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Request for comment

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A question regarding the public domain status of press/publicity photos produced between 1923 and 1977.

Below are a few examples of images licensed PD-US-no notice. (For the sake of simplicity we'll consider only images clearly produced in the U.S. between 1923 and 1977.)

I ask for comment on the following questions:

1) Are publicity/press photos such as the examples above considered "published" just as they are? In other words, is the mere act of producing and distributing such photos considered "publishing" them? Or is it necessary to find that image subsequently printed in a book, newspaper or magazine?

2) If we assume that the producer of such a photo a) had no intention of relinquishing their copyright over it, and b) had taken no action to renew the copyright within the prescribed time, can we still consider it public domain for lacking a clear copyright notice?

If this topic has been discussed/resolved at some other time, please provide links to the discussion. – JBarta (talk) 22:31, 2 March 2013 (UTC)[reply]

The difference between the "Brühl" image that led to the DR discussion here as compared to those in the gallery of "examples" above is that the those four are "publicity" photos distributed for free and in very large numbers by the organization that produced them seeking that they be published to promote the individuals or shows depicted in them. The Brühl image, on the other had, was produced by and belongs to the Keystone Press Agency which is in the business of producing images of all types which it then licenses to its clients and/or subscribers for a fee for which it provides its clients a limited license for "one time only" publication under contractual terms and conditions that state that the licensees may not "permit the unauthorized republication, transfer, or any other use, private or commercial, of the image." Very small numbers of prints of these images were made (usually not more than 25-50) for distribution to the Angecy's media clients.
Unlike widely distributed free publicity photos, Keystone retains copyright, does not distribute its images for free or to promote itself, and does not release them to the Public Domain. An example of a Keystone copyright and image reproduction limitation and terms notice backstamped on a Keystone Press Agency photograph supplied by the company's Paris bureau see here. Centpacrr (talk) 23:21, 2 March 2013 (UTC)[reply]
How would you determine the difference between the two types of photos you describe? – JBarta (talk) 00:46, 3 March 2013 (UTC)[reply]
The copyright notice. -- Asclepias (talk) 01:03, 3 March 2013 (UTC)[reply]
The act of producing them is not publication. Distributing them usually is, though it can depend on the details. There was a doctrine of "limited publication" which was distribution to a definitely selected group of people for a limited purpose, and "general publication" which lacked one (or both) of those elements. Only general publication triggered the copyright notice clause. The ability to further distribute is also taken into account (sometimes an implied restriction is enough). So for publicity materials given out to anyone that asks, that would be publication. On the other hand you can still have surprising results -- the Oscar statuette was deemed to be limited publication, despite any photographs that had been taken, as the statues themselves were only given to the winners for a particular purpose and there was an implied lack of permission -- nobody had sold their Oscars in that period. So the lack of notice on the physical statuette ended up not being an issue. As for publicity photos, you'd have to show that *those actual copies* got distributed without notice. If the copies sent to newspapers had a notice which was not mentioned when the newspapers reprinted them, that is not enough, as the newspaper's copyright would still cover the photo. Copies which were never actually distributed could not cause publication either, so photos from the authoring company's archive may never have been published at all and the lack of notice may mean nothing. Lack of renewal was probably very common for those, but that would only apply to material published before 1964. Lastly, all the notice and renewal requirements are specific to U.S. law. If a work was first published in another country, we also need to see that something is PD according to that country's rules, without regard to the lack of notice or renewal. The Brühl image has a pretty clear stamp on it from a London office (as well as New York). There is a pretty good chance it was first distributed in the UK, meaning those laws may come into play (and it would *not* be PD there anytime soon). Even if simultaneously published, UK law would probably be the one used -- U.S. law would be 95 years from publication while UK would be 70 years (presuming an anonymous employee). Secondly, there is no evidence based on the ebay posting alone which shows distribution outside of the company, so there is no evidence of distribution and therefore publication -- it may have been a private undistributed copy so even in the US the lack of notice may not mean anything. Carl Lindberg (talk) 01:13, 3 March 2013 (UTC)[reply]
The difference is determined by things such as the supplier, method of distribution (such as in a press kit), captioning, backstamping, and the like. Photographs distributed for free in press kits by an organization's media relations or publicity department with the intention and expectation that they would be widely published for the purpose of promoting the business interests of the organization that supplied them could logically be assumed to be "free" and released to the public domain. Those that are supplied for a fee and under contract by a commercial photo or press agency such as Keystone and such distribution is limited exclusively to its media subscribers for "one time only" publication under a limited license that prohibits republication or other use are clearly intended to be "non-free" copyright protected images that remain the property of the photo or press agency. The "Brühl" image clearly fits in the second category as a copyrighted, non-free image. Centpacrr (talk) 01:17, 3 March 2013 (UTC)[reply]
