Commons:Deletion requests/Images of costumes tagged as copyvios by AnimeFan

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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.

Images of costumes tagged as copyvios by AnimeFan

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I will add below images tagged by AnimeFan as copyvios, because I don't think they should be speedy deleted and it is easier to discuss them in one place. Between parenthesis is the rationale given in the {{Copyvio}} tag. --Tryphon (talk) 14:29, 3 March 2009 (UTC)[reply]

 Delete Those are my answers to the points made

  • Those costumes are not original works, they are derivative works of known characters. In fact, that's the whole point of cosplay, after all.
  • Arguments such as "nobody would sue a fan" or "anime companies do not care" are not accepted due to the Precautionary principle policy. Yes, nobody would sue a fan, until someone finally does. Nobody would sue people for using Napster to download mp3s either; until Metallica did it.
  • For the legal background, derivative works being under the same copyright laws than the original work is explained in detail in Commons:Derivative works. To keep a derivative work around, evidence must be provided of it not actually being for the law a derivative work, or being an acceptable free derivative work. In case of doubt: it must be deleted: that's not paranoia, that an official policy. If there is significant doubt about the freedom of a particular file it should be deleted.
  • It's not needed to delete the entire Cosplay category, in fact that seems like a straw-man argument because that wasn't the proposal. There are cases that may be accepted or at least ambiguous: de minimis (someone in a populated parade of people with costumes wich are not DW), the "costume" is just everyday clothing (nobody is costumed of James Bond just by wearing a black jacket), the costume fails miserably to actually resemble the character (like someone with 3 knifes tied to his hand, pretending to be Wolverine) or the original character is itself in the public domain already.
  • GA or FA issues are of zero concern here. Copyright status takes priority over convenience. Even if there were no free images at all about a subject, or acceptable fair-use ones for the wikis that still employ fair use (wich is not the case for the Cosplay article, as explained, so the point is moot), the article may be good or even featured anyway. It would have to be explained, but if the imposibility to ilustrate an article is correctly stated nobody would deny good or feature status solely on the grounds of the lack of images.
  • I remind users that "per user" arguments are not real arguments, and are not taken in consideration when closing. Deletion requests are not voting or straw polls Belgrano (talk) 22:50, 3 March 2009 (UTC)[reply]
  • Keep. I've seen no evidence that photos of people in costumes are forbidden. Much of these pictures appear to come from Flickr, which uses a Creative Commons Attribution 2.0 license. Are people afraid that the copyright owners of the costumes are going to sue? How do you even know that the costumes are copyrighted? Most of them look homemade. CAN costumes be copyrighted? It's not a strawman to suggest that this would affect the entire Cosplay and Costumes categories. Whose copyrights are being violated? --Costumed Adventurer (talk) 23:42, 3 March 2009 (UTC)[reply]
  •  Delete - I haven't looked at all the images, but if the character is copyrighted, and these are people dressed up as that character, that's a derivative work, and thus a copyright violation. -mattbuck (Talk) 00:23, 4 March 2009 (UTC)[reply]
  •  Keep Under U.S. copyright law, clothing and costumes actually being worn by people are generally considered predominantly "functional" or "utilitarian" in character. Sometimes both U.S. law and the laws of another country this, even the countries that don't allow fair-use. Costumes are free everywhere to being used. I think this template says everything. You guys may want to delete all this category Mizunoryu 大熊猫❤小熊猫 (talk) 04:42, 4 March 2009 (UTC)[reply]
  •  Keep Per Stefan-Xp, Piotrus & Mizunoryu. I have nothing more to add... Electron (talk) 08:34, 4 March 2009 (UTC)[reply]
  •  Delete Commons:Fan art: "Batmobile from Batman Returns is a unique artistic creation and fan art of it would fall under the original copyright.". The same case here to most of these pictures because it would fall under the original copyright. Anyway, if the images are terrible enough, they are out of scope (they couldn't be used in the articles of the characters, and we are not uncyclopedia to make fun of them). If they are good enough to be used in the articles of the characters, they are derivative works. Either way, they should be deleted. Dragonbeat (talk) 12:43, 4 March 2009 (UTC)[reply]
  • Comment: Previous similar case: Commons:Deletion requests/Star Wars images. Dragonbeat (talk) 12:43, 4 March 2009 (UTC)[reply]
  •  Keep most of them (File:Clone troopers in the spotlight.jpg, File:Wiki Spiderman.jpg and maybe File:New York Pokemon D and P Launch Party 3.jpg are the ones I would delete.)
    As of the other images, first there is the case of costumes based on movie characters (by that I mean flesh and bone). The important thing to keep in mind is that clothes being utilitarian, they are not copyrightable (even designer clothes). There are obvious cases, like File:X-Files Dana Scully Cosplay.jpg, and less obvious ones, like File:Burning_Man_2007_-_178.jpg (in this case, the design of outfit by Jean-Paul Gaultier is clearly copyrightable, but a picture of someone wearing the outfit isn't).
    Then there is the case of costumes based on animation or comics characters. Here the costumes are less utilitarian, but on the other hand, a picture of someone wearing such homemade costume is far from an accurate representation of the copyrighted character. Again, I think there is a major distinction between the copyrighted character design, and a photograph of someone in a costume remotely resembling it. I'm not trying to give a fair use rationale, it's more a de minimis rationale. We're not talking about a picture of copyrighted material, but a picture of a person wearing a homemade outfit inspired by a copyrighted character... there's a long way to go to see a copyright infringement in that.
    Eventually, there is the case of "official" costumes, or very realistic ones like File:Clone troopers in the spotlight.jpg (and it's probably that kind of stuff that was discussed in Commons:Deletion requests/Star Wars images). In this case, the copyright infringement is much more direct; the creator of the costume holds copyrights, and if the costume makes it impossible to distinguish the original character from a random person wearing it (the Darth Vader case), then it is obviously a copyvio.
    This is a difficult problem, and simply saying it's derivative work or no one will sue a fan is leaving a lot of the issues at stake out of the discussion. I hope we can find a subtle solution to this subtle problem. --Tryphon (talk) 13:15, 4 March 2009 (UTC)[reply]
  • Delete per en:WP:DUCK. Snakemon (talk) 14:31, 4 March 2009 (UTC)[reply]

Maybe you guys might read this. There are some interesting issues here. (Please provide the title of the work), Any greater character “story” exists only in the private imagination of each discrete player, and its contours are understood only by that player. This imaginative context is not a “work.” The only recognizable work is a costume worn by players. It is established law that there is no copyright in costumes when such costumes are worn by real individuals.

