Commons:Village pump/Proposals/Archive/2017/01

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uploading images through Wikipedia app

Hello everyone, there is a discussion of an idea of uploading image to commons via Android app. Please check the idea and discussion here, and add your thoughts. This is just a discussion, guided by visual mockups, nothing in particular is in planning. Thanks!--Melamrawy (WMF) (talk) 20:08, 22 January 2017 (UTC)

Mockup totally skips over any copyright and licensing issues and goes straight from "Confirm image will be added" to "success". What a surprise. How many times do we have to go through this? —LX (talk, contribs) 20:39, 22 January 2017 (UTC)
@LX: In all fairness, page 10 does show a dropdown for 'select a license', though with no explanation. - Reventtalk 11:41, 23 January 2017 (UTC)
Totally inadequate. Proponents need to explain what they've learned from Commons:Village pump/Archive/2013/04#Mobile Web Uploads turned off in stable, Commons:Village pump/Archive/2013/04#Missing author/source parameters on mobile uploads: fix coming, Commons:Village pump/Proposals/Archive/2016/08#Rfc: Should we request a configuration change to shut down cross-wiki uploads?, Commons:Mobile access/Mobile upload needing check#Background and Category:MobileUpload-related deletion requests and how they plan to avoid making the same mistakes all over again. —LX (talk, contribs) 12:22, 23 January 2017 (UTC)
Sänger Thank you for cross-posting this here. We posted on commons exactly to make sure we got this kind of feedback- many of us here at the foundation have heard about the various rounds of selfie-pocalypse, but don't have all of the details. Thanks to @LX: for the list and I totally agree with your stated requirement. The reason we are talking so early in the development process---the idea stage, is to make sure we are aware of all of the details and specific concerns before we take any further steps. This will something we are committed to doing, just something we wanted to explore. Along those lines, the current wireframes are not intended to be prototypes, but simply ways of illustrating the ideas because we had heard that the textual descriptions were inadequate. I also want to recognize your reasonable frustration that we're talking about this again. I think the reason this comes up time and time again, because it represents a meaningful opportunity--if we can address the issues raised. I haven't read through them yet, so will refrain from further comment until I do. Rest assured, these are not being built and will not be built until we acknowledge and address the core issues raised. Jkatz (WMF) (talk) 17:53, 23 January 2017 (UTC)
@Jkatz (WMF): Before developing such (not urgently needed) stuff, please work on community requests first. Thanks :-). --Steinsplitter (talk) 18:02, 23 January 2017 (UTC)
@Steinsplitter: I understand your frustration. To explain where I am coming from, and my own limitations, the WMF teams have different responsibilities and areas of focus. Some teams work directly with community to address their specific requests. As I saw you linked to it in the phabricator task, you know the community tech team has a community wish list and addressing specific community requests is their focus. Other teams work on community requests (and the wishlist) to the extent that they overlap with their jurisdiction. The multimedia team currently sits under the editing team and has resources assigned to it - they seem to be focusing on other work, such as image annotation. Image rotation would probably fall in that category. I work on the reading team and I am trying to help community (and readers) through that lens. You might feel that my team should be absorbed by the community tech team or that we shouldn't do this for other reasons and I would be interested in hearing about it. I will say that the Android team which might work on this particular area is a small fraction of the reading team- 3 engineers and a designer and they are also responsible for maintaining the app. Jkatz (WMF) (talk) 18:40, 23 January 2017 (UTC)
I should clarify, the most important part of the discussion linked to is to ask active contributors to commons: "what could readers potentially do for you?" on the app. We proposed a few contribution methods for readers, but I have also heard the following ideas, readers could rate image quality so that we could incorporate that into search, browsing in the future, readers could tag pictures with wikidata items that exist in the picture or properties of the picture ("painting","bulldog", "black and white") - again to be incorporated into discovery mechanisms, readers could annotate images, etc. Are any of these interesting? Are there existing backlogs or grunt work that readers could potentially help with? Jkatz (WMF) (talk) 18:40, 23 January 2017 (UTC)
I think the problem here to a large degree is that due to lack of investment in Commons, many of those things aren't even tooled for the editing community, let alone that they would be doable in an app for a wider audience. As the community hasn't been given the tools themselves, adding any to an app seems rather premature at this point in time. Aka, there are probably tons of things that those users can do for Commons, but none that are actually already possible for anyone, but through rough manual labor. —TheDJ (talk • contribs) 16:12, 26 January 2017 (UTC)
Thanks TheDJ That's helpful to understand. Thanks. Jkatz (WMF) (talk) 22:25, 2 February 2017 (UTC)

Can we assume?

If a professional photo of a model in a private place is released on the net and there's no documented consent available, can we assume that the subject (the model) is consent with his/her photo on the net and hence upload the photo here? Do we need to add this to the guideline? --Mhhossein talk 08:35, 10 January 2017 (UTC)

