Commons:Deletion requests/File:Nighthawks by Edward Hopper 1942.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:Nighthawks by Edward Hopper 1942.jpg

[edit]

Speedy delete. Pointy disruption related to an enwiki content dispute. There is no evidence that this image is PD and it has been reported as in-copyright in reliable press reports discussing image licensing. Hullaballoo Wolfowitz (talk) 12:10, 5 May 2013 (UTC)[reply]

  •  Keep I fail to see how uploading an PD image in use on Wikipedia to Commons as pointy disruption. I include by reference File talk:Nighthawks by Edward Hopper 1942.jpg, where the reasons why this was believed to be PD are mentioned. Link your reliable press reports, but I'm skeptic of any such things; the press is hardly a reliable source of such things.--Prosfilaes (talk) 13:03, 5 May 2013 (UTC)[reply]
  •  Delete per Commons:Copyright rules by subject matter#2D art (paintings etc.). Artist died in 1967[1], so life of artist + 70 years is 2037. Work is not in the public domain. -Nathan Johnson (talk) 14:06, 5 May 2013 (UTC)[reply]
    • The life of the artist has nothing to do with the duration of copyright of this work for the Wikimedia Foundation. As Commons:Copyright_rules_by_territory#United_States says, it had to be renewed 28 years after publication to preserve its copyright; it wasn't.--Prosfilaes (talk) 15:44, 5 May 2013 (UTC)[reply]
      • Arguably it is a singular work of art and never has been published in a formal manner. See this US Copyright Office circular: [2] "A work of art that exists in only one copy, such as a painting or a statue, is not regarded as published when the single existing copy is sold or offered for sale in the traditional way, such as through an art dealer, gallery, or auction house." (We know AIC acquired the painting via sale). Therefore, as "unpublished", life + 70 does seem to apply. --Masem (talk) 16:57, 5 May 2013 (UTC)[reply]
        • First place, that definition is modern; there was a different definition pre-1978. See s:American Tobacco Co. v. Werckmeister and w:Chicago Picasso#History. Secondly, it is obviously published in more then one copy, or else we wouldn't have a copy here. A painting that has seen publication in books is clearly published in a formal manner.--Prosfilaes (talk) 19:15, 5 May 2013 (UTC)[reply]
          • There is only one copy of the painting; there are many copies of photographs of the painting. It remains a singular work and unpublished, by every way I read copyright law. --Masem (talk) 21:11, 5 May 2013 (UTC)[reply]
            • Then how exactly would you copy a painting, if not by photographs? The next paragraph from the section you keep quoting says "When the work is reproduced in multiple copies, such as in reproductions of a painting or castings of a statue, the work is published when the reproductions are publicly distributed or offered to a group for further distribution or public display." It doesn't not specify any limitation on in what form it's reproduced.--Prosfilaes (talk) 02:07, 6 May 2013 (UTC)[reply]
              • I don't think a photograph of a painting is equal to a reproduction in the context of that law. (I know that when you buy some paintings today due to modern lithography, you are getting copy X of Y total made; this is the reproduction that the law would suggest). But, again, there's also the concept of "slavish reproduction" whereby photographs of 2D works technically are not creative enough to gain new copyright. This link from the WIPO [3] suggests that we are talking life + 70 (they specifically mention the US here), again pointing to the fact as there is only exactly one copy of Nighthawks - and a number of photographs of it - the work was never published, and thus under life + 70 terms. --Masem (talk) 03:28, 6 May 2013 (UTC)[reply]
                • So that WIPO document overturns US law now? They obviously misstate US law, because it's not life+70 for most purposes. But it does say that "Photographing a copyright work amounts to reproducing it." (bold in the original), which argues against your claim that it's not equal to reproduction.
                • Exactly. A photograph slavishly reproduces the work and they don't get a new copyright. Either they have the old copyright and thus count as distributing copies of a work, or they have no copyright and we should have no problem reproducing them here without infringing the original work.
                • By your analogy, Harry Potter has never been published; since there's one copy in manuscript and a number of reproductions of it.--Prosfilaes (talk) 04:54, 6 May 2013 (UTC)[reply]
                  • The Harry Potter is a completely different case. The work was made to be distributed in multiple copies, and it was published in mass media. For this painting, there is the painting - and then there are hundreds of photographs that themselves have received mass publication. The issue rests on what is "publication" for a painting, knowing full well that reproductions of the painting get wide distribution, but the painting remains a singular object.
                  • Here's another article for consideration, [4] talking about the issues of 20th century artists, and they specifically talk about life + 70 for nearly all cases, including something like [5] which might actually be tagged wrong on the en.wiki (since the NYTimes claims the +70 started after the heirs died). Basically, every thing I hit on for copyright on singular paintings that are put on display in museums, life + 70 keeps coming up, not the rules based on registering copyright. --Masem (talk) 05:31, 6 May 2013 (UTC)[reply]
