself choose the place, background, etc. In such cases, it will be a jointly owned work. I remember, once LuisV (WMF) stated that "[for joint ownership] each individual owner can make licenses, publish the work,etc., without approval of the other." Jee 02:49, 14 March 2015 (UTC)

Thanks. From my research, and by far, almost all "bystander selfies" will fall into a simply-described category where the subject may claim the right to release the file, which is all we really care about here, and there is no need for a complicated discussion of the "amount of control." That is, it is possible to argue for "joint work," for example, but the bystander has, by clear behavior, as would be seen by a court, abandoned that possible claim. You are correct about joint ownership, at least as far as US law is concerned. It's not clear that a bystander in an ordinary bystander selfie could even claim joint ownership copyright, and prevail, but we don't need to know.

See User:Abd/Bystander_photos#/Joint_ownership and subpage linked. --Abd (talk) 18:49, 14 March 2015 (UTC)

Draft policy

Abd/Bystander photos/Bystander selfies in my user space is a draft policy on "bystander selfies," and there is justification for the draft on the attached Talk page. Much of the argument given in the discussion here is probably moot. The issue is who owns copyright to a bystander selfie, and legal opinion and actual practice weighs in favor of the subject owning it (as a general principle), and there is no contrary case law or specific statutory provision. Comment there is welcome. --Abd (talk) 23:38, 13 March 2015 (UTC)

It is my intention to edit the draft policy page according to the principles on the page linked above. The statement that "Photos of you not taken by you" are not "own work" will remain the general principle. A "bystander selfie" is a special case, where the person who would otherwise be considered the photographer, were it their own camera and truly their own work, has effectively surrendered any rights though the context and lack of claim. The creative activity, "authorship," in a bystander selfie is that of the subject, not the bystander, whose contribution is de minimus. See the talk page attached to the user page document, linked above, for basic legal justification. --Abd (talk) 02:30, 17 March 2015 (UTC)

Yours is a personal opinion, unsupported by either the case law which you have been given or the Commons community. You have no consensus to make any changes in Commons policy. .     Jim . . . . (Jameslwoodward) (talk to me) 13:07, 17 March 2015 (UTC)

I have been reviewing case law and expert legal opinion, including WMF legal opinion, as well as actual practice on Commons where deletions have been widely discussed, and find a significant difference from Jim's intensely expressed opinion. What Jim and another have "given" (above) has been incorporated and reviewed in my linked study. One comment was a dense compilation of case law, nearly all of it off point, being used by defective analogy to apply to bystander selfies. All or nearly all of it was covered by the law review article I have cited.

I am proposing no change in Commons policy, only a clarification, and because this issue has come up many times, and because a common error is repeated as if it were fact, causing actual damage and disruption to projects, it is important that the issue be resolved.

Bystander selfies, while very common, are a narrow situation, easily defined, where there is an exception to a common principle that Jim has frequently asserted as if it were an absolute law, that the person who pushes the button owns the copyright and not the subject.

The legal reality is much more complex than that, but in the case of bystander selfies, the matter reduces to simplicity for Commons purposes.

I intend to edit the page, it is a draft. If we can settle on a draft, I will then move to take the page into policy. I do not have any right, as an individual, to make Commons policy, nor does Jim. The community will decide, given the opportunity.

I am still looking for relevant case law and Commons discussions. Case law, expert legal opinion, Commons precedent (actual practice), or relevant argument may be asserted here, or on User:Abd/Bystander photos or the attached Talk page, or on User talk:Abd/Bystander_photos/Bystander_selfies. My goal has been to collect and understand, as far as possible, everything available on the topic before moving ahead. For prior deletion discussions, involving bystander selfies or similar, links and descriptions may be added to User:Abd/Bystander photos/Deletion discussions.

As well, whatever new is asserted here will be incorporated there. Those pages are study pages, not resolved or edited and boiled down to what is essential. Thanks. --Abd (talk) 13:45, 17 March 2015 (UTC)

• I have edited the draft policy to correct the standing error that "Photos of you not taken by you, unless a "formal work for hire," are necessarily not "own work." It is, for example, possible that a work has joint authorship, and a joint author may readily claim "own work" for purposes of granting license, at least in the U.S. Then there is a special case, bystander selfies, where "own work" is quite obvious and commonly understood.