This is now at least the fourth (or fifth?) place you brought this up. Every single time you were refuted. If you really have a suggestion on how to improve the wording of Commons:Photographs of identifiable people, bring it up there, but stop spamming the project. Sebari – aka Srittau (talk) 13:26, 10 January 2017 (UTC)
I can't figure out the reasoning behind this comment. I have brought here, to "improve the wording of Commons:Photographs of identifiable people" by adding statement showing assumption is allowed on some occasions, if the consensus is on that. "spamming the project"? What a bizarre comment. This board is exactly devised "for proposals relating to the ... and policies of Wikimedia Commons," what I'm exactly trying to do. Simply keep out, if you don't wish to participate. --Mhhossein talk 19:47, 10 January 2017 (UTC)
I can only second Sebari here. Your refusal to accept what you were told is in issue. Regards, Yann (talk) 22:54, 10 January 2017 (UTC)
It's because that situation ceases to qualify as a "private place" -- so your statement is nonsensical. Wherever a professional photo is being taken, cannot be a private place. Therefore, there is generally no such thing as a "professional photo of a model in a private place". At that point, whether the photograph is allowed to be published is more of a contractual issue between the model and the photographer -- not a privacy issue. That contractual issue is not part of the policy. Carl Lindberg (talk) 01:07, 11 January 2017 (UTC)
Thanks for the civil response Carl Lindberg. However, apparently the guideline does not support your claim, i.e. "Wherever a professional photo is being taken, cannot be a private place." How about adding it to the guideline to remove further doubts? By the way, could you please explain how your claim is not in contradiction with "A model, for example, may have consented to the image being taken for a personal portfolio, but not for publication on the Internet?" ِDoes it need to be modified? Thanks. --Mhhossein talk 08:47, 11 January 2017 (UTC)
The guideline does say that. A private place is somewhere the subject has a reasonable expectation of privacy while a public place is somewhere where the subject has no such expectation – the terms are unrelated to whether the land is privately or publicly owned. A model standing in front of a camera with lighting etc. does not have an expectation that they will not be photographed, no matter where that is. Thus, it is not a private place. The examples there also state how a place which may normally be private (a hospital ward) can become public in a different situation (public tour without patients). It then says, In the United States (where the Commons servers are located), consent is not as a rule required to photograph people in public places.[2] Hence, unless there are specific local laws to the contrary, overriding legal concerns (e.g., defamation) or moral concerns (e.g., picture unfairly obtained), the Commons community does not normally require that an identifiable subject of a photograph taken in a public place has consented to the image being taken or uploaded. Thus, in many jurisdictions, that (simply being a public place) is the end of the privacy issue. The quote you mention is only in places where local law differs in that respect (i.e. further consent is needed), and even then is usually more an issue for the photographer than the uploader (unless the upload is the first publication). Certainly, we would consider all aspects if the model requested the photo be removed. But you would need to point to an actual local law which covers the photo's situation for it to be deleted based on requests from others -- and that would be exceedingly unlikely for a professional photo (the model and photographer would normally have already have a contract, or at least understanding, before the shoot). Since contractual issues are beyond the scope of this guideline, it would usually take one of the principals (photographer or model) requesting a deletion for us to delete on those grounds. Carl Lindberg (talk) 14:49, 11 January 2017 (UTC)
But which part of the guideline says that quotation "is only in places where local law differs in that respect"? The current form appears to be a general statement applicable in all the states. --Mhhossein talk 18:48, 11 January 2017 (UTC)
The part that I quoted. If it's a public place, in the U.S. the entire "consent" section is moot. It's there if you read carefully. Carl Lindberg (talk) 21:25, 11 January 2017 (UTC)
Regarding public places, yes you're right. But you are assuming that when it comes to professional shots, automatically the model has no expectation for privacy and the place of photography, be it a studio or a personal bathroom, is considered a public place. You assumption is faulty in my opinion, because you are taking the model's satisfactory with being photographed equal to his/her zero expectation of privacy. Yes the model is certainly consent with being photographed and you mentioned this by saying "...[the model] does not have an expectation that they will not be photographed, no matter where that is," but that does not necessarily mean that the model is consent with the photos on the net. The point is to determine if the model is consent with his/her photo on the net or any other places. Simply, "consent to have one's photograph taken does not permit the photographer to do what they like with the image." That's why the guideline correctly says "A model, for example, may have consented to the image being taken for a personal portfolio, but not for publication on the Internet." This means that the model clearly expected the professional photographer make photos out of him/her but that does not allow the photographer to publish it where ever he wants. You're saying that when we have models and professional shots, private place is meaningless. If so, the part of the guideline, i.e "A model, for example, may have consented to the image being taken for a personal portfolio, but not for publication on the Internet," is completely meaningless because it's talking about models. --Mhhossein talk 11:07, 13 January 2017 (UTC)
Well, I may not be able to convince you of that at this point. But no. There is no expectation of privacy at a professional shoot. If it is announced that a public tour will be coming through a bathroom, that bathroom ceases to be a private place. Likewise, when a professional photographer sets up, that ceases to be a private place. The model's particular desires do not enter into it whatsoever, other than the contract with the photographer, at least in the U.S. The model cannot use privacy law to limit the distribution of the photograph. Commercial use would be regulated by publicity rights, but that would be it. That entire "consent" section you are quoting is possible examples of laws which may exist elsewhere, but not the U.S. The U.S. standard is strictly based on whether a "reasonable person" would have an expectation of privacy (basically, would expect they would not be photographed) -- not what one specific person wanted out of the situation. There is simply no way that a reasonable person would not expect to be photographed -- and yes, that is the "private place" standard in the U.S. Carl Lindberg (talk) 17:17, 13 January 2017 (UTC)
Apparently you are arguing based on your won info or may be based on some documented law regrading privacy right in US, while I'm just speaking based on clear sentences existing in our guideline. Well, if there are documents showing that "private place standard in the U.S." is whether some one "expect[s] to be photographed" or not, presenting them would be beneficial. One more thing, if those parts of "consent" section I quoted, i.e. "consent to have one's photograph taken does not permit the photographer to..." and "model, for example, may have consented to the image being taken for a personal portfolio...", are "possible examples of laws which may exist elsewhere, but not the U.S." then the guideline should be modified in these parts, too. --Mhhossein talk 21:56, 13 January 2017 (UTC)
I have read a fair amount of other material for the type of legal issues which affect photos on Commons over the years, yes, so some of that probably colors my understanding. However, the policy does say: In the United States (where the Commons servers are located), consent is not as a rule required to photograph people in public places. Thus, once it is deemed a public place, consent is a non-issue in the U.S., so the entire "Consent" section is not relevant. And the policy does make clear what a "public place" is -- it is entirely based on if a reasonable person has an expectation of privacy in that situation. If a friend took a photo of you at a party, and later published it against your consent -- you are typically out of luck, legally. I think much of the material in the "consent" section used to be titled "moral issues" to separate it from actual privacy law, since in the U.S. it is unrelated. Still, many of the concerns there (while not illegal) can affect people in unwanted ways, and so they are valid issues for involved people (photographer or pictured person) to bring up if they want a photo deleted -- we should take those concerns seriously, as the point of the site is to be educational, not cause harm to people's lives. They are also something for photographers to consider before uploading. But for deletion out of hand, they generally do not apply: the Commons community does not normally require that an identifiable subject of a photograph taken in a public place has consented to the image being taken or uploaded. That is the operative guideline. Laws typically differ quite a bit between countries, so those elements in some jurisdictions may be part of laws or court rulings. But to delete anything in that situation from Commons, you would need to point out an actual law which applies and prevents publication -- the simple listing of the possibility in the "consent" section is not a policy to delete. Carl Lindberg (talk) 04:51, 14 January 2017 (UTC)
Carl Lindberg: Could you please read my comment carefully once again? pay attention to the part of my comment which says "But you are assuming that when it comes to professional shots, automatically the model has no expectation for privacy and the place of photography, be it a studio or a personal bathroom, is considered a public place." This is considered a self-made comment unless you can show us that this claim is supported by legal documents regarding document. You are placing your whole argument on the slippery assumption that "Professional shot = Public place". Please, show us that this claim has legal basis in the real world. Thanks. --Mhhossein talk 15:49, 15 January 2017 (UTC)
On the basis of the existing guideline I agree with Carl Lindberg. I've long thought that the guideline needs substantial review, though, and and I'd be receptive to suggestions for future improvement. --MichaelMaggs (talk) 18:07, 12 January 2017 (UTC)
MichaelMaggs: Carl Lindberg is saying that when we have models and professional shots, the concept of private place is meaningless only because the model already expects to be photographed. If so, the part of the guideline, i.e "A model, for example, may have consented to the image being taken for a personal portfolio, but not for publication on the Internet," is completely meaningless because it's talking about models. Read my full comment please. --Mhhossein talk 11:08, 13 January 2017 (UTC)
The wording of the guideline can definitely be improved, but that will not be an easy or quick process as we know from experience that different editors have very strongly-held but mutually incompatible ideas of what the guidelines ought to say. Some would require virtually no subject consents, whereas other would require them all the time. Local laws and practice vary hugely between countries. I still do have in mind attempting a comprehensive re-write of these guidelines, with an associated RFC, but not just at the moment as the time committment will be large. For now, we have to work with the wording we have. --MichaelMaggs (talk) 13:49, 13 January 2017 (UTC)

Professional shot = Public place?

