Commons:Deletion requests/File:Aage Bohr.jpg

File:Aage Bohr.jpg

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 is currently tagged with {{PD-Denmark}} and dated to 1955. Thus the uploader consider this photo not to be a work. However it is a studio photo where a single subject is clearly posing. To me that does "display artistic merit or originality" meaning it is a work and thus copyrightable in Denmark until 2015. heb [T C E] 02:07, 30 May 2012 (UTC)

• Comment. How the photo appears to us is irrelevant here, relevant is how it is treated by the Danish copyright law. I have briefly looked through it [1], and it basically says that all photographic works are protected for 50 years from the production date. Materialscientist (talk) 03:47, 30 May 2012 (UTC)

You seem to forget §63:

63.–(1) The copyright in a work shall last for 70 years after the year of the author’s death or with regard to the works mentioned in section 6 after the year of death of the last surviving author. With regard to cinematographic works the copyright, however, shall last for 70 years after the year of death of the last of the following persons to survive:

(i) the principal director;

(ii) the author of the script;

(iii) the author of the dialogue; and

(iv) the composer of music specifically created for use in the cinematographic work.

(2) Where a work is made public without indication of the author’s name, generally known pseudonym or signature, the copyright shall last for 70 years after the year in which the work was made public. Where a work consists of parts, volumes, instalments, issues or episodes a separate term of protection shall run for each item.

(3) If within the period mentioned the author is indicated in accordance with section 7 or if it is established that he had died before the work was made public, the duration of copyright shall be calculated in accordance with subsection (1).'

(4) Copyright in a work of unknown authorship that has not been made public shall last 70 years after the end of the year in which the work was created.

§70, which I believe you are referring to, is for photographs without artistic merit. However the definition of "artistic merit" is not precise, and as such is a subjective evaluation in each case (hence this discussion). On the Danish Wikipedia, we had this exact same discussion previously (in Danish) and concluded that portrait photos as a rule of thumb are photographs with artistic merit ("works"). Being full aware, that this is not Danish Wikipedia, it is however the same legislation in subject and the discussion also seems relevant here. I still believe that a portrait photo, where the subject is clearly posing, is a "display [of] artistic merit or originality" and thus covered by the Danish copyright law §63 and not §70. In kind regards heb [T C E] 07:04, 30 May 2012 (UTC)

Forgive my laziness, I shall use you as an expert on this topic and a guide. Could you please show where does the law says that §63 applies to photographic works, and where does it say that §70 applies to "photographs without artistic merit"? I can't find it either in your quote or in the linked pdf. Thanks. Materialscientist (talk) 07:18, 30 May 2012 (UTC)

Due to personal problems in my family my brain is a bit over loaded and may come to bad conclusions at the moment. But I will give it a try: § 63 mention "et værk" (a work) and those are protected for 70 yrs. § 70 mention "et fotografisk billede" (a photographic picture) and pictures are protected for 50 yrs. The link between these two is § 70, 3, where there is a reference to § 1. § 1 mention "fotografisk værk" (photographic work). So a picture could both be "a work" and "a photographic picture". However, I can't think of a descision by the Danish courts confirming that. --MGA73 (talk) 16:29, 30 May 2012 (UTC)

I don't know of any court decisions either, though the white paper for the current major form of the Danish author's rights legislation (link - this is the only on-line link I have been able to find, it does match my offcial hardcopy version though), and a declaration from the Counsel to the Treasury (link), that the wither a photography is a photographic work (§63) or just a photography (§70) is a judgement based on the "the effort behind the photograph, given on an intellectual, artistic judgement of several options, eg. in relation to composition, cropping, choice of subject, perspective, angle of view, depth of field and lighting." Further it is stated that "since in almost all human made photographs, one or more of these options have been judged, almost all photographs are protected as works" (my translation in both cases). Examples of photographs not protected as works, are surveillance photographs and X-rays for medical use, where each photograph are typically taken without intellectual, artistic judging of composition, cropping, choice of subject, perspective, angle of view, depth of field or lighting.

This should all bee seen in the context of the history of the Danish author's rights legislation, which in it current major form, dates back to 1995, where it was a merge of two previous legislations: One protecting the author's rights of literary and artistic works and one protecting the author's rights of photographs. As such the term "artistic work" is relatively new and thus "plain photographs" (§70) from before 1970-01-01 are in fact not protected (but {{PD-Denmark50}} - see also Template talk:PD-Denmark50#Something_is_wrong_here for that part). PD-Denmark50 usage shows a large number of these. It is however important to remember, that it is in each case a subjective evaluation.