Because Marvel’s claims based on “character” copyright are inapplicable to the costumes worn in the social environment that is Paragon City, Marvel has no basis on which to claim infringement of “characters,” and its claims should fail.

The creator of Pyra Phoenix may happen to be a fourteen-year-old girl who is an ardent fan of the well-known Phoenix.4 (2d Am. Compl. ¶ 43). In addition to her personal creativity, this young fan may hone her artistic skill by rendering comic book panels from the Phoenix series on her school notebooks, by sewing a Phoenix costume for herself and by writing “fan fiction” featuring new exploits of Phoenix.5 Perhaps she shares these creative and imaginative efforts with a small circle of her school friends. Virtual worlds extend the creativity that we accept—and even celebrate offline—when inventive children craft their own costumes and pretend to be Spider Man or the Hulk in their backyards.Congress, in legislating copyright protection, did not intend to limit artistic freedoms to express oneself and hone artistic skills through personal, creative, instructive and non-commercial activities.

As long as I understood, cosplay for fun is not an infringiment. But if someone makes money doing an event for this, or to sell his cosplayed pics it is. Mizunoryu 大熊猫❤小熊猫 (talk) 16:14, 4 March 2009 (UTC)[reply]
In which case it's not free to be used commercially, and so isn't acceptable for commons to host. -mattbuck (Talk) 17:01, 4 March 2009 (UTC)[reply]

The same way the logos and cover accepted here cannot. Mizunoryu 大熊猫❤小熊猫 (talk) 17:40, 4 March 2009 (UTC)[reply]

Commercial use of the work must be allowed.

— Commons:Licensing
According to the text you've just presented it's fair use, not accepted here. Read it again. AnimeFan (talk) 17:51, 4 March 2009 (UTC)[reply]

Commons:Non-copyright restrictions for sure. Try selling a software with this, for you see what happens. Mizunoryu 大熊猫❤小熊猫 (talk) 18:12, 4 March 2009 (UTC)[reply]

  • Comment: Mizunoryu and Tryphon's arguments to keep - the claim that some of these costumes are "utilitarian" and therefore de minimis - is compelling and may have some precedent in case law but is precisely the kind of difficult legal argument we should not be making without consulting an IP lawyer. One way to frame the question of whether to keep an image on Commons is: if we started selling millions of posters of one of these images, would we be (successfully) sued? If one of these costumes was featured in a major Broadway production otherwise unrelated to the character, would the theater be (successfully) sued? Any image on Commons must be usable in high-profile commercial work, and not merely in the amateur context in which it was taken. Images which differ significantly enough from the character that they are not identifiable as the character, I would argue should be kept; however, they can only reasonably be used to illustrate a limited scope of articles, such as en:cosplay, being poor representations of the characters in question. I would also argue these images should be renamed to something more generic to avoid suggesting that they are intended to be accurate representations of the characters that they are based on. Dcoetzee (talk) 21:40, 4 March 2009 (UTC)[reply]
Look at Commons:Deletion_requests/Star_Wars_images for a quasi-official opinion by Mike Godwin (which for some reason was not really applied in that case). AnonMoos (talk) 23:27, 4 March 2009 (UTC)[reply]
Comment If the picture is used to illustrate an article of a character, it is essencially derivative work of a copyrighted image, therefore forbidden here. If we limit where it can be used or not (for instance "it cannot be used to illustrate articles of characters"), it is essencially fair use, therefore forbidden here. AnimeFan (talk) 22:53, 4 March 2009 (UTC)[reply]
No, the first part of your statement is wrong: how an image is used does not define its copyright status. It goes the other way around. An image by itself is a copyright infringement or it is not, but it doesn't depend on context. Just like File:D letter upon three circles and a castle.svg is not a copyright violation, even if it's used to illustrate an article about Disney. --Tryphon (talk) 23:17, 4 March 2009 (UTC)[reply]
Yes, to clarify my argument: I'm arguing that images that are not derivative works are, in this case, not useful for illustrating articles of characters; this would still be legal. Dcoetzee (talk) 23:26, 4 March 2009 (UTC)[reply]

This issue is really hard. But I don't think there's a copyright infrngment since all the word do costume play. I think {{Copydesign}} would be sufficient to use with these images. Mizunoryu 大熊猫❤小熊猫 (talk) 01:42, 5 March 2009 (UTC)[reply]

You can't argue that something isn't a copyright violation just because everyone does it. -mattbuck (Talk) 02:17, 5 March 2009 (UTC)[reply]

What I meant is that there isn't any law in the world that prohibits such a practice, so fae...Mizunoryu 大熊猫❤小熊猫 (talk) 15:56, 5 March 2009 (UTC)[reply]

 Keep I've been holding off on commenting as I've been genuinely torn: two of items up for deletion are my own images so I wanted them to stick around, yet if they could only be here under a fair use argument, then I'd want to have them removed. Mike's comments seem to be quite clear on the topic and I'm willing to trust his legal judgment so that's why I'm voting the way I am. Tabercil (talk) 22:33, 5 March 2009 (UTC)[reply]

The following comment is very relevant:

  • Fashion is, AFAIK, not fully copyrightable in the U.S., because it is a useful article. The purpose of clothing is to cover the (human) body. You cannot copyright the exact cut of a piece of clothing, but maybe you can get a design patent if it's truly novel. Just google for +fashion +"copyright law"... The top hits look all like good information, just look at [1] or [2]. A textile design may be copyrighted, though, just as any other graphic work.
  • Costumes of fictional characters are a different beast, though. The Spiderman costume clearly came to life in the comic, and I would say it's copyrighted because of that. You can't make your own drawing of Spiderman and publish it just like that, can you? The costume is a derivative work of that original drawing, and the photo of someone wearing such a costume is again a derivative work of that costume and thus a derivative of the original comic. Hence copyrighted.
  • I would also argue the same for the Star Wars costumes. These are, IMO, not "useful articles". Their primary purpose is not to cover the human body (although the movies would look hilarious if all the actors were naked, and they'd gotten an "adult only" rating for sure :-)), but to convey specific traits of the characters portrayed. These costumes were designed in the movies' storyboards expressly to elicit a certain effect with the audience: it's no coincidence that the Startroopers all wear these strange masks and shiny body armor. It's no coincidence at all that Darth Vader is clothed in black and has a black helmet/mask. It's no coincidence either that the good guys wear ragged clothes. I would contend that these early decisions of the filmmakers are so integral to the whole movie and original enough that the precise costumes chosen might well be copyrightable. In fact, I'd be surprised if the makers of that movie (Lucas film, I think?) did not have a copyright on these outfits. They do have (or at least claim!) copyright over toys like "action figures" in the shapes of the protagonists. (As do other film makers, just take a look at the Harry Potter or the Jack Sparrow toys.) Apparently, these are considered derivative works of the movies.
  • On the Star Wars costumes, please also see Star Wars costume-maker strikes back against George Lucas, Times Online, April 7, 2008. (Also [3] and [4] at the Guardian, and many more.) Evidently these costumes are copyrighted... even if now George Lucas and the designer argue about whose copyright that is. (Unfortunately, IPKat mentions this case only in passing, and although the April 7 articles said the case was expected to last ten days, I have not seen anything on the outcome. Maybe User:MichaelMaggs knows where to find the court ruling?) Note that a U.S. court already has ruled in favor of Lucas, so in the U.S., we certainly should treat these as copyrighted.
  • Dressing up in a bought Star Wars costume is not a copyright violation. The whole point of selling these costumes is presumably that people dress up. The manufacturer of such costumes would have a license from Lucas film. But staging a public performance would, I think, require a license from Lucas film. And possibly a photo of such a performance would need to be cleared by Lucas film and by the performer. Just dressing up in such a costume and handing out candy to kids (or whatever) probably isn't a performance, but any photo of that would still be a derivative work of the (copyrighted) costume.
Update: The 2006 U.S. case was Lucasfilm Ltd. v. Shepperton Design Studios Ltd, 2:05-cv-03434-RGK-MAN, U.S. District Court, Central District of California (Los Angeles), with this final verdict in favor of Lucasfilm. The UK case seems to be Lucasfilm Ltd. v. Andrew Ainsworth, HC060C03813, High Court of Justice, Chancery Division.

By Lupo at Commons:Deletion requests/Star Wars images

 Delete per reason given by Lupo at Commons:Deletion requests/Star Wars images. CoolButCute (talk) 00:14, 6 March 2009 (UTC)[reply]



  •  Keep mostly per Tryphon comment above. The case is not identical for all images listed; they should be considered seperately. They range from File:New York Pokemon D and P Launch Party 3.jpg, in which depiction of copyrighted characters seems the whole point of the image (and for which I'd probably vote to delete if it were listed individually), to File:X-Files Dana Scully Cosplay.jpg, which is a person basically dressed in street clothes, with general style, hairdo, and pose intended to recall a tv character but as far as I can see not actually including anything that might be a copyright violation. -- Infrogmation (talk) 19:22, 7 March 2009 (UTC)[reply]

Previous comments to File:Burning_Man_2007_-_178.jpg individually

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This image was tagged as copyvio by AnimeFan with the following rationale: Derivative work: The Fifth Element cosplayer.
In my opinion, it should be  kept as it is a simple costume worn by someone, not a screenshot of the movie. Tryphon (talk) 14:02, 3 March 2009 (UTC)[reply]

 Keep As has been discussed extensively in past deletion discussions here, under U.S. copyright law clothing and costumes actually being worn by people are generally considered predominantly "functional" or "utilitarian" in character, so that photographs of clothing and costumes being worn by people are not usually copyright violations. AnonMoos (talk) 15:44, 3 March 2009 (UTC)[reply]
 Delete Derivative works are not allowed. Let's think about an extremely easy Derivative work, like Darth Vader. US law does not mean anything since there are several Wikimedia servers outside the US. AnimeFan (talk) 03:51, 4 March 2009 (UTC)[reply]
Too bad that Commons:Licensing says differently. Since this photograph was taken in the U.S., in fact no other law than U.S. law is relevant. AnonMoos (talk) 15:04, 4 March 2009 (UTC)[reply]
To bad Commons:Licensing does not accept fair use. AnimeFan (talk) 17:53, 4 March 2009 (UTC)[reply]
Unfortunately for you, I said absolutely nothing whatsoever about fair use -- only about the extent of copyrights under U.S. law. AnonMoos (talk) 23:21, 4 March 2009 (UTC)[reply]
  •  Delete This seems to be missing the point. The uploader is not the photographer. The photographer (Ruthless Logic) clearly has copyright in the photograph and there is no evidence that he/she has given any permission. --MichaelMaggs (talk) 18:12, 14 May 2009 (UTC)[reply]
    • I don't get it, the license on flickr is clearly cc-by. Or are you saying it's a case of flicrwashing? (but in that case Ruthless Logic would have no copyright in the photograph). –Tryphon☂ 19:17, 14 May 2009 (UTC)[reply]

Comments about File:Gen Con Indy 2008 - The Defuser.JPG

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I am still waiting for somebody to explain to me how this is a copyvio? --Piotr Konieczny aka Prokonsul Piotrus Talk 05:58, 5 March 2009 (UTC)[reply]

Comments from Mike Godwin

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I mailed Mike Godwin to ask his opinion - he's quite busy so his reply was brief but here it is:

Suppose someone dresses up as, say, Spider-Man, and has a photo taken. The photo is neither a copyright violation nor a trademark violation.