  • @Krd, Jameslwoodward, Nick, Peteforsyth, and Christian Ferrer: & @Jcb, Jmabel, and Wikicology: We discussed an issue with COM:PEOPLE. As far as I understood, Carl Lindberg believes that "a model standing in front of a camera with lighting etc. does not have an expectation that they will not be photographed, no matter where that is. Thus, it is not a private place." This means that when it comes to professional shots, the place, be it a studio or a personal bathroom, is considered public. Is it true based on US laws? If this is true, i.e. professional shots means that the place is public, is it not in contradiction with the part of the guideline saying "a model, for example, may have consented to the image being taken for a personal portfolio, but not for publication on the Internet?" --Mhhossein talk 07:53, 18 January 2017 (UTC)
The relevant issue under US law, when photographing a person, is if the person has a 'reasonable expectation of privacy' at the time.... a person who is posing for the photograph can clearly have no reasonable expectation that they will not be photographed. The discussion of 'private' and 'public' places is related to when a reasonable expectation of privacy can be assumed to exist, and it becomes a moot point when the person consents to be photographed.
The second point is if the person has given consent for the image to be published... this becomes a matter of 'personality rights'. We generally accept the assertion of the photographer or uploader that the subject has given consent for publication, unless it either seems clear that such consent was unlikely (revenge porn) or a person who would have personal knowledge of the situation claims otherwise. In the case of the particular images that started this discussion, the photographer had previously published photos of the same model, and many others (including nudes) on Flickr well before the particular photos appear to have been taken. That consent was given for publication seems obvious. - Reventtalk 09:41, 18 January 2017 (UTC)
There is also a difference between a lay person "accepting to be photographed" and a professional model posing or a public figure being photographed in a public place. There may be an expectation of privacy in the first case, but there cannot be any in the second. Regards, Yann (talk) 11:33, 18 January 2017 (UTC)
  • Revent: Yes, we know that "the photographer had previously published photos of the same model, and many others (including nudes) on Flickr well before the particular photos appear to have been taken," but how can it be showing they were consensual? Before answering, could you please consider these four questions by Peteforsyth? Thanks. --Mhhossein talk 12:50, 18 January 2017 (UTC)
@Mhhossein: I do not disagree that the guideline is vague. I seriously think that the works of this photographer are the wrong case to be trying to use to make the point. The (many) women shown clearly consented to being photographed, and to claim they were unaware that they would be published seems to stretch the bounds of credibility. - Reventtalk 13:15, 18 January 2017 (UTC)
@Revent: Although the problem is not related to copyright, you argument is similar to those who say "the file is obviously common property. It can be found all over the internet and nobody has complained." Being aware that the photos are published is not equal to being consent about them. --Mhhossein talk 18:18, 19 January 2017 (UTC)

I see two problems with this line of reasoning. First, I understand that in the case described above, it is a reasonable assumption that the subject is a model (although whether paid or not is unknown), but in the general case how do we know that the person shown actually fits Carl's description? Professional models don't have signs on their chests telling us their occupation. Second, I'm not sure that we can make any assumptions about expectations of privacy. Privacy is not invaded if a person agrees with the photographer that the photographs are only for the use of the subject. A professional model having portfolio photos made has a perfect right to assume that those that he or she does not like will never be seen by anyone but the model and the photographer. Revent correctly draws the line at revenge porn, but I would draw it much more broadly. While there are obvious cases (fashion model on a runway, model with product), Carl's assumption must be applied with care..     Jim . . . . (Jameslwoodward) (talk to me) 11:52, 18 January 2017 (UTC)

Extraordinary cases call for extraordinary evidence, but ordinary cases do not. For a photo like the one we've been discussing, the most likely scenario is a photo with consent, and we'd need at least a modicum of evidence to the contrary. Professional photographers do not routinely release photos without sufficient consent. As I've said before, if we raised the standard here to requiring explicit consent from the subject, we would have to do so for every single portrait photo on Commons. - Jmabel ! talk 16:11, 18 January 2017 (UTC)

What is this "photo we've been discussing"? I've skimmed through the discussion above, and don't see a reference to a specific photo. Jmabel? -Pete Forsyth (talk) 18:59, 18 January 2017 (UTC)

  • @Peteforsyth: Sorry, this has sprawled over a bunch of forums. Commons:Village_pump/Archive/2016/12#What_do_we_need_this_guideline_for.3F might be the best place to look for context. - Jmabel ! talk 01:04, 19 January 2017 (UTC)
  •  Comment - Consenting to be photographed is not the same as consenting to the publication of the image (s). A model may sue for personality right's violation if her image is published without her permission regardless of weather she was consented to the taken of the image (s) or not, especially if it's used in an unflattering manner and/or for commercial gain. Imagine how a model would feel, if her image (s) published here under a free-license end up being used for the cover of a porno? The model won't sue in this case? The fact that the photographer has previously published similar photos of the same model on Flicks is not enough reason to believe the model consented to the publication of all her images on Wikimedia Common or any other platform but if all the images were previously published on Flicks, that's fine. Looking at the photo that led to this discussion, it appears to have been shot in a private place which means the photographer would be liable for any misuse of the photo (s) and if the photographer release it here under a free license as "Own work", they risk been sued for any misuse of the photo. In general, I think OTRS should be required in cases like this. Wikicology (talk) 06:27, 19 January 2017 (UTC)
    • Clearly, for the commercial uses you describe, personality rights would pertain, as they would for any photo. I can clearly take a photo of someone walking down a U.S. street, but I can't put it on the cover of a porno! So that is neither here nor there.
    • Also, unless I am extremely mistaken the subject of the photo is not a woman, it is a male drag performer, in character. Please correct me if I am wrong. - Jmabel ! talk 15:17, 20 January 2017 (UTC)
@Jmabel: The drag performer "Violet Sparks" is not the person depicted in the images that this was about. The model in those images was quite undoubtedly female. - Reventtalk 15:27, 20 January 2017 (UTC)
Ah, I stand corrected. - Jmabel ! talk 15:36, 20 January 2017 (UTC)
I'm uncomfortable with that quote out of context. I said:
"...Privacy is not invaded if a person agrees with the photographer that the photographs are only for the use of the subject. A professional model having portfolio photos made has a perfect right to assume that those that he or she does not like will never be seen by anyone but the model and the photographer...." .     Jim . . . . (Jameslwoodward) (talk to me) 13:12, 30 January 2017 (UTC)
(Jameslwoodward): That shows my point even better. This means that by having photos of "a professional model", we can't simply assume that she/he's consent with them on the net. --Mhhossein talk 06:34, 31 January 2017 (UTC)
Exactly. .     Jim . . . . (Jameslwoodward) (talk to me) 11:41, 31 January 2017 (UTC)
Jameslwoodward: Unfortunately, some users and few admins think otherwise. They believe that we can have such an assumption. They fail to prove themselves using legal documents in real world. That's why I tried to make the final point and clear the ambiguity. However MichaelMaggs was willing to improve the wording of the guideline, too. --Mhhossein talk 13:05, 31 January 2017 (UTC)

Bystander selfie

Hi, I propose that this proposed guideline becomes an official policy of Commons. Regards, Yann (talk) 17:57, 29 January 2017 (UTC)