Regarding UK publication: why do we care in the least about foreign copyright? Anything PD-US for any reason is acceptable at Wikipedia. Meanwhile, if it's 1950 and I publish something without a copyright notice, it doesn't again become copyrighted just because a newspaper with proper copyright notice decides to republish it; such a work is no more copyrighted than a PD-old work that the newspaper republishes. Nyttend (talk) 02:13, 3 March 2013 (UTC)[reply]
A newspaper or other publication that purchases a limited license to publish a copyrighted image can't involuntarily void either the copyright or ownership rights of the image belonging to its copyright holder simply by failing to include a specific copyright notice as a cutline under the image or any other way. (See 17 U.S.C. § 201(e)) Nothing the licensee does can render the image as being in the PD especially since the limited license granted to the publisher contractually provides that the licensees also may not "permit the unauthorized republication, transfer, or any other use, private or commercial, of the image." The Keystone image is thus not US-PD unless and until its copyright (or any renewed term thereof) expires or the copyright holder voluntarily releases it to the PD. Centpacrr (talk) 02:47, 3 March 2013 (UTC)[reply]
We may ignore my second sentence for the purposes of this discussion, since I misread the text to which I was responding; I thought Clindberg was saying that the newspaper's copyright notice would cover someone else's image that didn't have a notice at all. Nyttend (talk) 03:31, 3 March 2013 (UTC)[reply]
About UK publication: If a photo was first published in the United Kingdom, then URAA messes things up. If the photo was first published in the UK and still protected by copyright in the United Kingdom on 1 January 1996, then the copyright expires in the United States 95 years after publication even if the notice or renewal was missing when it was first published. There are two exceptions: URAA doesn't apply if the work was subsequently published in the United States within 30 days (see Commons:Template:PD-URAA-Simul) or if the photographer was a US citizen residing in the US at the point when he took the photo (see Commons:COM:URAA#Exceptions, but we don't seem to have a template for this situation). Unfortunately, the photographer is often unidentified, so his country of citizenship and country of residence can't easily be determined. --Stefan2 (talk) 13:39, 3 March 2013 (UTC)[reply]
File:1953 Tony Martin.JPG has a "Maurice Seymour Chicago" mark, so person and place are highly known. Someone should have notified commons:User:We hope about this discussion; I've done it for you. AnonMoos (talk) 16:12, 3 March 2013 (UTC)[reply]
@Centpacrr - A "one time only" publication is still publication. Once members of the general public have access to copies, there really isn't any doubt about it -- that was general publication and such copies did need notices. There was a case where publicity material was given out with strict instructions to return it afterwards -- however in the end that did not help, as it was deemed general publication (since the works were further displayed to the public) and the lack of notice on the distributed copies ended their copyright, regardless of the copyright owner's intent. You still had to follow the technical rules. I'm sure the Bruhl image was published at the time, but to me there is no sure evidence that *that copy* was distributed -- which is the only way the lack of notice on that copy might be relevant. As for a newspaper which prints it which forgets an overall copyright notice -- that would be quite troublesome before 1978. It may or may not have completely voided the copyright, but would probably have been a near-complete defense for innocent infringement. And quite often the presumption for included items without a separate notice was that the publisher did control the copyright; it was possible for a copyright owner to fix the situation but it made fighting infringement on their own quite a bit harder (particularly if someone had negotiated in good faith with the publisher to republish it). 17 201(e) again is only effective since 1978; lack of notice has nothing to do with copyright transfer but rather the end of copyright protection.
@Nyttend - if a copyrighted work is published in a newspaper without a separate notice, then yes the newspaper's notice *does* cover that work. The situation was called an "error in name" (since the wrong copyright owner was on the associated notice) but it did not cause copyright to be lost. A third party had to presume that the newspaper was the copyright owner and ask permission accordingly. See this circular. The only exception was specifically advertisements (and only advertisements), which did need their own copyright notice. If the work had previously become public domain then yes of course it is still public domain when reprinted in a newspaper, regardless if there is an overall notice or not. If a press photo was distributed to newspapers without notice, then yes it might become PD before ever actually being printed. The UK question is important though; if it was first published in the UK and was not published in the US within 30 days, then it may be a UK work and it may well be subject to URAA copyright restoration, regardless of whatever the copyright notice status was. I forgot I was on en-wiki and not Commons, where the UK question is even more important, but we additionally do need to show that its copyright was not restored. That copy obviously found its way to the New York office after having been (from the looks of it) produced by the London office, but *when* ? Carl Lindberg (talk) 21:43, 3 March 2013 (UTC)[reply]

