User talk:Mdd/Archive (3)
On the copyright status of the works of On Kawara (moved here from Category talk:On Kawara)
[edit]- The following section is copy/pasted from here and will be rearranged first before some further comment will be given (Mdd (talk) 18:14, 19 February 2024 (UTC))
For here and now I am not going to talk about Loesje anymore, but I would like to say a few words about the works of On Kawara, his work and it's copyright status. First some personal references. I am familiar with his work since the early 1990s and saw a larger exhibition of his work in Rotterdam in Museum Boymans in december 1991 (source [1]) when I was studying at the Academy of Art that year. Earlier that year I had received my Engineering Degree (M.A.) at the TU Delft in a Control Theory and Business Administration direction which had offered a course on Law as well. Later early 2000s I self-studied the institute of law and the whole of Ducth law book for multiliple months. By the end of the 1990s I had also taken two longer Art philosophy courses with a group of Rotterdam artists under Antoon Van den Braembussche at the Centre of Philosophy of the Erasmus University (of which I made some graphics see here).
Here on Commons, Wikipedia and Wikiquote over 15 years I have been involved in many copyright disputes with related to all kinds of articles and sections of the Dutch copyright Act. In this particular case however I think it relates to the basics. the first article of the Dutch copy-right act in the Netherlands that reads:
- Het auteursrecht is het uitsluitend recht van den maker van een werk van letterkunde, wetenschap of kunst, of van diens rechtverkrijgenden, om dit openbaar te maken en te verveelvoudigen, behoudens de beperkingen, bij de wet gesteld.
- Translation: Copyright is the exclusive right of the creator of a literary, scientific or artistic work, or of his successors in title, to make it public and to reproduce it, subject to the limitations, at the legislated.
Now as Roberta Smith in the NYT, July 15, 2014 said: "On Kawara, a Conceptual artist who devoted his career to recording the passage of time as factually and self-effacingly as art would allow, died in late June in New York City, where he had worked for 50 years..." (source)
According to Dutch law On Kawara was an artist, who as any artist made works of art that automatically fall under copyright because On Kawara made them. In the Europe it works the same, and in the rest of the world also. Now I am aware that this a s sort of circular reasoning, but that according to me is how law can/should be applied. Now of course we can decide to not uphold the law, but that is no enduring policy. People can deny that On Kawara's work is art. People can argue that his works don't express the threshold of originality (as well). Then again we could/should go into determining what is art, what is threshold of originality, why does that apply to his work, what does his work actually do? Which will be a never ending story.
Earlier on I had stated that his works falls under copyright. In stating so I also made them on my own authority, yet having in mind I could bring up all of the things mentioned here and start from that. Now I have added these personal details here so that other people can put my words in some perspective as well, or get some background where I got my ideas. I am no lawyer myself. I used to think I knew little about this, and didn't understood how it works. All of my experiences here and now made me capable of connecting the dots here as I did. Again I could be mistaken, and I am open for arguments, and preferable real examples that share some more light on these basic matters of art & law. Thank you. -- Mdd (talk) 01:12, 19 February 2024 (UTC) / 08:37, 19 February 2024 (UTC)
Comment by Yann
[edit]Again you start with the premise that any art is automatically under a copyright, but this is not the case. Creative art is under a copyright. This may or may not be art, but it is obviously not under a copyright. Yann (talk) 14:43, 19 February 2024 (UTC)
- Thanks Yann, indeed this is my premises, yet I am struggling with that as well. So there is an element of struggling or uncertainty. Now first, I would like to illustrated this with a real example about the question if "any line" an artists draw falls under copyright. This example is It is about a Colombian artist (see image), which I met (in 1990) around the same time I saw that first work of On Kawara (1991). I will upload two more picture first to get the picture(s) and this story on one place. -- Mdd (talk) 15:51, 19 February 2024 (UTC)
Ok, done. This example is about the time I was observing artist's real close, not knowing I was destined to become one myself. Now to set the scenery in the North of Portugal a Danish student, a German art-student and Jorge Calero (first image first three from left to right) around the campfire early evening. The next day we sat at the coffee-table of a local bar, were the German art-student was drawing in her dummy. I guess after Jorge spoiled some coffee, in some split seconds he took that coffee and started drawing the German artist as you can see only using his one finger. In those split seconds I was playing with my Canon camera noticing that scene. I took a photograph of Jorge drawing [2], the subject he had drawn [3] and his final drawing [4]. Now I cannot have been more then a few minutes all together, now 32.5 years ago:
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[1]
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[2]
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[3]
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[4]
Now I brought this up just to illustrated that I have been struggling for some time, if I could share one or more of these pictures here. It is clear to me that the forth image [4] is under copyright with he even signed... But I am struggling about the second image [2]: does this fall under copyright as well. There are just a few lines there, and only if you see the result, you can make it out. If I would have taken this picture earlier noting would have been seen. Now in my perception there can be such moments of uncertainty, where the situation remains questionable.