That is, an argument can be made that the bystander is a co-author, but it is very difficult to argue that one who had the idea for the photo, arranged the circumstances, owned the camera, found a bystander to hold it and press the button, who posed for the photo or acted in a video, according to his or her plan and purpose, and who then was given the camera back, with the bystander not holding the latent image or data, and the choice and ability to publish is only in the hands of the subject, is not at least a co-author. The WMF opinion was that such a person was likely the sole author and copyright owner. We have vastly complicated the issue by insisting that a release by the subject here is invalid, on the incorrect idea that "the copyright is owned by the photographer." Legally, the ownership is with authors.

The ownership of the camera is a detail, not essential, except that if it is the bystander's camera, the bystander will normally walk away with the data and could pursue a copyright claim, though he or she would still have a problem of the subject's release of a personal photo! The subject, with an image on the subject's camera, has no legal impediment to a copyright claim at all, and such a claim would be sustained in court.

Because Commons discussions have gone both ways on bystander selfies, it's important to resolve this. As matters stand, it seems that if one is a prominent Wikipedian, or there is a constituency wanting the image for articles (i.e., the subject is prominent), the image will be kept, and if one is not so recognized, the user is castigated for lying for claiming "own work," and the images are deleted. So let's get it straight! A "bystander selfie" can be very simply defined, and we have substantial legal opinion and case law behind the issue. --Abd (talk) 20:07, 18 March 2015 (UTC)

Approval of this draft

Before the change I just made, there had been no change of the draft since January 2014. Commons needs an explanation of "Own work," because it is often misunderstood. Is there dissent to the draft as it is? Arguments were made above, but have the issues been resolved? --Abd (talk) 02:52, 23 March 2015 (UTC)

Apparently there is dissent, by Jameslwoodward, who reverted my change with the edit summary: (There is no consensus for these changes. Abd's opinion is not accepted by a majority of the community.)

I have asked for pointers to prior discussions which would establish what "the majority of the community" has expressed.

Above, opinions were expressed by Yann, Jameslwoodward, and myself. Yann's position was roughly aligned with my own, Jim's was opposing. Neither of the other users looked at the concept of joint authorship. Rather, Yann considered the possibility of sole ownership by the subject (the WMF legal position), and Jim appears to takes the extreme position in the other direction, no ownership by the subject. He has, nowhere that I have seen, considered joint authorship. Maybe I missed something.

I have covered what has been provided as to discussions of the issue on the page where I studied this matter. Jim is correct though, in that my "opinion," as expressed here, has not been accepted by a majority, because it has not been submitted for majority approval. If we cannot find consensus here, that's what will happen. Because the discussion above began when I was less informed on the issues than I became, instead of going over all that is above, I'll ask Jim, or anyone, to explain what is incorrect about the change I made. See Bystander selfie for the legal argument. Thanks. --Abd (talk) 02:01, 24 March 2015 (UTC)

• User:Yann raised this issue with Jameslwoodward on Jim's User talk page (permanent link). Jim responded, and so did I. The discussion outlines the issues. --Abd (talk) 20:23, 24 March 2015 (UTC)

  Apparently you're down to one difference, not counting the good riddance of an "ordinarily" weasel: Is a derivative work with "sweat on the brow" (or as you wrote, substantial modification) a new author, a coauthor, or nothing? Sounds simple enough for an RFC with three choices, but only two choices would be better. I'm not neutral, but obviously "co-author" must be one of the two or three choices. –Be..anyone (talk) 08:51, 26 March 2015 (UTC)

Thanks, Be. The issue here is the common misunderstanding of copyright law, as expressed: Not own work: Photos of you not taken by you. The copyright holder is the person who takes the photograph unless it is a formal work for hire. It is true that usually the "person who takes the photograph" is the person who owns copyright, and there are a number of exceptions. A /Bystander selfie is one, easily defined, per WMF legal opinion and a series of legal arguments which have been presented. Where someone other than the photographer substantially participates in the creation of the image, per similar arguments, as one issue, and then the custody of the image, as emphasized by the WMF lawyer, which indicates the intention of the parties, the other may become at least a co-owner and sole ownership is also possible. There is another exception as shown in Brod v. General Publishing Group, Inc.