I think you can believe me since this is quite opposite to what I've been arguing. :-P It's also very much in line with his prior comments on the Star Wars images (which were deleted anyway as the photographers didn't give permission). I think by this standard, most of these images are Keeps. Dcoetzee (talk) 10:05, 5 March 2009 (UTC)[reply]

  • So the statement is clear. What is sad that because of some users over caution many pictures upload by me and not only by me were vaneshed... Many my work were ruined and my time was wasted. Allways it is easy destroy sth then to build. It is not a god encurading to do something else here. Regardes especially to these "over cautiouses" people... Electron <Talk?> 11:22, 5 March 2009 (UTC)[reply]
    Well, what exactly were we meant to do? We aren't legal experts, we do the best we can. Images can always be undeleted, and frankly it's better to lose some images than have wikimedia be sued. I believe this is covered at COM:PRP or something. -mattbuck (Talk) 12:10, 5 March 2009 (UTC)[reply]
    Sure. It is not yours pain... All good people had good intentions. BTW. Here in Poland (were I live) we have the saying: "The hell is paved with good intentions"...
    How do you imagine yourselfe very high banch of photos with cosplayers (I even don't remember how many their were) that were deleted in the past to be undeleted because some people accused their of being copy violation? Maybe you have a such good memory but I don't... I haven't any tools to see in all my deleted images. Regards Electron <Talk?> 14:49, 5 March 2009 (UTC)[reply]
    Admins do. I can give you a complete list of yours if you want, and depending on the outcome of this DR I will undelete those which you say are cosplay ones. -mattbuck (Talk) 14:55, 5 March 2009 (UTC)[reply]
    OK. If you can and there is a possibility to look in "my lost" pictures... I am interested in the subject. But we should wait to finish this debate - I think. Regards Electron <Talk?> 10:13, 6 March 2009 (UTC)[reply]

It would be good if other lawyers could give their opinions here too. Mizunoryu 大熊猫❤小熊猫 (talk) 15:56, 5 March 2009 (UTC)[reply]

        • Tryphon, if you check the National vs. Fawcett case, you will notice that copyrighted works "inspired" in others are also subject to the posibility of being copyright violations. Most of the things said about costumes not being copyright violations could be also said about Captain Marvel not being a copyright violation of Superman; and yet it finally was. Belgrano (talk) 11:12, 6 March 2009 (UTC)[reply]
Yes, but the central argument about costumes is that they are utilitarian, and that case doesn't say anything about that. It's really very specific to the situation of a comic book character being a copyright violation because it's essentially the same design with the same super-powers as another comic book character. --Tryphon (talk) 11:23, 6 March 2009 (UTC)[reply]
  • There's a question here that I had not considered earlier: Mike said in his example that it would not be a copyright, but he wasn't clear on the reason why. I don't think any of us are arguing these images are copyright violations, only that some of them are only usable under fair use and so unsuitable for Commons. I will seek clarification. Dcoetzee (talk) 03:00, 7 March 2009 (UTC)[reply]
    • I asked Mike: "I wanted to ask for a slight clarification: in your hypothetical scenario, is the Spider-Man photo only usable under fair use, or is it usable without resorting to fair use?" Mike responded: "It's useable without resort to fair-use analysis." Dcoetzee (talk) 04:19, 7 March 2009 (UTC)[reply]
  • Re: "star wars images were deleted because photographers didn't give permission": some of my star wars images here (of people in costumes) were deleted, and I certainly gave permission. Further - and this applies to images here and the SWs one - almost all of my images are taken after the subject is asked to give permission to a photo; further, I tell the subject that the photo is intended for Wikipedia Commons and will be released under a free license (prior to taking the photo).--Piotr Konieczny aka Prokonsul Piotrus Talk 18:25, 8 March 2009 (UTC)[reply]

Comic book

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If we make a comic book with these photos (derivative work of these photos) and use the actual name of the characters. Is it possible that some company is going to sue us? Well, we can use Jack Sparrow and The Defuser. Just put some balloons and voilá. AnimeFan (talk) 03:32, 6 March 2009 (UTC)[reply]

I'm not sure what you're talking about; an album of photographs of Cosplayers by definition would not be a "comic book". AnonMoos (talk) 11:52, 6 March 2009 (UTC)[reply]

Previous comments from Commons:Deletion requests/File:AN Liana K 1.jpg individually

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Derivative work: woman dressed like the unfree Power Girl fictional character -- User:Belgrano