                    • That article appears to be somewhat misinformed. It is correct that often the artist does retain copyright (usually not the museum) and the estate must be contacted in many cases. As a foreign artist, many Picasso works were restored by the URAA, and his works do have a 70pma term in Europe. However, works published before 1978 never had a US term based on the author's death, rather it was always a term based on publication. Certainly any 1923 or later Picasso work is still under US copyright (likely 95 years from publication), though some earlier ones may not be -- in fact, en-wiki does have a copy of the painting mentioned in that article, although it cannot be copied to Commons (not free in the country of origin and won't be for a long time). Carl Lindberg (talk) 05:52, 6 May 2013 (UTC)[reply]
          • Um no, a photograph is (or can be) a slavish copy of a painting. That is what the Bridgeman v Corel ruling was about. A painting can absolutely be published via photographs of it being published -- in the worst case, a derivative work causes as much expression from the original that exists in the derivative to be published (this has been ruled on, in order to prevent shenanigans of trying to control published derivative works with the infinite copyright of an "unpublished" original). If a photograph is published which is a slavish copy, then pretty much all the expression in the original has also been published. Furthermore, you are arguing with post-1978 definitions; that is not appropriate for actions which occurred earlier. The Copyright Act 1909 is still the controlling law for actions before 1978; the later laws do not override the earlier law nor earlier court decisions in the sense that we do not look at pre-1978 actions in a new light. The s:American Tobacco Co. v. Werckmeister case is much more relevant than either the Copyright Office circular or the 1976 Copyright Act. Please also see Commons:Public art and copyrights in the US, and if you want a really in-depth treatment of the various twists of the meaning of "publication" see this paper. Also this paper, which notes a case (Scherr v. Universal Match Corp.) which held that public display of a sculpture constituted publication (since there were restrictions on copying such as by photography, a cite of the Werckmeister case), and it was also without notice since the only copyright notice was 22 feet off the ground and not visible. Furthermore, the Chicago Picasso case was ruled on without the actual statue being there at all -- it lost PD status because of both a small maquette of the sculpture was exhibited plus photographs of it were distributed, all without copyright notice. It is true that Werckmeister ruled that if there were restrictions on further copying, then copyright would not be lost by public display, but it was not until 1978 that it became impossible (although distributing it to others for purposes of public display could constitute publication there). So that becomes the thornier question... when was it published exactly. Were there photography restrictions at the museum? Was it published in books, magazines, or newspapers? Which was the first? In the end, it is most likely that it got published at some point in that era (at least as much as a photograph would show). Being long before 1964, that also virtually certainly means that a renewal would have been necessary. While there is never 100% certainty on these things, it's an extreme longshot to claim it's still unpublished. Carl Lindberg (talk) 05:44, 6 May 2013 (UTC)[reply]
            • The AIC lists the various dates related to the exhibiting of the photo and when itself knew it published the photo in books (albeit 1990s, so not helpful here). If it is the case that the Oct 1942 date - the day it was first shown - was the publication date, then I completely agree it's likely PD by all other measures on the assumption there was no notice or registration. --Masem (talk) 06:01, 6 May 2013 (UTC)[reply]
              • Hm yeah, that's a rather convenient publication history section. But that does show that putting photographs of the painting in a book is considered publication even by them. There is at least one copy in this 1950 book; it mentions the photograph was supplied by the museum. That book was registered and renewed, though the renewal may not have covered the painting. It was also in this book (as plate 28), which was also from 1950. I don't think there is any way the painting is unpublished; it appeared in many other books it would seem as well. The painting could be covered by the books' copyright in theory at least for 28 years, but I'm not sure about the renewals. I'm not sure that any of the would have had standing to renew the copyrights; that would have needed to be done by Hopper's estate or heirs. Carl Lindberg (talk) 06:39, 6 May 2013 (UTC)[reply]
                • Well, I just found this: the booklet that was printed as part of the 1942 showing, and look what's one of the pages: [6] - eg we can confirm publication in 1942. And then, perhaps the definitive argument, is the link on that page pointing to [7] which says, and specifically in example: "These publications illustrate more artworks that are now in the public domain in the United States because the artists did not file copyright renewal applications within the one-year renewal window at the end of the 28 years following the first publication. All of these artists died fewer than 70 years ago, so these artworks are potentially protected by copyright in countries that calculate copyright protection based on the life of the artist. Edward Hopper, Nighthawks, 1942. From: The Art Institute of Chicago, Fifty-third Annual Exhibition of American Paintings and Sculpture. Chicago: 1942." This clearly gives us enough to say the image is PD in the US. Since Hopper is American, would this even carry to other countries? That would be the only reason not to keep here at Commons. --Masem (talk) 13:26, 6 May 2013 (UTC)[reply]