Now Yann brought up that "Creative art is under a copyright," suggesting we could make a division between creative and not creative art. This questionable. This example can also remained us that there is always a creator, which can be an art student, a young professional artist or an engineering student. If I am not mistaken in the picture [2] in the left side corner in the bottum there was also some drawing by me, which doesn't look like much. A bee of a bug maybe? I would not claim copyright on that part myself. Now by to the signature on the right bottom corner, Jorge did, or maybe I even asked him to sign it, before I took the photo. But there he did claimed the drawing.
For me this was an experience once in a lifetime, an unique experience. And that is an important aspect of art, that it is one of a kind. Original. Back to Yann's statement. I can agree with that "Unique works of art are under copyright". And that "all finished works of professional artists are under copyright". -- Mdd (talk) 17:01, 19 February 2024 (UTC)
Comments by D. Benjamin Miller
[edit]Comment to Mdd (Overleg) 01.12, 19 February 2024 (UTC)
[edit]- The main point is that copyright is not about what is artistic, but what is copyrightable. Many things that are not artistic in any way are nevertheless legally works of authorship subject to copyright, and a some things that are considered artistic are nevertheless not copyrightable works of authorship.
- "Art" is a really broad word, and can be used in many ways. In particular, performance art and conceptual art often don't involve the creation of a work of authorship. For example, you mentioned the Berlin Wall earlier, and how posting something there may be considered a form of performance art under some circumstances. However, copyright law doesn't cover the notion of doing or posting something at the Berlin Wall.
- It is not really necessary (as far as copyright goes) to argue about whether or not On Kawara was an artist, or whether or not his writing down of dates was a form of art. Copyright protects works without regard for whether or not they are considered artistic by their creator (or anyone else), and without regard for whether or not the creator claimed to be an artist or was considered to be one without someone else.
- The test for copyrightability you've proposed here isn't really based on circular logic. It has a fundamental principle: identification. Essentially, if someone identifies something as art, it is copyrightable (which leads, naturally, to debates about what is and isn't artistic, as you say). There are jsshes with this test. But in any case, it is not the legal test in effect anywhere.
- The deal test is whether or not a work has the elements which make it a sufficiently original work of authorship (that is, above the threshold of originality). The exact terms used for this vary, as do the properties such a work must have, depending on the law of each country. But the legal test, it must be said, relies in no way on whether or not someone (including the creator) views something as artistic, but instead on the content itself and whether or not it contains a non-trivial element of original human authorship.
- Of course, determining whether or not this is the case is not always entirely straightforward. We can compare things with examples we find in legal precedents.
- But for example, On Kawara writing a plain date is definitely not a copyrightable work of authorship, because the painting does not include any creative element of original authorship (nobody owns the date). Part of conceptual art can be rejecting the elements of creation found in conventional artworks. But not creating things is — whatever commentarial value it may have — is not a form of creative authorship. If it were, then anyone could claim to be an artist who makes minimal art and lay claim to exclusive ownership of basic geometrical forms, writing the date, etc. D. Benjamin Miller (talk) 17:03, 19 February 2024 (UTC)
Thx, I am still not sure why you brought all those things up, double crossing the discussion with Yann at hand. The main topic here seem to be "the copyright on On Kawara". You seem to be arguing from the copyright law towards the work. Like your second comment about "de minimis" your argumentation here is about "the basics of copyright". Now this is also interesting, the way you started out.
First you seem to disagree with the main topic I choose to begin with and the focus I had. "The main point is that copyright is..." Now as I said, the main point is that we need to discuss directly the copyright on On Kawara. I admitt I took a d-tour to start with in my second comment, but at least I admitted that in front.