What has been stated here (and often on Commons) is simply not true. The photographer is not necessarily the only owner. In Brod, the photographer was a professional, hired by a writer, who was putting a book together. Objects were arranged by the writer for the photographer to photograph. The photographer used his expertise to take photos, providing his equipment and creative work; however, the writer created what was photographed. See the case for more details. The writer paid the photographer, who was not an employee, but an independent contractor, so this is not what is called, somewhat confusingly, "work for hire." The writer sold the book, which was published, crediting the photographer. The photographer, however, sued the publisher for copyright infringement. The photographer lost. It was ruled that the writer was a co-author and could release the photos. The photographer was also a co-author, and was entitled to a share of profits, but that would be a matter for an ordinary claim. Not a problem for the book publisher! If the writer had ripped off the photographer, it would be a problem for them to work out. Not copyright violation.

So Brod shows another exception, besides bystander selfie. This may or may not be so relevant to Commons and it is not so easy to write a generic guideline on the matter. However, Brod does establish co-ownership for other than the photographer, where there is material participation, that's the point we can take from it.

To answer the question in the edit summary, this would be a guideline to the use of the term "own work." (A user has been called a liar for claiming a bystander selfie as "own work." That should not happen!) Once this is established, it is possible that a policy would be created, but that would be an additional step.

The "sweat on the brow" argument is a red herring. The work of the bystander is not the issue here, at all. A bystander, under some circumstances, might be able to claim co-authorship. Ordinarily, not. A bystander is not an ordinary photographer, the conditions are very different. There is no very specific case law because the matter, in the real world, is not controversial, and nobody has apparently ever filed a case that got to an appeals court, because it would be a complete waste of time for everyone.

As almost anyone on the street would think, the subject of a bystander selfie owns the thing. They may do with it whatever they choose. They may delete it without fear that the bystander will claim they have destroyed his property. They may print as many copies as they like, and, yes, they may license it for use anywhere, by anyone. With a bystander selfie, the "photographer," ordinarily, can't do any of that, nor anything else with the image, practically speaking, and we forget, sometimes, that courts are concerned with practicality.

That is why the bystander selfie case is so clear, even though it seems to contradict the "usual principle" that the photographer owns copyright, i.e., the "one who takes the photograph." "For hire" is also a red herring, making the matter seem like countless cases of hired or contracted photographers. A bystander selfie is not "for hire." That argument has been made, by the way, with the Ellen selfie, that there was some sort of informal hiring. Of course, that argument was legally deficient. Major news agencies printed the photo on Ellen's release, because there was no risk to them! They really did not care about the fellow who held the camera, photographing himself and Ellen and a whole group of people. All those people, *obviously*, allowed Ellen to arrange this. Intention matters! And in that case intention was clear.

As was covered by the WMF lawyer, "the main factors the courts look at when determining authorship is the degree of control the person exercised over the final product and the degree of originality employed."

With a bystander selfie, the subject has total control, and the bystander only has control for a very short time, while holding the camera. If a bystander uses their own camera, and emails the photo to the subject, this is quite different. In that case, the bystander is clearly, at least, a co-author, i.e., co-owner, and the exclusive ownership of the subject would become much more questionable.

We have made this very complicated by attempting to only argue the "degree of originality." Rather, the WMF lawyer assigned sole ownership to the subject. The point is that if a lawyer, who has researched the topic, concludes "sole ownership," the lesser claim of "co-ownership" is easy. And if the subject is a co-owner, then the subject may follow common sense and common understanding, claim "own work," and a lot of DRs based on "couldn't be own work, because uploader is the subject" would have been avoided, and will be avoided in the future.

Unless the bystander is claiming right to release, here, we don't need to decide on the rights of the bystander, only those of the subject.