I am dubious, without actual legal precedent to support the position stated. Copyright depends upon a creative original contribution to the work at hand, and someone who says 'take a photo of us' is not composing the actual photograph. That the conveyance of the 'sole copy' of the copyrightable work effects an assignment of copyright has not been true, at least under US law, for decades. - Reventtalk 05:38, 30 January 2017 (UTC)
I would say they are at least a co-author, if not the only author. If you ask a bystander for a photo, you usually tell them what you want in the shot (the composition), the angle, etc. The other person may do some framing, but mostly just presses the button on the camera -- that in an of itself does not make someone an author. Many of the creative decisions were made by the pictured person, and as such, they share the authorship. And any co-author can license a work non-exclusively. Frankly though, this is a situation where the other potential author really just walks away from most any ability to control copyright anyways. This is a highly theoretical situation, which is normally not litigated, unless the person who pressed the shutter as a favor actually sues. As such, we are not likely to ever have a precedent -- and frankly, there is no real reason to disallow such uploads in my mind, unless we have an actual precedent which says it is not OK. The likelihood is that both people are co-authors, meaning they each have as much right to make licenses as the other. There were some copyright types who had some fun debating the authorship of the Ellen Degeneres Oscar selfie, see here. One of the comments notes this case, where a book author was granted co-author status on photographs because they collaborated on the content (even though he did not press the shutter). That would likely be the case in a situation like the passerby photo, to my mind. At any rate, we can note the lack of precedent for such things, but I think it would be silly to bar such uploads, since we also don't have any court case to point to, to show it's an actual problem. It's mainly theoretical copyright gymnastics which have virtually no chance of ever being a real issue. I would just assume enough authorship to allow licenses. So,  Support. — Preceding unsigned comment added by Clindberg (talk • contribs) 06:04, 30 January 2017‎ (UTC)
It's nice to try to clarify this situation. I would tend to consider such a photo as a "work for hire": if A asks B to shot a picture, and B does it as A said, it is implicit that the final product belongs to A (copyright and everything). --Ruthven (msg) 11:41, 6 February 2017 (UTC)
While that may make some logical sense, "work for hire" now has a pretty rigid definition in copyright law, and it would be going outside those bounds to call the situation a "work for hire" -- in general, someone needs to be an actual employee under the law of agency. For a contractor, there is a specific list of types of works where it can apply, and it requires a written agreement. See this circular. More realistically, it would be virtually impossible to bring an infringement lawsuit in the first place -- to do so, you need to prove you own the copyright, and there is virtually no way a bystander could do that. And even if they could, as I said above, going by the letter of copyright law it would probably result in (at best) a co-uthor suing a co-author, which is an entirely different type of lawsuit (not infringement). So to me, it's so far out of bounds of a normal copyright situation that we really have no idea what a judge would do, and we shouldn't guess or claim to know with any degree of confidence. We should simply assume the pictured person owns the copyright enough to license it (and there is a good case for that, even following the letter of the law). If someone wants to dispute that claim, we can deal with those situations on an individual basis. Carl Lindberg (talk) 13:24, 12 February 2017 (UTC)
@Clindberg: Consider the "work for hire" common law outside the US. The subject and the photographer come to a verbal contract wherein the photographer offers to take the photo with the subject's camera and the subject's arrangements in exchange for valuable consideration, short-term possession of the subject's camera or cameraphone; the subject then accepts the offer and hands over the camera or cameraphone with instructions, and the photographer takes the photo and hands it back. This should be a legal verbal contract in any court of equity in the world. That the US Copyright Office would bar a claim of infringement by the subject is immaterial; we should only be concerned here about potential claims of infringement by the photographer, of which there should be none. What if we would have the subject specifically ask the photographer for permission to license the photo CC-BY-SA and explain if the initial answer is "No"?   — Jeff G. ツ 18:13, 14 March 2017 (UTC)
My opinion is further bolstered by the decision in Effects Associates v. Cohen, 908 F.2d 555, 1990 Copr.L.Dec. P 26,605, 15 U.S.P.Q.2d 1559 that, even absent a written contract regarding copyrights, defendants Cohen et al had a nonexclusive right to use the work of Effects Associates for which it had not fully paid, but that Effects Associates still had the right to sue for fraud and breach of contract in state court.   — Jeff G. ツ 22:55, 20 March 2017 (UTC)
@Jeff G.: A license is not the same thing as a transfer of copyright ownership.... the law does not require that licenses be in writing, but does require that transfers of ownership are. I do not think that anyone would argue that the subject of a bystander selfie, who was given the sole copy of the image, does not have an implied license to themselves use the image. Possession of a license, however, specifically does not allow the licensee to themselves license a work to third parties. As stated by the court, "Section 204 provides that all transfers of copyright ownership must be in writing; section 101 defines transfers of ownership broadly, but expressly removes from the scope of section 204 a "nonexclusive license."" The subject of a bystander selfie, after receiving the sole copy as part of an informal transaction, does not then own the copyright interest held by the photographer.... they instead have an implied non-exclusive license to use the work. They can only themselves license the image if they were a co-author... as I have argued, they might be so in specific cases, but it is not reasonable (and open to abuse) to assume that the subject is a co-author of 'all' purported bystander selfies. - Reventtalk 04:16, 21 March 2017 (UTC)

 Oppose - such a guideline would have no legal base. We should not be willing to ignore copyright regulations for the sole reason that we don't expect the author to execute his rights. It's also pointless, for a depicted person can often easily let someone take a new picture and write down their release if desired. Jcb (talk) 13:32, 12 February 2017 (UTC)

As I said above, going by copyright regulations themselves, the pictured person would be a co-author at least. We are not ignoring copyright regulations. It's actually really presumptuous to delete -- we are claiming way more authority on the situation than we really have or know. Carl Lindberg (talk) 13:45, 12 February 2017 (UTC)
I hand over my camera to people from time to time to take a picture from me (e.g. this one taken by a colleague pilot), but I don't see how I would be the author of such a picture. Usually you don't tell such a bystander exactly where he should stand. The bystander himself will usually search for the best spot and use his creativity to create the best picture. I do not see how such a photographer would be not the author. In case of File:Coen_en_Sander_met_Jcb.JPG, taken by a bystander with my camera, we made a (hand)written agreement, which I sent to OTRS. Jcb (talk) 14:01, 12 February 2017 (UTC)
You usually tell them what you want in the shot -- the people to include, the background, and at least the general angle -- that is orchestrating the scene, if such arrangement qualifies for copyright. You can set the camera settings before you hand it over. Most of the time, that all should be enough to get the pictured person a co-ownership of the copyright -- they authored some of the expression in the photograph. The person who presses the shutter may be the author of other aspects such as the framing, but you'd have to prove that none of the expression is attributable to the pictured person giving instructions on what they want the photo to be -- and that specific aspect (directing the subjects) is often considered as an aspect of copyright. It is a mistake to assume the person pressing the shutter is the sole owner of copyright -- that is not what the law says. It would come down to the specific instructions given, which we have no idea about, and should simply trust the uploader, unless disputed by the other party. Carl Lindberg (talk) 14:54, 12 February 2017 (UTC)
If several authors are involved, then permission should come from those several authors, not only from the author of some small aspect. And about the camera settings, this is very hypothetical. Well, I turn it on at least before handing it over. Not sure whether that would constitute a creative act in your opinion... Jcb (talk) 15:10, 12 February 2017 (UTC)
Exposure settings, shutter speed, etc. could be creative. Automatic settings, not as much. But directing the scene, almost definitely. And a co-author is a co-author -- each person would have just as much rights as the other over the photograph. A co-author generally cannot infringe copyright. The law does explicitly say that any co-author can make a non-exclusive license without consulting other co-authors. While a free license may not have been contemplated by the lawmakers when enacting that, that is the letter -- and given all the other out-of-the-ordinary aspects of this situation, I would just assume good faith. Odds are they would be in the right legally anyways. Carl Lindberg (talk) 15:29, 12 February 2017 (UTC)
This sounds ridiculous to me. If e.g. somebody writes a 500 pages book and somebody else advices him on what font and paper format to use, then do you think that the other person is also entitled to release the book into a free license, even if the writer would disagree? Jcb (talk) 17:44, 12 February 2017 (UTC)
No, but the nature of expression in a book is completely different than a photograph. If someone comes up with the detailed plot, and someone else writes the words, then that could be a co-author situation. But I linked to a case above where someone who did not press the shutter was given co-author status in photographs (and that was even when the photographer owned the camera in question). It's not ridiculous at all. Carl Lindberg (talk) 18:10, 12 February 2017 (UTC)
Extreme situations could occur and be assessed one by one, but the proposed guideline is bases on "Essential to "bystander selfie" is that the person operating the camera does not retain the image or data, hence has no power to publish the work.", which of course is very much against the spirit of what we are doing here. Did you read the proposed guideline? Jcb (talk) 18:19, 12 February 2017 (UTC)
Indeed; who owns the camera and who retains the image data are irrelevant. I remember the early discussions with Abd about these. Jee 03:25, 13 February 2017 (UTC)
It's not an extreme situation at all -- it is quite likely the bystander is at most a co-author. If you want to change the rationale of the guideline to the co-author one, fine -- agreed that the basis being the ability to publish is not a good one, though it's entirely possible that would enter a judge's thought process. More accurately, the bystander selfie situation is already an extreme situation with regards to normal copyright law, meaning it's likely that some or many of the normal rules are void or altered in such situations -- and we should not claim that they do apply in full, without a precedent which shows they do. It's not a situation that is really contemplated by copyright law. Assuming good faith in these situations is plenty for me. We aggravate people enough with legitimate, precedent-based deletions -- deleting when we do not have any real idea what a court would do is bad practice.Carl Lindberg (talk) 14:47, 14 February 2017 (UTC)
"We aggravate people enough with legitimate, precedent-based deletions -- deleting when we do not have any real idea what a court would do is bad practice." Sadly it is what we're doing in Flickr PDM issue and in a recent case where a couple wish to jointly maintain copyright of their work. We're being hostile to any unconventional ideas. Jee 05:11, 15 February 2017 (UTC)
Yes, and I'm firmly of the opinion we should allow Flickr PDM works where it's obvious they are the author. I'm unaware about the case involving the couple, but joint copyright ownership issues often tend to confuse around here, sometimes leading to bad results. Carl Lindberg (talk) 13:09, 15 February 2017 (UTC)