Good find and thanks for the research! It is a shame that I can't quote email here but I believe a copy of both wills exist and I am trying to get scanned or photographed versions of them to show that no copyrights were bequeathed to the Whitney Museum. I also believe there were blood relatives, but few left, and they either weren't aware or did any renewals of copyrights from 1969 to 1970. They would be the only ones that could possibly ask the WMF to remove the image. After all the research we have done I would assume that the WMF will ask for renewal number, document name, entry title, and year of renewal.--Canoe1967 (talk) 17:01, 6 May 2013 (UTC)[reply]

  • Also, found a secondary reference to book publication of the print of Nighthawks in 1950. The 1950 book is titled The Pocket History of American Painting published by w:Pocket Books. The secondary reference for this is Six Who Knew Edward Hopper, James Thomas Flexner, et al. Art Journal, Vol. 41, No. 2, (Summer, 1981), pp. 125-135 at 133 (Flexner wrote copy for the pocket book that was illustrated by Nighthawks and notes that the pocket book was widely sold and translated. Also, according to Flexner, the artist did not become aware of the publication until after it was published (that's how they became friends because Hopper liked what was written) -- but no copyright claim by the artist is mentioned, perhaps they did not think in those terms in 1950, and the artist and museum just wanted the work seen and appreciated. Alanscottwalker (talk) 23:07, 5 May 2013 (UTC)[reply]
According to Commons:Hirtle chart that is how it works. Either no renewal or no proper notice makes it public domain. I may email http://www.allposters.ca/help/terms.html . They sell over 200 of his works. They have probably done any needed copyright searches as well to show no renewal.--Canoe1967 (talk) 18:04, 5 May 2013 (UTC)[reply]
Except, again, it is a single painting and has not been published and thus technically should fit the first row of that chart - life + 70. --Masem (talk) 18:55, 5 May 2013 (UTC)[reply]
It has been published; there have been many, many copies made of it over the years.--Prosfilaes (talk) 19:17, 5 May 2013 (UTC)[reply]
Paintings are considered published when first exhibited to the public. The AIC bought it soon after completion in 1942, and their websites confirms it was exhibited first in 1942.--Canoe1967 (talk) 19:23, 5 May 2013 (UTC)[reply]
Not according to the US copyright office; they specifically give the example of displaying a work as not an act of publishing. AIC has no copyright control on the painting as the act of selling does not automatically include copyright (that would have had to been in contract). --Masem (talk) 21:11, 5 May 2013 (UTC)[reply]
Look, I pointed you to the case law on this subject. See s:American Tobacco Co. v. Werckmeister and w:Chicago Picasso#History. Really do take a look.--Prosfilaes (talk) 02:05, 6 May 2013 (UTC)[reply]
I looked at both and its hard to argue how they apply. The SCOTUS case was in the early 20th century, and given that life + 70 was introduced in 1998, we have to look to the latest law which would override such cases. The Chicago Picasso is a fact it was in a public location outside and heavily publishized during its construction that caused it to be considered in the PD. We're talking about a painting in a museum, which has very different rules from an outdoor fixed sculpture. --Masem (talk) 03:37, 6 May 2013 (UTC)[reply]