The WMF attorney's position, if adopted, probably works world-wide, because she finds sole ownership, unless there is some specific and contradictory law elsewhere. We would be interested in any case law on this, anywhere in the world. The co-author position, though, works for the U.S., which may be enough for us. --Abd (talk) 18:24, 26 March 2015 (UTC)

IANAL and lost with the fine print of legal arguments, and my trust in super-protect global ban 3D-coins anti-EU privacy WMF lawyers adds up to something near zero, but @Clindberg: almost always manages to convince me. –Be..anyone (talk) 09:48, 27 March 2015 (UTC)

Nevertheless, that is the closest we have to an actual opinion of an actual lawyer, on the specific issue of bystander selfies, and discounting her opinion, which she supported with evidence, based on other opinions that she may have had nothing to do with seems a bit odd. --Abd (talk) 01:35, 29 March 2015 (UTC)

ACK, I'm a bit odd wrt the WMF. –Be..anyone (talk) 01:53, 1 April 2015 (UTC)

Okay. Relevant? That opinion was signed by a lawyer, as her legal conclusion. It was supported by evidence. It is not an official WMF opinion. What I can conclude is that the WMF did not reject the opinion (or, at least, some contrary opinion would have been put up). However, some here have, based on their own opinions. I have been looking for legal opinion on this specific issue, for some time, now. It is elusive. The closest case was the Ellen "selfie," where there was legal opinion that the fellow who held the camera and pushed the button was the owner. He was. And so was Ellen, that point seems to have been lost, not adequately considered. Ellen released the image to the media, and that would have been sustained as lawful if it went to court, I'm sure, from precedent. (This one was complicated because the bystander was also in the photo.) But bystander selfies never go to court, so there is no specific case law proving the matter. We really should notice that. There are millions of bystander selfies taken every year. No court cases showing a claim by the bystander. Ever, as far as I've been able to find. --Abd (talk) 14:25, 1 April 2015 (UTC)

"If there is substantial creative activity on your part, you may be a sole author..." Hmm; if somebody need to be "sole author", there should be "no creative input" from anybody else. It is better to give no advice than giving a vague advice. Hope Clindberg, Jmabel, Stefan4, Prosfilaes, Colin, LX, Lupo, RP88 or Asclepias can give some inputs. Jee 10:49, 27 March 2015 (UTC)

This was in the draft, that wording was clumsy. The full paragraph was:

If there is substantial creative activity on your part, you may be a sole author or a co-author for copyright purposes, even if someone else held the camera. For a common case, see Bystander selfie. As a co-author, under U.S. law, you have the right to release the file without the permission of other co-authors.

To be an "author" there must be some level of creative activity. If someone else holds the camera, it is possible that a court could determine that the level of creative activity involved was de minimus, and confers no copyright. So the subject, in this case, could be considered to be the "sole author." Again, if the subject engages in "substantial creative activity." If there is no creative activity involved at all, there is nothing copyrightable. However, the major point of the paragraph is that even if someone else holds the camera, or engages the shutter -- or even if the other person uses more skill and creativity than that -- the subject may still be a co-author, and this has been shown in case law. The advice on this page is only about a claim of "own work," as relates to Commons licensing. I hope that we don't think that Commons pages are about giving legal advice. --Abd (talk) 01:35, 29 March 2015 (UTC)

• The page currently doesn't describe the situation in Swedish law very well. The situation differs from country to country, I suppose.

Under Swedish law, all rights holders have to give permission in the event that there are multiple rights holders. United States law seems to be different in this aspect. Under Swedish law, a photographic image may have up to three different right holders from which you must obtain permission:

• The 'author': the person who creates the content which meets the threshold of originality. If no such content exists, then there exists no author. The discussion above gives an impression that an author might exist also in other cases. Maybe that's the case in foreign law, but it is not the case in Swedish law. A photographic image may have one or more authors, but most photographic images are assumed to be below the threshold of originality, meaning that they do not have any author. In the event that a photograph is created by a 'random bystander', both the random bystander and the subject may be authors, but in most cases, there should be no author at all. Also, the term 'work' (as in 'own work') should only be used in the event that an author exists, and only with respect to the rights owned by the 'author', not with respect to the rights owned by the other rights holders.
• The 'photographer' (1961 law): the person who creates the photographic image by pressing a button on the camera. The photographer holds his rights to the image regardless of whether the image meets the threshold of originality or not. The only requirement is that it is a 'photograph' and an 'image'. In the event of a typical 'random bystander' photograph, the photographer would be the random bystander.
• The 'producer' (1994 law): always seems to be the same person as the 'photographer' under the 1961 law.
• The 'requester': the person who requested the creation of the photograph. For example, if I ask a 'random bystander' to create a photograph of me, then I am the requester. If a 'random bystander X' asks another 'random bystander Y' to create a photograph of me, then the 'random bystander X' is the requester.