Now next the whole of your first statement:
- The main point is that copyright is not about what is artistic, but what is copyrightable. Many things that are not artistic in any way are nevertheless legally works of authorship subject to copyright, and a some things that are considered artistic are nevertheless not copyrightable works of authorship...
Now as this statement concerns I tend to disagree, or at least in the Netherlands. In the Netherlands the copyright law starts with the maker, the maker of a work of literature, science and (visual) art. Now I must be frank, I do not know how the American copyright law starts. I have heard that the are two approaches to copyrightlaw: the central European approach and the Anglo-Saxon American approach. The first stipulates or centers around the protecting, the other is around the commercial exploitation.
Now if we want to come to some sort of agreement, we should realize first we approach the things from different angles. This is a thing I have to take in account myself, which I might have overseen so far. This was the first part. -- Mdd (talk) 19:31, 19 February 2024 (UTC)
- The second part is about the mantra you are repeating On Kawara writing a plain date is definitely not a copyrightable work. Now I know this is just an opinion of a young man three years out of college. I could ask again, where is your prove? This cannot be the previous argument, in which you started disagreeing with main topic at hand.
- Proof can come from fair analogies. From examples. From opinions of experts. From the presence of copies of the art works of On Kawara being sold without his permission...
- I happen to read a new item a week ago or so, that an artist went to court because some gift shops in Amsterdam continued to sell his work without his permission for a lot of money, yet giving the impression that he actually was part of it.
- These are things that could change my mind..!? If at least that counts for something. But for the record. I am also trying to improve your performance. As you know I am an old man, and you have the future. One of the challenging things about that is, that you have a lot to improve. -- Mdd (talk) 19:44, 19 February 2024 (UTC)
Comment to Mdd (Overleg) 15,51, 19 February 2024 (UTC)
[edit]
- Well, de minimis is a different principle.
- The basic idea there is that incidental copying, especially if that copying is not of much of the work, is OK (with a few different potential legal-theoretical justifications). Here, the photo is clearly of Calero, not a copy of his work overall, even though some of his work is visible in part. Since the artwork is particularly obstructed, not in focus and not the central part of the image, it is probably not an issue. The painting in question is still subject to copyright, but the way in which it is present is minimal enough that it is negligible. D. Benjamin Miller (talk) 16:43, 19 February 2024 (UTC)
Thx, I like this line of arguing a lot, and to explain I have copy/pasted the image and subscript here as well. This is indeed a matter of de minimis as I mentioned in the subscript of the image. You mention four/five elements:
- The incidental element of the work
- The main topic being the artist and not the art work(s)
- Not a plain copy of the whole work resulting in the artwork being particularly obstructed
- The art works not being in focus... or even unfocused (my words)
- The painting in question is still subject to copyright... well there are actually two, one in front and one in the back (my words)
Now I stipulate all of those things, not because of its important here on the On Kawara topic. However, I know of at least three deletion debates, that these things did not come up.... and I "lost" the image and argument. In those cases four out of five conditions occurred. Then there is the possibility to trim down the image, so that all five conditions are more or less present.
If it was up to me, this line arguing can and such an adjustment can turn into an standard "positive" right. There are tons of images, see for example Artist with artwork in the Netherlands where this can be applied: reassessed one by one and turned into some standard what is allowed here and not. However I must say, there also be taken into account here, that for example in the Netherlanss more specific condition counts: the polder model. -- Mdd (talk) 19:03, 19 February 2024 (UTC)
Comment to Mdd (Overleg) 17.01, 19 February 2024 (UTC)
[edit]- Legally, copyrighted works are not required to necessarily be particularly unique (although pure copies cannot be copyrightable). For example, under US law (and the law of at least some other countries), if two people write the same poem entirely independently, then they both hold a copyright to two legally distinct poems (even if the words are the exact same). Of course, this sort of identical independent creation is incredibly rare. There must be the ability for the artist to make some kind of choice which is manifested in the result, but it is more complicated than that.
- As your last point: whether or not someone is a professional artist definitely does not matter under any circumstances at all. The works of amateurs and professionals are treated exactly the same under the law with respect to copyrightability. The macaroni art of a kindergartner is exactly the same, legally, as the work of a professional painter. The only relevant fact is that both authors are humans.
