Commons:Deletion requests/File:1980s albums by Uncle Bonsai.jpg

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

File:1980s albums by Uncle Bonsai.jpg

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Derivative work of a record cover that is unlikely to be available with a free license. Verbcatcher (talk) 19:01, 1 February 2022 (UTC)[reply]

 Keep Not a picture of a single cover but two covers: the angle makes the artwork hard to discern, but that's exactly the reason why a de minimis exception would apply. In line with this comment, the picture is used on multiple projects in ways where the actual artwork is not material, e.g. Dutch Wiktionary uses it to illustrate the meaning of the Dutch equivalent of record sleeve. --MarcoSwart (talk) 12:20, 2 February 2022 (UTC)[reply]
@MarcoSwart: Commons:De minimis says: As a general guideline, however, a file containing copyrighted work X is less likely to satisfy de minimis the more of these it meets:
  • the file is in use to illustrate X
The file is used to illustrate the English Wikipedia article about the band: w:en:Uncle Bonsai
  • the file is categorised in relation to X
  • X is referenced in the filename
The name of the band is included in the filename
  • X is referenced in the description
The names of the albums and of the band are referenced in the description
  • X cannot be removed from the file without making the file useless
If the album cover artwork was blocked out then the file would be useless.
This file meets all but one of these tests, so it is very unlikely that de minimis applies. Verbcatcher (talk) 04:11, 3 February 2022 (UTC)[reply]
We need to be precise in the meaning of X: it refers to the work on which the copyright might be infringed (not: the artist, the band or the record company that may possess this right). In this case that would be the artwork on the two (rather different) covers, so in all probability we have to deal with X1 and X2. But the same reasoning applies to both:
  • the file is not in use to illustrate either work of art, in fact, the artwork itself is not even mentioned in the article in English Wikipedia
  • the file is not categorized in relation to the artwork
  • the artwork is not referenced in the filename
  • the artwork is not referenced in the description
  • in all use cases except English Wikipedia removing the artwork (let's say: blur it, or replace it with PD imagery) would not make any difference; in all use cases the angle of the photograph and the disorderly combining of two different covers are a clear indication that the artwork itself is not a crucial part of this picture.
There is no way in which this photograph could substantially change anything in the possibilities of the copyright holders to exploit the artwork. For this reason, de minimis is applicable. --MarcoSwart (talk) 11:29, 3 February 2022 (UTC)[reply]
The wording in the COM:DM guidelines is 'referenced', not 'named'. 'Uncle Bonsai' in the file name and description are clear references to the non-free content. Both albums are named in the description. Your point about 'the possibilities of the copyright holders to exploit the artwork' appears to relate non-free content on Wikipedia (see w:en:WP:NFCC), and is not mentioned in COM:DM United States. (Uncle Bonsai is an American band so we should assume that the US rules apply.) Verbcatcher (talk) 21:11, 3 February 2022 (UTC)[reply]
Moreover, the description added by the uploader includes "This is a photograph I took of my two Uncle Bonsai albums", indicating that these albums are the subject of the photograph, and are not incidental to it. Verbcatcher (talk) 21:15, 3 February 2022 (UTC)[reply]
The difference between our views doesn't concern the wording of COM:DM or the rules we need to apply. Indeed, references are made to the names of the band and the albums, but neither of these names are by themselves copyrighted works contained in the file. Only the artwork of the two covers can be considered "copyrighted works contained in the file". My point is and was that de minimis does apply to this use. MarcoSwart (talk) 14:12, 4 February 2022 (UTC)[reply]
  •  Delete per nomination. The unwritten de minimis defense is not available in this case. The cover image is visible in full as the central element (one of the two central elements) of this photograph. Whether "this photograph could substantially change anything in the possibilities of the copyright holders to exploit the artwork" (User:MarcoSwart) is not the proper test, as is particularly evident in the case law of the Ninth Circuit, where the Wikimedia Foundation is based. See Bell v. Wilmott Storage Servs., LLC, 12 F.4th 1065, 1078–79 (9th Cir. 2021) (stating that "[o]ur long line of precedent and that of the majority of our sister circuits supports the application of the de minimis principle in copyright only to questions of substantial similarity (and potentially fair use), i.e., whether there was de minimis copying of the protected work so as to be non-recognizable as a copy. Wholesale copying or reproduction of another's protected work, like the Indianapolis photo, by definition cannot be de minimis copying."; underlining added). — Pajz (talk) 10:03, 10 May 2022 (UTC)[reply]

Deleted: per nomination and Pajz. --Rosenzweig τ 10:41, 30 May 2022 (UTC)[reply]

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