A moment ago, I requested an OTRS ticket check (Commons_talk:OTRS#Power_Girl_ticket_File:AN_Liana_K_1.jpg_.3F) --InfantGorilla (talk) 15:42, 28 January 2009 (UTC)[reply]
  •  Delete What is there to discuss? The fictional character Power Girl is copyrighted by DC Comics, and to make a costume similar to it is beyond doubt a Derivative Work. What can be said in contrary? People dressing like sitcom or soap opera characters may be ambiguous, but this woman is not dressed in a manner that may be conceived as common everyday clothing or similar. As for the OTRS, surely it says that the photographer licences his work or that the woman has no objection with it's use, but I can bet that there isn't anything said by the owners of the original copyright, wich is not bypassed by the made of a derivative work. By the way, if someone is not aware about that character and thinks this to be just a photo of a woman with big hooters, it's easy to investigate but you can see samples here and read the wikipedia article (short version for people that do not read comics: it's the cousin of Superman, with a twisted story) Belgrano (talk) 01:11, 18 January 2009 (UTC)[reply]
  •  Keep The character may be copyright but the performer is not. This is a picture of the performer. --Simonxag (talk) 12:40, 21 January 2009 (UTC)[reply]
  •  Delete The construction of the costume is Commons:Fan art and derivative work. There are many fair use images of Power Girl at http://en.wikipedia.org/wiki/Category:JSA_images --InfantGorilla (talk) 15:36, 28 January 2009 (UTC)[reply]
  • Speedy delete Derivative work of Power Girl. It's fair use like w:File:Power Girl.png. AnimeFan (talk) 05:06, 3 March 2009 (UTC)[reply]
  • Keep. This image is used in the w:Cosplay article to illustrate cosplay at conventions in North America. This image is not in the w:Power Girl article. It's a photo of Liana Kerzner in a costume, taken at Wizard World Chicago 2007 and uploaded to Flickr. Is the nominator suggesting that the costume is an unlicensed derivative work? Does that automatically mean that a photograph where the costume is visible is a derivative work? Why is the nominator focused on the clothing and not the tub of Dubble Bubble or the cover of Ed and Red's Comic Strip issue #2? I don't know of a policy against photos of people in costumes, like File:Tronguy.jpg, so I say keep. If this image is considered fair use, like w:File:Power Girl.png, then I suggest the image be copied over to Wikipedia. --Costumed Adventurer (talk) 21:20, 3 March 2009 (UTC)[reply]
  • Yes, it is an unlicenced derivative work, unless someone shows me the authorization by DC Comics for it. It doesn't really matter in wich article is it used, or even if it's used in any article at all. In a related issue, I don't know if that comic book mentioned made any copyright violation or not, I don't even know about it (my knowledge of comic books is minimal), but if that copyright violation took place outside of commons it's not at all our issue. By the way, I wouldn't advise to upload it to wikipedia under a fair use claim either: fair use isn't a wild card for anything copyrighted, and a good rationale must be provided to met the strict requirements. An impressive comic book cover that seems like a piece of art is one thing; a woman using a costume at a fan's convention is another Belgrano (talk) 21:52, 3 March 2009 (UTC)[reply]
    • Do you work for DC Comics? The cover of that comic book I mentioned is also in the image up for deletion. It's a photo in a public place. Your argument makes it seem like no photos of costumes are allowed, but it looks to me like they are allowed. Your argument makes it seem like no photos from any conventions are allowed, but it looks to me like they are allowed. Where does it say that photos of costumes are forbidden? If they're forbidden, then why is File:Tronguy.jpg still here? --Costumed Adventurer (talk) 23:07, 3 March 2009 (UTC)[reply]
  •  Delete - If the character is copyrighted, then if someone makes a costume of that character, it's a derivative work. Since the copyright terms are doubtless all rights reserved, that costume is a copyright violation. A photo of a copyright violation is still a copyright violation. -mattbuck (Talk) 00:25, 4 March 2009 (UTC)[reply]

Commons:Deletion requests/Image:Jack Sparrow & girlfriend.jpg

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Next disscusion... The problem is almost the same... Electron <Talk?> 07:48, 13 March 2009 (UTC)[reply]

Comment by Mike Godwin

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From an email to me. It's important enough to deserve its own section. --Piotr Konieczny aka Prokonsul Piotrus Talk 16:34, 13 March 2009 (UTC)[reply]

I do not see a legal justification for removing the images we are discussing here. It is common for photographers to take pictures of people in costumes of copyrighted and/or trademarked characters. In general, such photographs are understood as lawful.

I believe the deletion of the photographs you were talking about was unnecessary, and that this represents a too-conservative worldview with regard to the applicability of copyright and other intellectual property theory.

Feel free to reproduce this e-mail on-wiki.


--Mike Godwin General Counsel Wikimedia Foundation

I agree with this statement: avoid copyright paranoia. We want Commons to host free pictures, if the photographs are free, that's ok. →Diti the penguin — 01:15, 13 March 2009 (UTC)[reply]

Post-undeletion general discussion

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Following deletion, undeletion and Mike Godwin's comment (which I cite above) I suggest we move the general discussion to this section.--Piotr Konieczny aka Prokonsul Piotrus Talk 16:34, 13 March 2009 (UTC)[reply]

  •  Keep/Undelete Is my vote. I'm fairly sure Mike knows better than we do. If he says it is ok, that should be the end of it. He is the one that is going to receive the lawsuit if it should be an issue... and I doubt he's going to err on the side of getting the WMF sued. --ShakataGaNai ^_^ 16:55, 13 March 2009 (UTC)[reply]
  • I think we should focus less on a polarized schism and more on an effective compromise here. There are some images that many Commons contributors will find unacceptable derivative works for Commons' purposes, regardless of Mike's statement (Mike tends to be somewhat generous to images in that he's primarily interested in protecting the WMF, rather than commercial content reusers). I'm proposing a policy at Commons:Image_casebook#Costumes_and_cosplay and I'd be interested in additional feedback about whether it currently represents consensus and if not, what cases are okay and not okay. Dcoetzee (talk) 17:27, 13 March 2009 (UTC)[reply]
 Undelete. And I'm personally against the current text. Those “many Commons contributors” are still not lawyers. Commercial content reusers are either informed by Commons:General disclaimer and by some templates like {{Copydesign}} (“the photographer releases the rights on this image to the maximum extent possible” would be an example). →Diti the penguin — 17:50, 13 March 2009 (UTC)[reply]
I'm really on the fence - I would be happy to see a liberal attitude like Mike's adopted, provided a suitable warning tag is applied to these articles ("contains a representation of a copyrighted character design, use in commercial contexts with discretion"). I'm just trying to interpret the attitudes of people who want to see some of these images deleted, and to settle on a compromise that will allow some of the most egregious cases to be deleted while allowing other cases to be retained. Dcoetzee (talk) 22:26, 13 March 2009 (UTC)[reply]
Oh I can sympathize with that. I have a pair of image which are in this piles, one of which (File:Liana K at 2008 ComicCon cropped.jpg) is being used to illustrate an article on en (en:Liana K). Unfortunately, the alternate images we have of her - see Category:Liana K - are also in the same category of being cosplay images of her as Power Girl and are worse to boot (she's a natural redhead). Tabercil (talk) 22:48, 13 March 2009 (UTC)[reply]
 Keep HyperBroad™ 23:00, 14 March 2009 (UTC)[reply]