- As for these photos, [4] is definitely a reproduction of a copyrighted work, fully subject to copyright, and must be speedily deleted, unless you have permission from the artist to release his work under a free license. [2] is less of a straightforward reproduction, but the work is still too central and the same probably goes for it (permission is likely required, unless the art is blurred out/removed). Photos [1] and [3] are both perfectly fine. D. Benjamin Miller (talk) 17:12, 19 February 2024 (UTC)
- Also, it doesn't matter whether or not a work of art is finished per se; it matters whether or not the work present in the copy is enough to qualify as a work on its own. Many works of art are never finished by their authors, but nevertheless have enough content such that the unfinished portion is legally copyrighted.
- The test here (in the EU) is actually the exact same one given in Infopaq. Take, for example, a novel with 100,000 words: that's a copyrightable work. The first word by itself is not. Nor are the first two by themselves. At some point, there will be enough authorship to constitute a copyrighted work. The first 500 words of the novel are virtually certainly enough to constitute a work, and are thus protected by copyright, even though that would only be 0.5% of the full novel. Similarly, an incomplete artwork is subject to copyright if the portion in question has enough original authorship to be a work by itself. The first stroke in a painting, like the first word, is not copyrightable, but at some point, even an incomplete painting becomes a work.
- The amount of the total work used can be a component of a fair-use analysis, but that's a different subject. D. Benjamin Miller (talk) 17:39, 19 February 2024 (UTC)
Are you going to Rev Del the original upload?
[edit]Here: File:Jos Beekman, redacteur Donald Duck, Amsterdam, okt. 1997 - 16.jpg
See: COM:REV DEL Thanks, -- Ooligan (talk) 21:23, 3 January 2024 (UTC)
Re: Loesje, On Kawara, and the limits of copyrightability
[edit]I just wanted to jump in to add my two cents as you develop what you called your "vision" on how Commons can or should interact with works claimed to be copyrighted. I'm sure you know much of this already, but the issues you're diving into are near and dear to me as well, and I fully understand how you've arrived at your conclusions/ideas, because that's where I arrived once too, so I wanted to offer my perspective.
I fully appreciate where it seems you're coming from, in the sense that I deeply respect artists, in particular conceptual artists, whose work I've learned a great deal from and love dearly: Félix González-Torres, Hans Haacke, Louise Lawler, and others have guided my intellectual and artistic growth. I have a great deal of respect for artists working in the realms of conceptual, minimalist, and other bleeding-edge forms of art.
But I think the issue here is that you are projecting formalist notions of authorship, creativity, and intent, into a realm where those things are discussed in a very different way. Legal analysis and the application of copyright law is just as much an art as visual arts, but it traffics in a different set of linguistic tools, which have extremely specific meanings. No matter how much I love a work of art, to analyze it in the context of U.S. copyright law requires unemotional, specific visual and physical analysis, with a defined set of attributes and elements that must be present for a work to receive copyright. This has nothing to do with the artistic merit or conceptual meaning of the works, as defined by critics, art historians, viewers, the artist, or even the Copyright Office. The Copyright Office don't truly weigh whether a work has merit. They have to follow a specific set of guidelines, laid out by U.S. law, to determine a work's copyrightability. As I'm sure you know, many conceptual and minimalist artists have in fact had individual works rejected by the office, even in the cases of acclaimed and generally meritorious works.
This doesn't mean all conceptual art is meaningless if it can't be copyrighted, nor does it mean artists who create this kind of art are not worthy of selling and profiting off their own work, which is I think what many artists feel is being implied when their work is argued to be ineligible for copyright. In fact, I would argue that some of the best conceptual artists have recognized the limitations of visual art linguistics and expression in the context of copyright law by creating art that interacts with other legal structures to form its "uniqueness" or "meaning;" I'm thinking here particularly of González-Torres, who created "certificates of authenticity" for many of his conceptual works, which are essentially legal contracts assigning ownership, structure, and, in a certain sense, "meaning" to his works, which in many cases would not otherwise be eligible for legal protection under copyright because of their inherent form. Indeed, this is a rich area of artistic exploration; one door being closed (copyright protection) does not mean others aren't open. (See also: this great College Art Association Award-winning paper exploring how artists and institutions can instead copyright depictions or documentation of land art and other site-specific works which are ineligible for copyright under U.S. law)
Yet, from my perspective, there is also a bigger, overarching issue here, which is the fundamental misalignment of interests by the parties involved in these specific types of copyright disputes.