@Materialscientist, On a personal note, I sense sarcasm in your previous remark. If I am mistaken, the my apologies, but I do find that the use of sarcasm inappropriate and slightly offensive, when all I'm trying to do, is to get decent and useful debate, wither or not this image is a "photographic work" or just a "photography" (and thus should be deleted or preserved on commons respectively). In kind regards heb [T C E] 05:13, 31 May 2012 (UTC)

Ah no, no slight intended; I do appreciate your (both) efforts to clarify the Danish law, and I prefer to have primary legal information before editorial judgement (of the law or the photo itself). The concept of originality threshold is known, and this is what you described above. My first problem is this: (my reading of Danish is very poor, thus I use English versions or Google translation, which misses the subtleties)

1) the law [2] only discusses photographs in §70, implying all photos are in PD 50 after their creation. On the contrary, this interpretation [3] basically says, that practically all photos are PD 70 years after death of the author. In other words, practically all images made after 1942 and targeted with {{PD-Denmark50}} are affected; and thus instead of this image, {{PD-Denmark50}} itself should be nominated for deletion to have a wider discussion, as done with {{PD-Austria}}, {{PD-Germany}}, etc.

2) I got a feeling that some of these linked texts are (or contain) proposals and discussions. For example, [4]. Thus the question is where is the actual law, where are whitepapers, and what power do they have? Do we have precedents where the law was applied to protect photographs beyond 50 years? Regards. Materialscientist (talk) 06:14, 31 May 2012 (UTC)

One of the problems with legal documents, are that they are seldom officially translated and thus we are back at either Google Translate or contributors translations. Your translation of this interpretation is correct, and since it is made by the Danish Counsel to the Treasury, so it carries some weight.

1) Your reading of the UNESCO paper is slightly off, as §1 does also deal with photographies, but here termed as "photographic work". One could simplified say that §70 is a paragraph that catches all photographs, which are not covered by §1 - meaning they are not a "photographic work". So a photography has a protection time of at least 50 years no matter what (§70), but if it is considered a "photographic work" per §1, then the protection is "extended" to 70 years (§63). The legal order of precedence does in fact make it the other way though: In theory all photographs are covered by §1 (protected for 70 years), unless one can argue that they are in fact not "photographic works" and thus only covered for 50 years.

2) This link does in fact contains the proposal and white paper. However the white paper (in Danish betænkning), which is also referenced in this interpretation, does in fact contain some guidance as to what is the intentions of a law as well as recommendations for the members of the parliament on what to vote. The betænkning is usually made by a committee, lead by a politician and containing various experts. Private organisations and people are also invited to make comments to it. Once this has been done, a law proposal is made by the relevant minister. The proposal contains both the proposed text of the law, as well as the documents of the betænkning. The proposed law then have to be voted in favor of three times (slight adjustments are allowed between each vote) and if the third vote is in favor of, the law comes into effect. Following the law coming into effect, the relevant ministry publishes an updated betænkning containing the original betænkning, all adjustments and the final version. The reason for this is, that judges are expected to look at the intentions of the law, if something can be interpreted in more ways. Thus the intentions does in fact also contain some legal value, but not as much as the actual legal text, which especially our tax-legislation suffers from :)

One of the problems with photographs being just "photographs" or "photographic works" is that there is not court decisions (that I have been able to find anyway) on that subject. Most court decisions of photographies deals with indemnification/compensation of more contemporary photographs (§83), and doesn't even deal with the entire §70/§63 issue. I actually found this (however so slight) precedent on Commons where it was decided that another Danish portrait portrait photo should be deleted. It is (still) my opinion, that the choice of background, posture, lightning (and perhaps even dress of the subject) provided enough intellectual, artistic merit for it to be a "photographic work".

When I worked at a photographer during high-school I part-took in portrait photography (of everything from dogs, to babies and grownups). It was rarely just people walking in, sitting down and then have a photo taken, but usually we choose the background based on what the subject wanted or wanted to wear of clothes, choose the lighting depending on the colour of hair, usage of glasses and such. In the end came, directing the posture which was also sometimes a bit tricky. We did of course also the passport photo thing, where people came in, ordered the photo and then got it (the author's right is in fact with the person who orders it in that case, but that is a different story). In kind regards heb [T C E] 07:33, 31 May 2012 (UTC)

 Keep I find this deletion request very strange, especially in light of this much more recent discussion and decision. As long as no guidelines exist (court rulings) as to the interpretation of "artistic merit" under Danish law, Commons should use the widest possible interpretation of it. Furthermore, Reimert Kehlet, the photographer responsible for this similar photo is basically considered a businessman and an amateur, not an artist: "Kehlet var næppe selv nogen fremragende fotograf..." ("Kehlet himself was hardly an excellent photographer...", from Dansk Biografisk Leksikon). Therefore, I also find Heb's subjective judgment of the photo's appearance irrelevant. Subjective discussion of PD-Denmark50 photographs is dilettante jurisprudence, and leads nowhere. --Urbandweller (talk) 08:37, 31 May 2012 (UTC)

First, I'd like to state, that I have never claimed to be an trained expert on Danish author's rights legislation. On the other hand, I don't think that we have any present on Commons, so I guess we have to do, with whatever "dilettante jurisprudence" we can come up with. If you can contribute with someone, who actually are an expert on this subject, I'm sure it will be appreciated by a lot of people.