Conditional  Support if wording improved. Nowadays the technology is developed a lot (smile shutters, timer, motion triggered timers which can be activated by a predefined pattern of actions, etc.); bystanders job may be simply hold the camera like a tripod. So I'm in favor to support giving the uploader the responsibility to evaluate the copyright part. Co-authorshop seems a very reasonable argument. Jee 14:09, 12 February 2017 (UTC)

Hi Jee, Could you please suggest how to improve the wording? Thanks, Yann (talk) 16:19, 8 March 2017 (UTC)
 Comment - this proposed guideline is about to be abused as a blank permission to accept any picture where the uploader is the depicted person, even if there is no statement at all from the uploader about how he/she would be a 'co-author'. Jcb (talk) 16:42, 8 March 2017 (UTC)
Yann, the current wording in that proposal seems to make an argument that the subject owns the copyright because s/he owns the camera/storage device. It is not a valid argument. What I supported is 1. creative contributions in the work to claim a joint ownership 2. for whom the work was prepared. See https://www.copyright.gov/title17/92chap2.html#201 (b) "Works Made for Hire.—In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright." Here I see some people argued that a work-for-hire needs a written agreement. But what is written in the law is exact opposite. Jee 17:36, 8 March 2017 (UTC)
Jee, I can agree that the wording needs to be improved. If some native English speaker could help, it would be great. As explained below, ownership of the camera is only one of the point made. Regards, Yann (talk) 19:00, 8 March 2017 (UTC)
I would like to share my past experience when I was in OTRS. I had asked all people for further clarification when the permission mail came from the subject. If the photographer was traceable I got a mail from them stating they have no problem on how the subject use that works. I never got a mail from a photographer who rejected the subject's claim. Many photographers, especially professional photographers, expressed their discomfort on keeping their subject in guilty. My understanding from my experience is that whenever a bystander is requested or even professional photographer is hired for a photograph where the "intention to take a photo is 100% the need of the subject himself", the bystander or the professional photographer is noway interested to claim a copyright on it. For the case of professional photographers, they already received a payment for it. What remains and we are demanding is just formalities. Jee 02:54, 9 March 2017 (UTC)
  • Oppose. Ownership of the camera has no bearing on copyright, period. I have fought a lot of such claims in the past (related to astronomical images) and can not support this guideline while remaining faithful to my past positions. Ruslik (talk) 18:37, 8 March 2017 (UTC)
    • Ruslik, ownership of the camera is only one of the point made. I agree that the text may need a better wording. The point is that if I ask someone to take my picture with my camera, that I choose the pose, the place, the time, and the camera settings (that's why ownership of the camera is part of the issue), I am certainly at least co-author of the picture. More than that, if the person who push the button, and does only that, I deny her any copyright of my picture. I have at least 3 of my pictures on Commons taken with the above conditions, and I deny anyone to contest my capacity to release them under a free license. Regards, Yann (talk) 18:55, 8 March 2017 (UTC)
I agree that the proposed text as it stands needs work, but the general concept - focusing on the extent of the bystander's artistic input or lack thereof - is promising. MichaelMaggs (talk) 19:19, 8 March 2017 (UTC)
You are repeating the arguments of one person who forgot his camera for monkeys to use. Ruslik (talk) 20:33, 10 March 2017 (UTC)
  •  Support As per Yann and Carl Lindberg. The co-author idea is right on I think. When I take a picture of a friend or they take one of me, we don't do a lot of directing or discussing. The subject pretty much always chooses their pose and the location, which is an important detail. The other thing I would consider is that when I'm with friends and we take some phone snaps of each other, we're lucky if, when we get home, we even remember who took each shot. We upload them and share them with no thought of copyright. These photos are taken by friends and most of the time there's not much creativity involved. If you look through these images, you'll notice that a lot of the pictures are very basic and unoriginal. I think demanding OTRS/releases would be pretty harsh and would create drama and difficulty for uploaders, and may even chase some people away. Also, I've seen messages lately on VP that OTRS is badly backlogged. Profile pics are very common, so requiring OTRS would probably add quite a bit more strain to the OTRS system - unnecessarily in my opinion. Daphne Lantier 03:55, 9 March 2017 (UTC)
  •  Oppose The Copyright Act of 1976 takes intent into account, stating a joint work is "a work prepared by two or more authors with the intention that their contributions be merged into inseparable or inter-dependent parts of a unitary whole". It would be very, very difficult to argue that a random passerby who doesn't know anything about copyright law "intended that their contributions be merged into inseparable or inter-dependent parts of a unitary whole", especially without even knowing what the contributions (if any) of the other person were. Also, note that many foreign countries (Germany, France) require consent from all authors before licensing a joint work, adding another layer of complexity. The arguments above focus largely on things that simply aren't recognized by copyright law ("not much creativity", "very basic"). Some editors are supporting saying "Well, the photo could be taken on a tripod with the bystander only pressing a button." If that happens, send it through OTRS and we'll approve it, as most of us know very well that that's a situation where the bystander is not the creator of the work. The vast majority of these cases involve the bystander choosing angle, timing (which affects lighting and pose), etc. Through working with OTRS, I know very well that almost everyone who emails us knows nothing about copyright. Turning it over to them to figure out if they're a co-author would be an absolute disaster. We haven't even had a comment on legal from this and we want to make it policy? Absolutely not. ~ Rob13Talk 02:18, 10 March 2017 (UTC)
    • Actually no, that is absolutely the situation here -- the two parties (the guest photographer and the person asking their photo be taken) collaborate to create a single, unified photograph. That meets the definition in copyright law squarely, and people collaborating over what the content of photos should be have indeed been ruled co-authors in actual cases, as mentioned earlier. Yes, licensing with joint works can be messy, but U.S. law allows non-exclusive licenses from any individual co-author. The policy though would just be that we simply allow licenses from one of the parties in this situation, without trying to dive into the details. If another party objects, we can deal with the problem then. If the photographed person claims full copyright, well, it would take another party to dispute that, and legally they may even be right. For this type of situation where really no court cases have gone before, we really shouldn't try to guess how principles of copyright apply, I don't think. But even if we do, there is a law-based argument to allow the policy. And the other likely possibility is that a judge would bend or change the norms of copyright to deal with this situation -- we just don't know exactly how. So, the policy should be to simply accept a license from the one party, and delete if the other possible author objects (or we get a court case which gives us a better precedent to follow). Carl Lindberg (talk) 02:03, 11 March 2017 (UTC)
  •  Oppose May be possible in the US, but not in Germany. The potential for misuse is also very high. --DaB. (talk) 02:40, 10 March 2017 (UTC)
  •  Comment Just a note, that this discussion affects at least 50,000 images on Commons when you include the profile images in Category:Media needing categories, Category:User page images, Category:Wikipedians, Category:Wikimedians, Category:Personal images, etc. 50,000 is a low estimate considering how many of these are to be found in the 1 million+ images in Category:Media needing categories. Deletion and/or OTRS for this large of a number of files would not be easy. Daphne Lantier 02:57, 11 March 2017 (UTC)
  • (Edit conflict)  Comment Some people commented that why not use OTRS in such cases. See how this discussion became active again. Most of these photos are from Wikimedians who are non-notable people who are not using a verifiable email address. If we ask their friends to send a permission mail to OTRS, we will get another unverifiable mail. It can be even from that subject claiming their friend, who knows. Another way we can offer is to suggest that subject to ask his friend to create a Wikimedia account and upload themselves. Again we get another unverifiable account. It can be even a sock claiming his friend. We can overcome the "legal issues" these ways; making our system less reliable. IMHO, the permission coming from the subject claiming copyright is more reliable than these two options. Jee 03:05, 11 March 2017 (UTC)