- Artists and artist's estates, on the most part want the protections that come with copyright, obviously, and they are certainly within their rights to claim that what they produce is eligible for copyright. But they have no incentive to go further and prove it, because if they were to be rejected, as is likely for many conceptual and minimalist artists' work, that rejection could be demonstrable proof that other copyright claims they make about similar artworks are invalid. So you don't exactly see many conceptual artists clamoring to the U.S. Copyright Office to get their works rejected, as they surely know is likely.
- Cultural institutions, by virtue of needing to work with living artists and artists' estates in order to exhibit their work, have an interest in deferring to an artist's own beliefs on the copyrightability of their art; it's always going to be easier for a museum to just say "yes, that's copyrighted" to avoid an argument with an artist who wants photos of their art to run with copyright notices. And if museums/cultural institutions were to truly adopt the letter of the law as their policies on copyright, many artists would stop working with them, because the artists would probably view it as the institutions "bowing down" to legal principles that the artists may view as unfair, incorrect, or overreaching because they rob the artist of the financial/legal benefits of copyright ownership. So museums have literally no incentive to do full analyses of the copyright claims of artists they exhibit.
- And Commons/Commons users have the exact opposite incentives. The goal of the project, badly paraphrased, is to provide access to free images and culture. Under the letter of the law, that would include many works of art which are not legally copyrightable. Commons users, admin, and Wikimedia leadership want to build relationships with cultural institutions to help expand that access, but follow a fundamentally different rubric (the legal definitions) for identifying copyrighted works. Commons has an incentive to follow the letter of the law in order to a) not be sued and b) allow the widest possible amount of free images and access to free culture.
The misalignment of incentives here is key when it comes to fine art as being discussed here, because the different parties have vastly different resources and power. On Kawara's estate, as I'm sure you're aware, probably has a lot of money from sales of paintings from the estate, and theoretically also could make a lot of money by licensing images of the paintings if they were indeed copyrighted. So you have three groups, and they all want something different: artists, the most vocal of which are usually the ones with the most resources; museums, which want to offer access to culture but also have to play nice with artists to continue getting them/their estates on board for exhibitions; and Commons, which knows the law but is also not exactly looking for multi-million dollar lawsuits filed by artists and their galleries with the Artist's Rights Society backing them up.
I don't think there's really a good solution to any of this. But I would gently suggest that when discussing these issues, try and take the emotion out of the arguments: legal principles have firm meanings (until they don't, but that's why we have courts and case law). When others are trying to discuss these admittedly complex and nuanced principles, they're not impugning this kind of art, they're trying to analyze an issue through the lens of the law. Hope this is helpful in some roundabout way (and apologies if I'm just re-explaining things you already know). Have a good rest of your day! 19h00s (talk) 20:58, 20 February 2024 (UTC)
- Thx for sharing these interesting perspectives. Unfortunately I am busy this week and maybe further, and might share some details and do some further inquiries next week. Best regards. -- Mdd (talk) 23:16, 20 February 2024 (UTC)
Thx @19h00s: again for your contribution and patience. As you acknowledged in your opening I do develop new vision, which actually starts with a societal perspective and can picture what you called "fundamental (mis)alignment of interests by the parties." Two examples, first my lastest upload which in the basic schows that I have been working developing that vision for over 25 years in different standpoints in society. You mentioned the artist, cultural institutions and Wikimedia users, which could have been pictured in the same way. Second after a previous copyright dispute I made an analyses over that fundamental misaligment, see here. Now I am well aware that this makes sense to me, but will be mumbo-jumbo for practically everybody else.
This is a sneak preview of what I am talking about. I believe in time, a year or more, this could be helpful to picture these fundamental difficulties for the one reason you gave:
- But I think the issue here is that you are projecting formalist notions of authorship, creativity, and intent, into a realm where those things are discussed in a very different way...
There is indeed the realm of the legal system and simulation of that real here on Commons to get our stuff legally in order. Yet, and that is what I have experience on Wikiquote-EN for years: there are procedures at place and standards set, that if you keep it up you don't have to enter that realm of the legal system.