Once published, always published. The latest law would not restore copyright to works that are out of copyright; the only law that's done that is the URAA. The Chicago Picasso was not outside. Read it again; it lost its copyright before the large statute was ever constructed, because photographs of the small model were distributed without copyright notices.--Prosfilaes (talk) 04:54, 6 May 2013 (UTC)[reply]
That's not strictly true. They were often considered published when displayed to the public and there were no restrictions on further copying. That can be a difficult thing to assess. Furthermore, that situation stopped as of 1978, where public display (or broadcast over TV) explicitly could not cause publication by itself no matter the circumstance. Carl Lindberg (talk) 05:44, 6 May 2013 (UTC)[reply]
Paramount v. Rubinowitz and NBC v. Sonneborn show that broadcast over TV didn't cause publication pre-1978.--Prosfilaes (talk) 07:10, 6 May 2013 (UTC)[reply]
Whoops, sorry yes, that is correct -- broadcast has never itself meant publication per that (and other) court rulings. I just meant that the 1976 law made that explicit in statute rather than being case law from the courts, but I clumsily worded that, as it is indeed a different situation than public display (where the legal situation did change with the 1976 law). Carl Lindberg (talk) 03:40, 7 May 2013 (UTC)[reply]
  • Comment Trying to find anything to justify this, I came across this page from the National Gallery of Arts [8] where I point out there is a copyright on the photograph of the painting by the AIC (nothing is said on the painting itself). Similarly, the AIC wants to license the image [9], but again, that's likely the photograph and not the painting itself. (At the same time, they want to license out American Gothic, which even by 70 + life, should be out of copyright, so we're talking their photos of the paintings, not the paintings themselves). It has been suggested that museums can be a bit zealous on this, and there is the aspect that photographing 2D paintings should not be creating a new copyright since there's no creative artistry involved, but that said, this might weigh in on this image. At most, this might suggest we need a Wikipedia to go take a photo of the painting itself if the painting is out of copyright to avoid the claim the AIC is making about the image's copyright. --Masem (talk) 21:39, 5 May 2013 (UTC)[reply]
The Whitney Museum: http://whitney.org/Collection/EdwardHopper Has copyright marks on works they own claiming “© Heirs of Josephine N. Hopper, licensed by the Whitney Museum of American Art, New York” which may be a false claim if no heirs exist. If they do exist then they would have been the ones to register the renewal in the tight window mentioned above and they would be selling copies, not the AIC which merely owns the painting. I uploaded the sales invoice that shows no rights were transfered to AIC when they bought it: File:Nighthawks invoice Ed Hopper 1942.jpg. This is a cute find--Canoe1967 (talk) 22:37, 5 May 2013 (UTC)[reply]
  •  Keep to be clear, based on this source [10] we have a reliable source on copyright explaining how Nighthawks is, at minimum, PD-US for lack of registration. --Masem (talk) 01:16, 8 May 2013 (UTC)[reply]
  •  Keep per above...Modernist 02:29, 9 May 2013 (UTC)

Kept: No consensus to delete. Strong evidence in favor of Public Domain status. Powers (talk) 17:57, 18 May 2013 (UTC)[reply]

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