  • A good point. Another consideration is age and known Wikipedians/Wikimedians. If we tag newer personal images for permission, that's not likely to cause too many problems; but if we tag 5+ year old shots of well-known admins and other functionaries across different wikis, that's going to lead to drama. And how about personal images uploaded by Wikipedians who are now deceased? Are we really ready to delete those? Are we going to tag those for permission and risk having an email sent to their relatives via notices to remind them that their loved one is dead? That'll look real good for Commons. Some Wikipedians, like GorillaWarfare for instance, are OTRS members themselves and have categories containing numerous images like this taken at WMF events. It might be seen as a bias if they can quickly take care of the issue through OTRS while less savvy users just get confused and perhaps turned off when their personal pics get needlessly tagged for permission or deletion. This kind of thing adds another level of hard line to Commons. Daphne Lantier 06:05, 11 March 2017 (UTC)
@Jeff G.: The appearance of a person, in and of itself (clothing, grooming, pose, facial expression) is not copyrightable. I submit File:Aamir Khan at 92.7 BIG FM to promote Satyamev Jayate 03.jpg.. an image where the subjects posed for a photo taken by a professional, at a media event. The subjects chose their clothing, grooming, pose, and facial expression... yet they are clearly not coauthors of the image, and I doubt anyone would claim they are. - Reventtalk 04:22, 14 March 2017 (UTC)
@Revent: In that case, the photographer retained the camera and the image therein, so that situation would not qualify as a "Bystander selfie".   — Jeff G. ツ 17:45, 14 March 2017 (UTC)
@Jeff G.: I'm not saying it would. Transferring the 'sole copy', however, does not transfer copyright under US law.... the law explicitly says it does not. The point is that the subjects here exercised just as much control over the 'purportedly' copyrightable contributions of clothing, grooming, pose, and facial expression as they would if it 'was' a bystander selfie. If those were copyrightable contributions (and they are not) then the subjects here would also be co-authors... and they are not. They were even, rather obviously, 'asking' to be photographed....the only difference is ownership of the camera (which is irrelevant) and if the sole copy was handed over (and the law specifically says that does not matter).
There may be (and probably are) cases of bystander selfies where the subject makes a sufficient contribution to be a coauthor, but that is not going to be true in most cases, and I don't think it is reasonable to 'assume' that it is true about tens of thousands of images where it is not, and at the same time open the door to claims that images are bystander selfies when they are not.
The actual proposal (that they can be claimed as own work) is simply wrong, even if you do accept (and I do not) that the subject is always a coauthor, as the 'other' co-author (the photographer) has the right to be attributed as well, and allowing such images to be claimed as simply 'own work' denies them that attribution. - Reventtalk 21:32, 14 March 2017 (UTC)
  •  Oppose. Our bystander still chooses aspects such as timing, precise angle, etc.; this is significantly different from someone setting his camera on a tripod or wall and using a timer or remote-shutter-pressing device. As noted above, creating the scene doesn't give the subject authorship, just as creating the scene doesn't give the camera owner authorship when he "lends" the camera to a monkey in a certain situation. Addressing Daphne's comments just above mine — given the ease of auto-taking a self-portrait with today's technology, we can accept {{Own}} claims for recent portraits, and "taken by another Wikimedian at this meetup" can be one of those rare exceptions to requiring OTRS; if nothing else, the photographer clearly knows about the upload and can be trusted to challenge it if the claim is false, which is quite different from you uploading a portrait taken by a random bystander. We should require proof of permission only if the photo predates the digital-camera era (when few average people would risk using film on what became a poor-quality shot) or if the uploader specifically says that the image was taken by someone else. Nyttend (talk) 01:16, 13 March 2017 (UTC)
  •  Support per Carl Lindberg. - Jmabel ! talk 04:45, 14 March 2017 (UTC)
  •  Oppose First... the point has already been made that while a coauthor can, under US law, license an image, this is not true internationally. That point, in and of itself, makes the proposed policy unacceptable.... as written, if adopted, it will be certainly applied to cases where it is clearly incorrect.
In the US, however, works are required to have "at least a minimum amount of creative authorship that is original to the author." This has been historically interpreted by the USCO to mean that there must be at least one specific, identifiable, and copyrightable aspect of the work at hand that is attributable to the purported author. The arguments made here for the subject to be a coauthor rely on either claims that aspects of the person's appearance at a point in time are copyrightable (which they are not, or a person could claim to be a coauthor of 'any' portrait taken of them) or that a subject can claim to be a coauthor merely because they conveyed 'ideas' about the proposed image to the person who took the picture. This is wrong... mere ideas are not copyrightable authorship.
I present a thought experiment.... a person requests a bystander selfie. At the same moment that the requested photo is taken, a second photographer, standing behind and to the side of the first, takes a second image. That image could be cropped down to produce an image indistinguishable from the first. Is the subject a coauthor of that image as well? I think most people would say no. The aspects of supposed 'authorship' that the subject contributes are either inherently uncopyrightable (their appearance) or uncopyrightable by law (the 'idea' of taking such a photograph). Arguments are also made about the settings of the camera.... such aspects of photography (technical skill) are also specifically excluded from copyrightability.
The argument is also made that, by conveying the sole copy of the image to the subject, the photographer loses any ownership of the copyright. This is also not true.... it was, in the case of unpublished works, true under the 1909 copyright act (as such works were only covered by a common-law copyright) but the current Copyright Act changed that... and this was intentional. Per 17 U.S. Code § 202, "Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not of itself convey any rights in the copyrighted work". The 'digital copy' of a photograph, that a person created, is something that the person physically 'owns', even if the media on which it is stored belongs to someone else.
To elaborate, if I borrow your camera for the day, and take a few dozen photographs, you do not 'own' them, physically. If I copy them to my computer, and then delete them, I have not deprived you of property. They do not become your physical property until I return the camera to you, with them undeleted. The Copyright Act specifically states that such a conveyance of physical property does not convey ownership of the copyright.
What it comes down to, however, is that the copyright situation of bystander selfies comes down, clearly, to the specific circumstances that surround the particular work. The proposed policy depicts the situation of bystander selfies as something crystal clear... that is not the case, and it's IMO not possible to write a policy that will not be misapplied. - Reventtalk 05:15, 14 March 2017 (UTC)
I do agree that the legal situation is quite unclear. To me, deletion in that situation is a claim of clarity that we should not assume. We are applying certain principles of copyright, assuming they do apply, and deleting based on that -- but we really have no idea. They are deletions without any court precedent to back us up. I think that reflects poorly on us. I would prefer that we simply accept such licenses, somewhat like the U.S. Copyright Office will accept some claims under the rule of doubt -- we really have no clue. It may well be just fine for the pictured person to control such licenses -- it has not been proven one way or another in court, and in interests of simplicity I would rather just accept them. Much like photographs from heirs. If another involved party objects, fine, deal with it then. Otherwise, it just appears that we are trying to find reasons to delete stuff and make people jump through hoops, and have certain requirements made out of paranoia which can be downright impossible to fulfill. However, for those worried about straight legal arguments, yes those exist too, which is what I have argued. And yes, when a bystander takes a selfie, quite often the pictured people will arrange themselves, determine the basic content of the photos and the background, choose the basic angles, and often check the results in the viewfinder to see if it met their needs. Some or all of those aspects can very much be considered authorship, and go beyond mere ideas. I linked to a case, here (Brod v. General Publishing Group, Inc) where someone other than the photographer was indeed named a co-author based on similar elements to the above. It is not at all far-fetched for a ruling like this. Given the situation, I don't think we should apply copyright principles in areas no courts have bothered to do so -- if nobody has ever had a viable dispute elsewhere, I don't think we should create them here. Note the uncertainty, sure, but don't delete. Carl Lindberg (talk) 05:45, 14 March 2017 (UTC)