Rights holder, photographic image created on 1 July 1994 or later

The producer always holds rights to the photograph. If an author exists, both the author and the producer hold rights to the photograph (but for different numbers of years), so you need permission from both of them. In the event that a requester exists and the image is a 'portrait photograph', then any permission given by the author or the producer is invalid unless the requester gives his consent. The requester doesn't need to give any permission whatsoever if the photograph isn't a 'portrait photograph' but instead some other kind of photograph such as a landscape photograph. I don't know whether a photograph showing multiple people (for example, a father, a mother and their children) counts as a 'portrait photograph' or not.

For a typical photograph taken by a 'random bystander' during this period, permission is thus needed from both the random bystander and from the subject of the photograph.

Keep in mind that film frames are photographic images if the film was created using photographic methods. If a film consists of multiple frames, then you might find that some of the frames are 'portrait photographs' whereas other frames are not, which complicates things. Also, keep in mind that photographic images taken using for example CCTV cameras have a 'producer', although it may be difficult to identify who the producer is.

Rights holder, photographic image created between 1961 and 1 July 1994

If there exists a requester, then the requester is the rights holder (even if the image isn't a portrait photograph). In other cases, the photographer is the rights holder. The author holds no rights to the photograph unless the author is the same person as the photographer or the requester.

For a typical photograph taken by a 'random bystander' during this period, permission is thus only needed from the subject of the photograph.

Some people also seem to think that it is sufficient to prove that no one can prove who the rights holder is. This is insufficient with respect to Swedish law. If you can somehow prove that someone has violated the copyright to some material, then the person may be sentenced to prison for up to two years, even if there is no way to identify the rights holder to the material. --Stefan4 (talk) 20:50, 27 March 2015 (UTC)

Thanks, Stefan. I have been clear, I hope, that the issue of co-authorship and rights was based on U.S. law, and it's impossible for me to perform a worldwide search on this. Commons servers are located in the U.S. and if U.S. law is the applicable law, it may be followed. If the photo originates outside the U.S., there may be other considerations. So a full consideration of this issue might include nation-by-nation coverage.

If someone has a prima facie claim to co-authorship, I'd suspect that proving a case of criminal copyright violation against that person would be difficult. In the U.S., the matter is clear: if a person is a co-author, they may release the material. They may have obligations to other co-authors, but that does not affect their right to release. A third party is not affected.

By the WMF opinion, though, a bystander selfie -- which is a narrowly defined situation -- is solely owned by the subject. There is no other owner, legally. The "co-author" argument is a backup, which might apply in marginal situations, and which might apply to Commons because of our server location. That is, by U.S. law, if the subject is an author at all, the subject may be able to release the rights. This is one reason why a professional photographer will obtain releases! With a bystander selfie, many of the possible complications are eliminated. --Abd (talk) 01:54, 29 March 2015 (UTC)

Uploading a photograph taken by another person.

Greetings - There's a Wikimedia Commons photo I saw that was taken by a person other than the uploader. There's a statement attached: "Published in author's blog under a CC-by license. Permission to upload to wikipedia was asserted via personal communication."

Is this sufficient? On the Commons:OTRS page, it says ---

"Licensing images: when do I contact OTRS?"

"I have received permission from the original author (not me) to upload the file to Commons."

"Please ask the copyright holder to send a permission statement to the address listed above. We require that owners make a clear statement that they release the image under a free license. To help prevent confusion or misunderstandings we prefer one of the email templates be used. Permission grants must specifically contain a free license grant and may not merely give permissions for Commons or Wikipedia. If you have already uploaded the image to Commons, follow the instructions on Template:OTRS pending."

I do not understand the nuances. Thank you for your help. wordreader (talk) 18:25, 12 January 2018 (UTC)