Second, I think you nail (your side of) our difference of opinion quite well: I do believe that Commons should use the safest possible of interpretation - not the widest possible interpretation. From my perspective this is a way to ensure that the Commons is as free as possible. Having a number of images where, we are basically awaiting one or more court ruling(s) as to the interpretation of "artistic merit" under Danish law, does not harmonize with my perception of "as free as posibble". I'd rather walk on the more safe line in this case.

Third, I am in no way on a "crusade" against, neither PD-Denmark nor PD-Denmark50. I am however of the opinion, that any licensing template should, be as specific and allow as little room for subjective interpretations as possible. One way to achieve this, is also to have good discussions and create a form of precedence for later. Initially I didn't find any, later I found Commons:Deletion requests/File:HOLange2.jpg and now I also know of the later decision. I believe in open discussions, that brings us closer to a firm established line and thus I don't think it is as big a problem to "wake up the discussion" once more, especially since nobody in previous discussions seems to have brought in the interpretation of the Danish Counsel to the Treasury, which I assume have more legal expertise at hand, than any of us present here. Its' just a new angle. Not a crusade. In kind regards heb [T C E] 09:46, 1 June 2012 (UTC)

I don't see any point in consulting legal experts, as they are also at a loss as to the definitions (e.g. "Selve sondringen mellem fotografibeskyttelse og værksbeskyttelse er ikke belyst i retspraksis. En klar definition findes heller ikke." and "Grænserne for værkshøjde fastlægges i domstolenes praksis." (both texts in Danish).

Given your stance, I suggest that you nominate the template for deletion, not just random photographs. I don't want to upload 100s of PD-Denmark50 photographs just to see them deleted someday. Besides, I don't agree that deletion discussions should be based on "gut feelings" of the random contributors participating in the discussion on a given day. They should be based on quantitative material (copyright laws or Commons policies). --Urbandweller (talk) 17:35, 1 June 2012 (UTC)

•  Comment In one of the links above "Kammeradvokaten" (the lawyer used by the Danish Government in official cases) states that it is better to be safe than sorry and almost everything except for photos taken by surveillance cameras are photographic works.

I think that the reason for this "better safe than sorry" attitude is that the paper is about when it is safe for a public authority to allow others to use photos etc. that the public authority is in possession of but where third parties have rights to under the Copyright Act.

I find no basis for the conclusion that "almost everything are photographic works" in the law and the remarks in the "betænkning". It is said that choices is one of the elements that could make it a photographic work it does not say that everything where there choises are possible makes it a work. We have the same discussion when we judge if something is PD-ineligible. If I draw a circle I make a choise of colour, size, where on the paper to draw it and how thick the line should be. But I do not think that my circle would be a work of art. In my opinion we should judge if the choises made by the photographer are so artistic and creative that it is something that not every other photographer could do. --MGA73 (talk) 14:54, 1 June 2012 (UTC)

The purpose of the paper is important to keep in mind, yes. The discussion at da-wp drew it conclusions on the same bases: the participants wanted to be safe.

I suppose portrait photography mostly is about getting the job done, quite seldom about making art. Although there are lots of decisions to be made in photography, they are probably often done following best practises, not necessarily the artistic visions of the photographer. I think the Nobel folks want a good portrait, not a discussion about how well the artist caught the spirit of the subject (which is common when you choose a painting instead). In an earlier Nobel DR somebody noted the photographer was anonymous - if you want art, you probably also tell the name of the artist.