 Undelete If the wikimedia's lawyer who is the interested part is saying there is no copyright or trademarked infringiment abou costumes I don't know why we should delete these images. And we must review the Star Wars ones too. Mizunoryu 大熊猫❤小熊猫 (talk) 00:36, 16 March 2009 (UTC)[reply]

I agree that the current wording of Commons:Fan art is legally wrong. I am working on a completely new text for that page now; give me a few days to finish it and I will put it up for discussion. I haven't started on cosplay yet, though. That should be next. --MichaelMaggs (talk) 21:06, 17 March 2009 (UTC)[reply]
This is now online. Please help improve the wording. It's at Commons:Fan art/Proposal. --MichaelMaggs (talk) 19:21, 18 March 2009 (UTC)[reply]
  • More details from Mike would be appreciated. From what he says, it seems that the use of photographs would be restricted to illustrate the person, or gathering, or act of cosplaying, and could not be used to illustrate the character being imitated. If so, then the image is restricted and probably falls outside the scope of the commons. It may be legal to share the image, but the use of the image is restricted as the copyright of the character in it belongs to the copyright owner. --Odie5533 (talk) 20:32, 21 March 2009 (UTC)[reply]

I'd like to know from him more about fan arts too. It it's acceptable or not under what kind of use. Actually if we have access to some law articles about this would be easier for us to create some policy. Mizunoryu 大熊猫❤小熊猫 (talk) 02:17, 22 March 2009 (UTC)[reply]

Did Mike said something like that? Belgrano (talk) 03:54, 22 March 2009 (UTC)[reply]
  • So, to the keepers, does this mean that a picture of a person who looks like Johnny Depp and is dressed in the exact Jack Sparrow suit could potentially be used in the Jack Sparrow Wikipedia article? What else use would there be for such an image? Seems like a copyright violation, not different from someone in a Garfield suit. FunkMonk (talk) 16:04, 26 March 2009 (UTC)[reply]

The only pages it can be legally used on, ones which are not to depict the character but to depict people cosplaying. It's a copyvio waiting to happen, especially with the number offered. --Odie5533 (talk) 05:31, 28 March 2009 (UTC) Well, it's already happened:[reply]

Fine uses:

  • w:en:Liana K
  •  Delete then. If the use of these images is restricted to specific articles due to copyright issues, as even the editors who voted keep acknowledge, then the images don't belong on Commons, but as fair use images on Wikpedia. One of the criteria for a file to be valid for Commons is that it should be free to use for anything. If an image of a guy dressed as one of these characters can't be used in the article about these characters due to copyright issues, then they're not free. FunkMonk (talk) 10:53, 28 March 2009 (UTC)[reply]
    • No, Odie5533's assumption is wrong; these images can be used for anything. Saying we cannot use them to illustrate the depicted characters is indeed assuming we are trying to keep the images under the fair use exception, but that's not the case. We are simply saying that clothing is not eligible for copyright, so a picture of someone in a costume can be completely copyright-free. –Tryphon☂ 12:28, 28 March 2009 (UTC)[reply]
      • But these clothes are unique and inherent to a particular character, they are not just any generic, interchangeable clothes, they are part of a copyrighted character design. But a distinction should be made between costumes based on live action characters and cartoon characters. In the case of the cartoon character, the design/likeness is entirely copyrighted (such as Spiderman). It gets more tricky with the live action characters, but I believe the costumes based on cartoon characters should definitely be deleted. Maybe freedom of panorama or the lack of it would even have a role to play here. FunkMonk (talk) 12:46, 28 March 2009 (UTC)[reply]
        • No, I think you're missing the point (FOP wouldn't help anyway, because I doubt anyone is permanently installed in a public space, and a person is not a work of art). The short answer, from Mike Godwin: Suppose someone dresses up as, say, Spider-Man, and has a photo taken. The photo is neither a copyright violation nor a trademark violation. More arguments can be found in the discussion above, mainly based on the fact that clothes are utilitarian (the overall design of clothing is dictated by its function, and cannot be separated from this function). Saying that non-generic clothes are subject to copyright is wrong, it would mean that pictures of people wearing designer clothes would be copyright violations. Also, according to COM:DM: Instead of copyright protection, utilitarian objects are generally protected by design patents, which, depending on jurisdiction, may limit commercial use of depictions. However, patents and copyright are separate areas of law, and works uploaded to Commons are only required to be free with respect to copyright. So yes, the design of the clothes can be protected, but that doesn't affect the copyright of the picture. –Tryphon☂ 13:15, 28 March 2009 (UTC)[reply]
          • But these particular costume designs are not mere clothes, they have been designed specifically to represent a certain fictional character, and are only part of this character's design. The cos-play suits are no different from a Garfield or Mickey Mouse suit, their sole purpose is to mimick this character, not to be everyday clothes. FunkMonk (talk) 15:00, 28 March 2009 (UTC)[reply]
            • I invite you to read again what Mike Godwin said before about intellectual rights. The view you're expressing, is the one we've worked with the last few years, yet it has been commented by Mike. Understand that whatever the copyright status of the costume, the photos themselves are free, and Mike meant (from what I understand) that considering them as copyright violations/derivative work is a too conservative view. →Diti the penguin — 19:52, 28 March 2009 (UTC)[reply]
                • Sounds kind of like a self-contradiction, if what the pictures contain is un-free. Does it matter what we think is a conservative view or not if it does breaks the law? Could we use a picture of a guy in a Mickey Mouse costume freely in the Mickey Mouse article? FunkMonk (talk) 20:13, 28 March 2009 (UTC)[reply]
  • I understand that the problem here is that the images may be free (I still don't think they are, but I'm not going to discuss Godwin), but even so shouldn't be used to ilustrate articles about the fictional characters because that would have a lot of flaws regarding to accuracy, project's image, and such... but in the end, that would be only an editorial rationale. Legally, we wouldn't have any problem using those guys to ilustrate the articles of the characters, such as we wouldn't have if we wanted to ilustrate Mickey Mouse with a mouse from the sewers, or Homer Simpson with a random fat guy watching TV in his couch.
However, if my understanding is correct, then the issue can be moved to the project scope: can we consider those photos of costumed people to have a realistic educative purpose? The argument of being useful for the Cosplay article may not be enough for all: besides some general cosplay images to begin with, other images about cosplay should add something educative distinctive or unique from the others. Can we consider the issue of wich character is being cosplayed to be a good point to mark an educative uniqueness? Belgrano (talk) 20:37, 28 March 2009 (UTC)[reply]
    • It would not be the photographer's fault. You are allowed to take pics of your kids in costumes. There are two copyrights, one of the character and the other of the photograph. You are allowed to release the photo under any license you want. But you can't use the photo as a means of circumventing Disney's copyright on the Mickey Mouse character e.g by using the picture to demonstrate what mickey mouse looks like in a manner other than fair use. For instance, I can't take a picture of a kid in a Halo 3 t-shirt and then use it as a Halo 3 logo on the Halo 3 page and pretend the thing is public domain. You need a reason for fair use of that logo to demonstrate the logo. The photos themselves are all released under cc-by-sa or whatever, but their use is restricted. It is for this reason I feel they are not needed here. As Godwin said, and I believe he chose his words carefully, "The photo is neither a copyright violation nor a trademark violation." The photo is allowed to be taken and does not violate copyrights. But using it and pretending the entire thing is public domain does. --Odie5533 (talk) 21:03, 28 March 2009 (UTC)[reply]
      • Oh, I see, that's a good analysis I guess. Well, Commons is a media repository for free multimedia files, intended to be used by anyone, for any purpose. What does “for any purpose” mean? Well, it doesn't mean the files must be usable in any situation for being hosted here; it means that Commons is a repository for files that are not only reserved to Wikipedia but—for example—prints, and that are not always usable in any situation. Look at the {{FoP-France}}, {{Copydesign}}, {{Personality rights}}, templates: they are precisely here to tell a potential reuser “okay, this photo is free, however maybe your local Wikipedia/your country/whatever doesn't enable you to reuse it”. I think creating a template for costumed people can fix that. →Diti the penguin — 21:38, 28 March 2009 (UTC)[reply]
        • If Godwin says a file is not a copyright violation nor a trademark violation and free to use without fair-use arguments, then he is saying that such file is free for any purpose, under any circumstances, unless we deal with non-copyright restrictions (including perhaps our own internal rationale of wich images use or not use to ilustrate articles). He knows what commons is about, and he wouldn't tell a file is OK if it really wasn't. However, there's a mistake in Odie5533's reasoning: there are indeed 2 copyrights involved, the one of the image itself and the one of the photographer; but the original copyright is not superseed by the new photographer's copyright. If an image is copyrighted (such as an advertisment in the street) a photo of it is a copyright violation; that's out of the question. When Godwin says that those images are free, he's not saying that they are free unless we intend to use them as replacements of the original copyrighted work: he is saying that the costume itself does not attract any copyright derived from the comic characters, and so a photo of an object inelgible for copyright can be licenced by the photographer as desired. Belgrano (talk) 01:51, 29 March 2009 (UTC)[reply]
          • "If Godwin says a file is not a copyright violation nor a trademark violation and free to use without fair-use arguments, then he is saying that such file is free for any purpose," but that's not what he said, you added to his quote. You are basing your argument on what you want him to have said, not what he did say. --Odie5533 (talk) 03:33, 29 March 2009 (UTC)[reply]
            • Well, with so short and unexplained statements, it's unavoidable that either way we have to "guess" the logic behind his reasoning. Well, there's a difference between free images hosted on Commons and images hosted somewhere else as fair use. Free images, if are indeed free, may be used anywhere, even at a blog. Fair use images can't be used that way: each specific use must provide a rationale. Why? Because the image isn't free. The user must prove that the use is "fair", or otherwise it be a simple copyright violation. I trust that I learned that part well, and that Godwin is completely aware of the diference. Based on those 2 asumptions, my point is that an interpretation of Godwin's short statements in the direction of "it's free if we use it at X contexts, but not at Y others" may be incorrect because those concerns belong to fair use usage, not to free media usage.
And no, that's not what I would have liked to hear. I thought that costumes are simple derivative works and as such copyright violations in the case of Power Girl, Catwoman, Spider-Man and other fictional characters. I still think that, because so far I haven't heard an explanation I deem strong enough to change my mind. However, I wouldn't be so arrogant as to think myself in condition to discuss with Mike Godwin. If he says those images are free to use, then they are free to use. If for whatever reason he doesn't provide a strong explanation but just the statement, then we have to find such explanation ourselves, in a manner that does not contradict his statement but neither the main project policies. Belgrano (talk) 14:58, 29 March 2009 (UTC)[reply]
  • (Trying to reach a consensus) So, I proposed above to create a {{Copydesign}}-like template based on Mike's statement, a template including a text like “The photographer releases the rights of this image to the maximum extent possible. […] Before using this content, please ensure that you have the right to use it under the laws which apply in the circumstances of your intended use” (see {{Personality rights}}); it doesn't contradict Mike's statement, and it allows Commons to host photos of costumed people (because we now know the photographs are considered as free). Are you ok with the creation of such a template, then closing this deletion request as a  keep as soon as every file is tagged with, let's say, {{Costume}}? →Diti the penguin — 19:47, 29 March 2009 (UTC)[reply]
    • I think it is a resonable proposal. Electron <Talk?> 07:12, 30 March 2009 (UTC)[reply]
      • Your proposed text started out good, but ended by saying absolutely nothing: "make sure you don't break the law or you'll be breaking the law". I still don't think we should be hosting these images, they just aren't worth the trouble since they are so liable to copyright infringement. A lot of (most?) of these images really should just be uploaded to the individual projects and not hosted on the Commons. Perhaps a move to wikipedia template instead? --Odie5533 (talk) 03:45, 1 April 2009 (UTC)[reply]
        • As you can observe my point of view is different from yours. In my opinion what is not forbiden it is alowed. It is a basic role of the state of law. We shouldn't worry prematurely that we brake a law if there is no such law...Electron <Talk?> 10:08, 1 April 2009 (UTC)[reply]
        • If my proposal says “absolutely nothing”, does it mean, insofar as the text on {{Personality rights}} is quite the same, we should move all photographs of identifiable people onto local projects? Electron's statement is right: we have the confirmation the files can be hosted on Commons, but it's up to the reuser to acknowledge the law (if you want an example: commercial use of pictures of identifiable people without consent is forbidden in France and many other countries as well; however, when such photos have a free license, Commons is able to host them; if some restrictions apply—that's the case—, the {{Personality rights}} and {{Fan art}} are there to inform the reusers). I don't think there is a problem. →Diti the penguin — 12:27, 1 April 2009 (UTC)[reply]
          • ✓ Done, please look at {{Costume}} and tell me if I can now tag the images with it (and don't hesitate to make changes). I guess it's not perfect, I preferred to spend time on websites about copyright, publishing and model release (my conclusion is that no matter the case, and as stated on Commons:Reusing content outside Wikimedia, it will always be the publisher's job to double-check everything is ok before reusing the content; it's written everywhere), rather than concentrating on this text. So I'd like to know. →Diti the penguin — 15:40, 1 April 2009 (UTC)[reply]
            • Thanks for a good work. For me looks not bad... Of course it can be improved in the future. If there is no objection I think that we should end the discussion and start to use it. Electron <Talk?> 08:18, 2 April 2009 (UTC)[reply]
            • Compared to {{Personality rights}}, I think this important part is missing: independent from their copyright status. We should make it clear that the restrictions that might apply in individual jurisdictions have nothing to do with copyright, otherwise people might think that it is a fair use rationale in disguise (!). –Tryphon☂ 12:54, 2 April 2009 (UTC)[reply]
              • I'm having a doubt here, so, just to make sure before applying the changes: how do we know restrictions which apply are independent from the photos' copyright status? →Diti the penguin — 17:41, 3 April 2009 (UTC)[reply]
                • That's what Mike's statement was all about. If there was any copyright restrictions regarding this kind of pictures, it wouldn't be okay for us to keep'em on Commons under a free license. The possible restrictions would be "design patents, which, depending on jurisdiction, may limit commercial use of depictions; however, patents and copyright are separate areas of law" (to quote from COM:DW). –Tryphon☂ 18:19, 3 April 2009 (UTC)[reply]
              • ✓ Done for English and French templates. Do you have any objection to me tagging every image with this template now, so those deletion requests can be closed (and some images, undeleted)? →Diti the penguin — 21:38, 11 April 2009 (UTC)[reply]
                • My only objection is that the text is extremely vague. Perhaps at least point the reader to what you are referring to when mentioning legal constraints? The template reads as a tautology. --Odie5533 (talk) 14:12, 12 April 2009 (UTC)[reply]
                  • It is vague, but only because there are so many different legislation that it's impossible to give a general guideline. I think it's fine for now, and it can be improved over time. In particular, I think MichaelMaggs is working on a policy about costumes (just like he did for fan art) that we should link to as soon as it's ready. –Tryphon☂ 14:43, 12 April 2009 (UTC)[reply]
                    • Vague is even an understatement. The text doesn't even point the reader in the right direction. Unless you knew it was referring to possibly copyright held on the costume, the text is meaningless. --Odie5533 (talk) 19:27, 12 April 2009 (UTC)[reply]