@Clindberg: The proposal, however, is to adopt as policy a statement where the operative phrase is "For Commons purposes, uploaders may claim "own work" for such bystander selfies if they are the subject who arranged the photography as described", where 'as described' includes a description of the conveyance of the 'sole copy'... in a manner that US law specifically says does not convey any copyright. Furthermore, it would be impossible for us to determine if the described circumstances applied... the proposed policy could be claimed to apply to any photograph where we have the permission of the subject, regardless of the actual facts.
This is not a 'zero sum' proposal... there is no requirement that we delete anything if this is not approved, and not approving it does not create any new policy about deletion. In the absence of this policy, such images should continue to go to DR, for the community to decide on a case-by-case basis. - Reventtalk 06:13, 14 March 2017 (UTC)
@Clindberg: Rereading what you said, I think it's worth making a separate, and somewhat 'meta', statement. I do not believe that it is the purpose of Commons to archive 'anything we can get away with'. I believe that the purpose of Commons is to archive everything that we 'know', to the degree that we can reliably assert so to potential reusers, is PD or freely licensed. Our goal, IMO, should be to be a reliable source for copyright information about the works we host, and that includes disclaiming any known caveats about works that might have a questionable status. The proposed policy excludes any such disclaimer... it's simply that such works can be claimed as 'own work'. No. Hell no. - Reventtalk 06:27, 14 March 2017 (UTC)
@Clindberg: Regarding the article about the Brod case that you linked, it seems quite distinct from the case of a bystander selfie... both parties had the explicit intent of creating a work of commercial value. The article also mentions Childress v. Taylor, and notes that the extant case is different because 'both made substantial contributions to the final work'. In the vast majority of potential bystander selfie cases, we would lack any real indication that the subject contributed any copyrightable authorship, so adopting 'the subject can claim own work' as a general rule seems misguided. The difficulty in most bystander selfie cases would be in pointing out any specific, identifiable, and copyrightable aspects of the work at hand that were the contribution of the subject... in most cases the contribution of the subject would merely be the 'idea' of such a photograph. - Reventtalk 10:42, 14 March 2017 (UTC)
Hi, The case mentioned by Carl, Joint Authorship for Photographs, clearly dismissed all objections presented so far. But what was the appeal decision? Regards, Yann (talk) 12:17, 14 March 2017 (UTC)
Ah, sorry, the 9th circuit affirmed the ruling on appeal. Carl Lindberg (talk) 15:24, 14 March 2017 (UTC)
That link is not working for me. However, the full cite appears to be "Brod v. General Publishing Group, Inc., 32 Fed.Appx. 231 (9th Cir. 2001)" per this subsequent case No. 06-12624 of SAM TANG v. HEKMAT HANNA PUTRUSS, et al. in the UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION, filed 2007-10-05 by Hon. Sean F. Cox, middle of p. 8, in which the photographer won because the other party "does not appear to have exercised a high degree of control in the actual taking of the photographs, like that of the defendant in Brod" (near the bottom of p. 9).   — Jeff G. ツ 19:16, 14 March 2017 (UTC)
@Yann: No, that case (clearly) does not dismiss the concerns, as it describes a situation that is distinctly different from that of a bystander selfie. From here: "The Court of Appeals held ... photographer manifested his intent that he and author would be co-authors of photographs"... in other words, the intent to create a joint work was explicitly stated. Also, from the 'factual background', "Before Brod triggered the shutter, Collins viewed a preliminary Polaroid test photograph of each image and made suggestions regarding any changes he thought appropriate", and "Collins incorporated, arranged, and enhanced some of the photographs for inclusion in the book."
This is clearly a level of contribution to the work far above saying "please take my picture'. Generalizing this to 'all subjects of bystander selfies are co-authors, and have the right to claim the images as own work without attributing the photographer' is simply wrong. - Reventtalk 21:42, 14 March 2017 (UTC)
@Revent: This case is very similar, and it was confirmed in appeal, so your objections do not stand. When a friend takes a picture following my instruction, he clearly intents to create a joint work. I don't see how you can dismiss that. And yes, I would usually check that the picture is OK, and ask my friend to take another one if it is not. That's similar to the Polaroid example. And I may also enhance the picture before publishing it. In the case of the bystander selfie, the subject has much higher degree of control that the person who push the button. So there isn't much difference with the case cited. Regards, Yann (talk) 09:52, 15 March 2017 (UTC)
@Revent: Sorry I let this slide for a few days. For bystanders, there is a wide range of possibilities. It is the poser who decided they wanted the photo taken, chose the basic composition, etc. Most often, they will check the result in the viewfinder to see if it was what they wanted. I've retaken them a couple times myself where they decided they wanted something a bit different. It's very, very possible they could be ruled a co-author. More to the point though... we really don't know anything about this situation. We have zero legal precedent, so to claim that the photographer would be ruled the author is incorrect -- certainly at least as much as saying the poser would definitely be ruled a co-author. That may be the letter of the law, but when you get to extreme situations, oftentimes those rules go out the window. If actually faced with a situation like this, do you really think a judge would rule that a person has no right to use the photo however they wish, instead being subject to the permission from someone they don't know and can never find? That would help neither party, and is not remotely the intent of copyright law. I'm pretty sure the judge would find a way around it -- they could rule it abandonment on the part of the photographer (i.e. it's fully public domain), they could rule the "written" requirement for transfer does not apply in this case and the poser now owns the copyright, they could create a new "work for hire" situation just for this case, they could rule co-owner status which is enough to license, etc., etc. Lots of possibilities. Similarly in Europe, do you really think the "no free licenses unless all co-authors agree" principle would really be upheld in such a case, where the other co-owner can never be found? Not likely. The written law gets followed to a point, as long as it is protecting rights the law intended to protect, but when extreme situations cause the written result to go off the rails, then modifications are made. This is how fair use, de minimis, etc. got created in the first place -- they certainly weren't written into the original laws; judges created the doctrines to deal with situations where the written law would end up with wrong or ridiculous results. For this type of situation, the poser has been using such photos (and presumably giving permission) for many decades without any actual dispute ending up in a court of a law, as far as we know. In other words, we are inventing a problem which doesn't really exist -- if such a case comes to court, and it gets ruled on, then we'll have precedent where we can give advice. Until then, we have absolutely no clue -- it's dangerous to think we do, solely based on that we have read the letter of the law. It could be public domain, it could be the poser owns full rights, or something in between -- we have absolutely no idea, and to indicate there is a possible problem is also incorrect. There could be an extreme, weird, one-in-a-billion theoretical oddball chance of a problem, but that's true of just about any work here. The most accurate policy would be we frankly don't know, and will simply accept a "self" license in the absence of a court precedent, since that seems to be general practice (for example, Ellen was the one asked for permission to use her selfie, even though someone else pressed the shutter, and that photographer was known). The fact these get deleted (and they do) is bizarre to me. Yes, we all like certainty, but the odds of a problem with a "self" license in this case is tiny, waaaaaaay smaller than the normal assume-good-faith "self" licenses that are uploaded every day and we seem to have no problem with. Carl Lindberg (talk) 06:51, 20 March 2017 (UTC)