--LPfi (talk) 18:27, 1 June 2012 (UTC)

The last line from MGA73 is also how I understand the law. Anyone can take a picture of the local town hall to example without thinking particular much about it. But with a portrait like this the photographer had to think and make choises, and the person on the picture may had wishes and requests as well. All things which mean that other could not just take a similar picture. This in opposite to the example with the town hall picture, which everyone around with a camera could take. --Dannebrog Spy (talk) 20:08, 1 June 2012 (UTC)

•  Keep Denmark has a high threshold of originality, see COM:TOO#Denmark for examples. The special legislation for photographs was meant to protect professional photographers, because in general photos do not reach the threshold of being a creative work. This is similar to other Nordic countries, there was a conscious coordination of copyright law. Making is portrait is just a photographer's daily job. It gets 50 years protection by law. /Pieter Kuiper (talk) 20:12, 2 June 2012 (UTC)

Yet the photo of the naked girl shown here (NSFW) was granted exclusive rights per Danish Author's legislation §2 in a court decision in 2010, so that is a photographic work and has 70 years of protection by law. Had it been just a photograph, exclusive right would have been granted per §70. In kind regards, heb [T C E] 07:05, 3 June 2012 (UTC)

The court did not discuss whether the photo is a work or not, as the rights are the same for new photos. The rights are defined in §2 (§70 refers to §2, it does not repeat them). The court also avoids talking about works or photographic images, but talks about "the photos" and "the images". --LPfi (talk) 07:50, 3 June 2012 (UTC)

I think you are missing one slight, but very important detail. § 70 grants exclusive rights (eneret) to "photographic images". § 2.1 grants exclusive rights to works (including "photographic works"). That is in fact why, § 70.3 does not state that the provisions of § 2.1 are also applicable on photographic images. On page 12 it states that "the court finds, that the plaintiff's authors right has been violated, as the plaintiff's, per §2, exclusive material has been utilized" (da: "Retten finder, at sagsøgerens ophavsret er krænket, da der er sket en benyttelse af sagsøgers ophavsretligt beskyttede materialer, jf. ophavsretslovens §2"). Had it been a photographic work it would have been § 70. Also if you look at the resume from Bender von Haller Dragsted of the case (Bender von Haller Dragsted is a Danish lawyer company, that has specialized in IP-rights), they states that "plaintiff's exclusive right per §2 has been violated" (da: "sagsøgers eneret efter ophavsretslovens § 2 var krænket"). So no the court did not discuss it, but they did take a stance on it. --heb [T C E] 13:36, 3 June 2012 (UTC)

While I do follow your logic, Heb, I think that you stretching that conclusion just a bit too far. The references are not to §2 in its entirety and not to part 1 of §2 either, and since publication, public performance etc. are defined in parts 2 to 4 they very much in defining what the exclusive rights are. I note that Bender von Haller Dragsted does not seem to state that this anything to do with the threshold of originality or §1. Neither does Peter Schønning in the 5th edition of Ophavsretsloven med kommentarer from 2011. The only court case he lists on the topic is one where someone claimed to have the rights to some photographs of furniture under §1 (p. 125, U2011.115H, [5] and [6]), but where the court ruled that some similar pictures wheren't copyright violations without stating why (if they were below the threshold, not similar enough or otherwise). I think it would be a very surprising conclusion that the image you linked above would be considered a work, so I would prefer a clearer statement from an expert that that is what the court case means, before we start deleting images on the basis of comparisons with it. Peter Alberti (talk) 07:14, 5 June 2012 (UTC)

•  Keep To quote a quote in Peter Schønning (2011, 5th edition) Ophavsretsloven med kommentarer (written after the case Heb links above), p. 125, a photograph is considered a work if "det er ophavsmandens egen intellektuelle frembringelse og afspejler hans personlighed, …" ("it is the author's own intellectual creation and reflects his personality, …"). That it has to reflect the photographer's personality is not just a high threshold but a very high threshold, and it is not met by a skilful lighting or choice of background colour. Although I am stepping into the zone of what Urbandweller correctly describes as "dilettante jurisprudence", I see none of the photographer's personality in the photograph, only his skill, and vote keep on that basis. Peter Alberti (talk) 07:14, 5 June 2012 (UTC)

I have never seen this "definition" of a work before, but we probably can't find any people better versed in the subject, than Schønning so a quote from him is certainly something to be weighted in. With that in mind, I agree that the above portrait photo, is not a likely "photographic work" and thus I consider that any possibility of significant doubt about the freedom of "simple" portrait photos, older than 50 years taken in Denmark being void. In kind regards, heb [T C E] 03:57, 7 June 2012 (UTC)

---

 Kept, According to one of the foremost lawyers on intellectual property and author's rights in Denmark Peter Schønning, a photograph taken in Denmark is a work (covered in 70 years after the year of the author’s death per §63) when it displays "the author's own intellectual creation and reflects his personality". Photographs that does not display the author's personality and intellectual creation, are protected 50 complete (gregorian) calendar years following the year of the photographs creation (§50).
A vast majority of the participants in the discussion above, consider that a portrait photograph does not does not display the author's personality and intellectual creation.
Thus there are no significant doubt that the photo is only protected for 50 complete calendar years after the creation. In kind regards, heb [T C E] 07:08, 19 July 2012 (UTC)