↵ Maybe we should say "The use of images depicting people in costumes impersonating characters whose design is protected may be subject to legal constraints, depending on jurisdiction and independent from the copyright status of the picture." I clarifies the kind of pictures this template applies to. Do have another idea about a better wording? Or maybe a link we could point users to? We should at least link to COM:DW somewhere for now, and when MichaelMaggs is done with the costume policy, we can change it to something more specific. Also, I suggest taking this discussion to Template talk:Costume, so that people trying to improve the template later on can find it easily. –Tryphon☂ 19:50, 12 April 2009 (UTC)[reply]

http://www.wipo.int/export/sites/www/copyright/en/activities/pdf/wo_inf_108.pdf Maybe that can help. →Diti the penguin — 15:36, 13 April 2009 (UTC)[reply]
Personally I would say the better and more recognisable the costume the greater the arguement for deletion. Otherwise it would just be people dressing up.KTo288 (talk) 22:28, 10 May 2009 (UTC)[reply]

Kept. Costumes are not copyrighted, as per Mike Godwin's comments. Yann (talk) 19:40, 23 May 2009 (UTC)[reply]

Actually, they are, but Mike Godwin said there is no need to consider such photos of costume as “unwanted derivative works”, insofar as “this represents a too-conservative worldview with regard to the applicability of copyright”. →Diti the penguin — 23:26, 23 May 2009 (UTC)[reply]
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