@Clindberg: Even the case of the "Ellen selfie" is not that clearcut.... Time, for instance, attributes the image to Bradley Cooper [1]. If you listen to either of them talking about it, one thing that's quite clear is that the actual photo is nothing like what Ellen intended.... she was trying to, as a joke, take a 'selfie' with Meryl Streep, and intentionally crowd Meryl out of the frame. Cooper didn't realize that it was a joke, and jumped in to create something completely different.... Ellen herself describes it as 'his' photo.
I would not claim that there are not, undoubtably, cases of bystander selfies where the subject is indeed a coauthor, but I seriously doubt that the argument extends to the vast majority of cases... Yann talks about asking a friend to take several shots if needed so he can get what he wants, and in such a case he would indeed have contributed authorship, but that is not really a typical 'bystander selfie'. A more typical situation would be that a passerby is asked to take a photo, does so, and then goes on his way... few people are going to impose on a random stranger to engage in some involved process of taking and reviewing multiple images.
I have two major problems with this proposed guideline. The first is that, with this, we are creating a very broad 'special case' where we are going to accepting the word of a subject about the actions of unknown third parties.... this would rather obviously result in us accepting photos that are not bystander selfies, merely because the subject uploaded them as 'own work'. The other is that the exact text of this proposed policy makes assertions about the 'ownership of the sole copy' that are not only legally unjustified, but were explicitly removed from the 1977 copyright act.
The statement "In other cases, where the camera is provided by the bystander or another, with, say, image data being emailed to the subject, the bystander has control of the data and could claim copyright" essentially asserts that it purely by the transfer of the sole and only copy that bystander loses the right to 'claim copyright'. US law specifically and explicitly says that is not true, as I cited above. Also, there is no need to 'claim copyright'.... copyright exists from the moment of creation, and is not transferred by conveying the sole copy.
It's my opinion that some of the arguments advanced here violate the 'arguments we do not accept' part of the precautionary principle. - Reventtalk 20:39, 20 March 2017 (UTC)
  •  Oppose per Jcb. --Krd 05:37, 14 March 2017 (UTC)
    • @Krd: Jcb didn't make any legal argument, which is the point of this whole discussion. Regards, Yann (talk) 15:10, 20 March 2017 (UTC)
      • Quote: "such a guideline would have no legal base". I agree that in many countries the bystander will be the copyright holder in any case, unless _explicitly_ agreed on anything else. Your proposal may be good to go for some countries, but I don't see the possible benefit outweigh the complexity of the issue and the endless and fruitless discussions that will arise from it. --Krd 15:23, 20 March 2017 (UTC)
        • @Krd: Did you read the long and detailed arguments by Carl above. Regards, Yann (talk) 15:25, 20 March 2017 (UTC)
          • The part containing "we can deal with those situations on an individual basis"? Well, it may happen one day that we have more workers and supporters at Commons than actual work to do. At all other days we should IMO keep things simple and manageable. We have enough per-country-individual-review-required issues like Commons:Freedom of panorama and Commons:Photographs of identifiable people etc. I'd be comfortable with people cleaning existing backlogs instead of creating new ones. --Krd 15:35, 20 March 2017 (UTC)
            • This proposal has exactly that objective: simplify things by moving a guideline widely applied to a formal procedure. So I really don't understand your objection. Regards, Yann (talk) 15:41, 20 March 2017 (UTC)
              • No, most administrators still try to follow copyright laws rather than inventing their own ones. There may be a small group of administrators who 'widely apply' this bystander selfie nonsense, but it seems logical to me to stop that practice rather than trying to create some policy in an attempt to justify this mistaken behaviour. Jcb (talk) 16:27, 20 March 2017 (UTC)
                • Jcb, it seems you didn't even read Carl's long and detailed arguments. Considering the subject of a bystander selfie as co-author is a long practice quite everywhere on the Internet and on Commons. It is the people who say otherwise who are inventing laws which do not exist. Sorry to say, but here the nonsense comes from you. Regards, Yann (talk) 17:16, 20 March 2017 (UTC)
It is not written in the guideline, and if it is indeed for user page images then that should be precised. If it becomes a policy, an account can upload a photo of a well known people, claiming it's a bystander, and so what? we ask an OTRS confirmation of the account? and if OTRS confirm it's indeed the account of the known people, do we accept they license the photo? It is like accepting a license from a third party, and this is an issue because a photo of a star/well known people can easily be published on a cover of a magazine, and then the photographer seeing that can think "what?! I've not been paid for the photo I've taken". It's not exactly like a user page image or the photo I taken of my sister and her husband with her phone last week. Christian Ferrer (talk) 05:43, 20 March 2017 (UTC)
 Support per Carl Lindberg. This situation seems to be quite common and person composing the image and latter cleaning up / post processing the image is a coauthor who can release the copyrights. --Jarekt (talk) 03:40, 28 March 2017 (UTC)
@Jarekt: The concern, IMO, is not that such co-authorship might not exist in some cases. The concern is that the assumption that such co-authorship exists in 'all' cases is obviously going to be wrong in some, and it opens the door for completely spurious claims by an uploader that some image was a 'bystander selfie' when it was not. - Reventtalk 04:32, 3 April 2017 (UTC)
  •  Support with an example: Me and a friend at an event. I hate the selfies, and my good friend (who also hate the selfies) wants to take a photo of us. Then, she requested to someone strange to take a Bystander selfie for us with my friend's cellphone. The Bystander took the photo and returned the cellphone. The Bystander never told us who is and we never seen her again.
Conclusion: the only reason to questionate the copyright status of a personal bystander selfie is Copyright paranoia, and a good Policy is needed to avoid improper tagging and deletions.
Bystander selfies existed since the analog cameras epoch (do you remember when Mr. Bean wanted a selfie, but the bystander stolen the camera?), and I believe here are several personal bystander selfies that became part of the family album, therefore, nobody know who was the bystander and nobody will care about him/her. I'll never consider a bystander as "co-author" of a personal bystander selfie, and I believe nobody considered that since the early XX century. Nobody cares on copyright with personal shoots (including bystander selfies), just a beautiful memory. --Amitie 10g (talk) 05:06, 3 April 2017 (UTC)
  •  Comment The proposal looks like common sense to me, but I submit some thoughts about how rights management are currently handled in files. The Exif metadata specification relating to rights management clearly distinguishes between the camera owner, the photographer and the image creator. Although the specification does give examples of both the photographer and the image editor both having copyright within the same image, there is no suggestion that the camera owner can also claim copyright with the other two. But perhaps this doesn't exclude the possibility that all 3 can be in the Artist/Creator tag, and in the same file for only the camera owner being the copyright owner.
The latest Exif 2.3 specification (which can be found at www.cipa.jp/std/documents/e/DC-008-2012_E.pdf) says this about the Artist (mapped to Creator in XMP) tag: "This tag records the name of the camera owner, photographer or image creator. Ex. "Camera owner, John Smith; Photographer, Michael Brown, Image creator, Ken James"". The same specification says this about the Copyright tag: "In this specification the tag is used to indicate both the photographer and editor copyrights".
The "Guidelines For Handling Image Metadata" by the Metadata Working Group also specifically mention that Artist/Creator tags can include at the same time, but differentiate, between the Camera owner, Photographer, and Image Creator.
To confuse the issue Commons has already used an example (based on Exif-tool) which shows that the camera owner can claim copyright distinct from the photographer (and distinct from the image editor). See advice regarding EXIF in images. --Very trivial (talk) 05:43, 19 April 2017 (UTC)
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