Now I don't know how far you have traced back the origin of the COM:VPC discussion. The discussion about the copyright on the work of On Kawara is highly theoretical and there is nothing at stack. It emerged from the copyright discussion about the status of the Loesje posters, which is similar. Now this is the case at hand:
- Three years ago a series of 300+ Valentine wish posters in Rotterdam were developed and presented in Rotterdam by a unique cooperation of over 500+ people and a staff of 10+ small companies.
- These posters were photographed and uploaded to Wikimedia Commons without proper documentation of even analysis of what was at stack.
- Three years later I questioned these works on Commons and all hell broke loose
We have a precautionary principle that the uploader should first be aware of the copyright status of that work. He uploaded two Loesje posters as well, where there was explicitly mentioned that these works were under copyright. Here is what I call a community consensus, a thin one maybe but still. What I would like to see here, that we focus on those two aspects first. Judge the situation on our procedures and standards first. Now at the moment I am still busy and will have little time this week and beyond, and will leave it with these two cents in return. Best regard. -- Mdd (talk) 23:32, 25 February 2024 (UTC)
Warning
[edit]Hi, I think this is not OK. Do not hunt other people's contributions, and do not attack people. Thanks, Yann (talk) 14:38, 2 March 2024 (UTC)
- Sorry you lost me. I have brought this subject under attention a month ago here. -- Mdd (talk) 15:57, 2 March 2024 (UTC)
@Yann: , your link gives me no result. If you refer to this edit I agree. Even more and earlier part I wrote "Want dat vind ik ook bezwaarlijk hier, daar lijkt geen natuurlijke persoon achter te zitten..." makes no sense, because there is a natural person behind it. And that is disrespectful as well, and not intended in that what. Therefor also my apologies. If this is what you mean, I will remove that whole sentence. Thx, --- Mdd (talk) 21:00, 2 March 2024 (UTC)
- No I mean the whole section. Yann (talk) 21:09, 2 March 2024 (UTC)
Ok, well I can tell you @Yann: that the origin of this comment started Feb 4, 2024, when I started migrating the 163 subcategorieën in Category:Posters of the Netherlands by year from Category:Posters of the Netherlands, 1751 to Category:1751 posters of the Netherlands, see for example here; after a week earlier the whole Category:Posters of Belgium by year was altered in similar way by others. Now I migrated the whole 155 categories and then hit a irregular series of 750+ posters, which I kept apart see here, and didn't migrate like the rest. In these series there was one set of Category:Valentine's Day 2021 in Rotterdam, which seem to have copyright issues, which I therefor nominated.
In this particular case the copyright concerns are one thing, the character of the work and the unprecedented quantities are another thing. This is why I started that De Kroeg talk item. Now what I would like to do is let the De Kroeg discussion take its course. I think the outcomes about this discussion could take a lot of time. Therefor I would like to withdraw the Deletion requests for the Category:Valentine's Day 2021 in Rotterdam posters, and reconsider in half a year or so. -- Mdd (talk) 21:44, 2 March 2024 (UTC)
File:Margaretha Zelle, alias Mata Hari.jpg has been listed at Commons:Deletion requests so that the community can discuss whether it should be kept or not. We would appreciate it if you could go to voice your opinion about this at its entry.
If you created this file, please note that the fact that it has been proposed for deletion does not necessarily mean that we do not value your kind contribution. It simply means that one person believes that there is some specific problem with it, such as a copyright issue. Please see Commons:But it's my own work! for a guide on how to address these issues. |
Wikifix711 (talk) 02:08, 15 March 2024 (UTC)
Niet bailey- maar noodbrug
[edit]Hoi Mdd, je hebt plaatjes geüpload van een brug https://commons.wikimedia.org/wiki/File:De_nieuwe_Baileybrug_over_de_Maas_in_aanbouw,_1945.jpg. Dit was geen baileybrug maar een aparte noodspoorbrug. Ik heb het artikel Baileybrug Venlo geüpdate en de plaatjes weggehaald. Groetjes, Konijnewolf (talk) 14:14, 21 April 2024 (UTC)
- Toevoegingː het lijkt dat je het plaatje van het Venloos Archief hebt. Tja helaas, dat archief is een ramp want het barst van de fouten. Helaas haalde Peter Keijsers ook veel foute info van die site. Groetjes Konijnewolf (talk) 15:38, 21 April 2024 (UTC)