I received a message about one of photos I uploaded. Well, I'm very cautious about copyright of photos. To be fair, I uploaded this photo because it lacks copyright notice, and I'm very sure that it was used in newspapers and other periodicals. I was inspired by user We hope to scrutinize and enjoyably upload every photo, belonging to network. Sometimes, I am still cautious about shows by big-name television studios, like 20th Century Fox, that were distributed to first-run television. --George Ho (talk) 19:08, 3 March 2013 (UTC)[reply]


This comment addresses question #1 of this RFC.

Reading directly from U.S. Copyright Law (Section 101 Definitions) we find:

"Publication" is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.

This is quite clear and defines ALL such press and publicity photos as "publications". Centpacrr's argument that one copy may be leased to a newspaper for a one time printing is still in fact " for purposes of further distribution, ...or public display" and "constitutes publication".

User Carl Lindberg above mentions "the doctrine of limited publication" and mentions the Oscar statuette. This falls neatly into place as once the Oscar was awarded, there was no further distribution... unlike a press photo. – JBarta (talk) 20:43, 3 March 2013 (UTC)[reply]

That definition of publication is only for actions from 1978 and later. Prior to that, there was no statutory definition, so the courts gradually came up with some doctrines -- that is where the "limited publication" and stuff came from (all of which is sort of out the window as of 1978, but still governs stuff before that). However, something that merely exists that looks like a press photo is not proof that that particular copy was actually distributed and published, so the lack of notice on it may not mean anything at all. If it was an undistributed copy which only saw the light of day in 2008 or something, the lack of notice is completely meaningless. Odds are that the photo was published back then but there is not really any evidence of no notice, here. Carl Lindberg (talk) 21:43, 3 March 2013 (UTC)[reply]
Well, the whole "proof of distribution" bit is a little problematic. I would argue that for practical purposes we should consider such a photo as distributed (unless evidence is offered otherwise). The alternative is that for every such image uploaded it would be necessary to also upload an image of a magazine or newspaper article of the period that proves the image was further distributed at least once. This would not only grind such uploads to a halt, but would disqualify and open for deletion hundreds (if not thousands) of images happily residing on WP and Commons' servers. – JBarta (talk) 21:56, 3 March 2013 (UTC)[reply]
Well... for many of these publicity photos, there has been an additional dated stamp of a newspaper on the back with their own notes, which does show that that copy was distributed and was done so back in the day. It's also possible that the ebay seller has more information on where they obtained it which may help. But unfortunately, it's that kind of proof which would be required in a court if there were ever infringement proceedings -- you have to base your belief in PD on *something* concrete and even then, if you're wrong, you lose. You were able to use works without notice if they were distributed, which was easier to tell at the time, but nowadays you need some indication of publication without notice *at the time* which gets much harder to prove. I have no problem assuming this was published in 1969; the simple act of offering it for sale by Keystone may have constituted publication, so if it had been 95 years since then I'd think it'd be OK. But I do have a problem assuming publication *without notice*, without some more concrete info. Particularly for 1964 and later works, as there was never a requirement to renew (which caused many pre-1964 works to become PD after 28 years) thus the copyright is presumably still valid unless there is proof of publication without notice. The danger increases exponentially for post-1964 works so we should be more cautious. Carl Lindberg (talk) 22:48, 3 March 2013 (UTC)[reply]
  • Whether or not Keystone Press Agency stamps "©" on each and every photographic print it creates of images for which it owns the copyright is irrelevant as Keystone distributes (which some contend thereby "publishes") such prints only to its subscribers ("clients") (and not free to the public) in fee, and it does so only under contractual terms and conditions known and agreed to by both parties in writing which provide that Keystone a) retains both ownership of and copyright to the images and b) limits through a license how the client may use the images Keystone provides. Among those terms is the condition that: "The images may be incorporated in materials for editorial publication only. Permission to make a one-time reproduction does not include the right to authorize others to make any further use of any image. ANY COPYING AND/OR MAKING OF EXTRA PRINTS IS FORBIDDEN." If a third party (a Keystone client or anybody else) later "publishes" the image "without a copyright notice", however, that does not in any way void or abrogate Keystone's ongoing copyright protection and/or property rights. As such a third party "publisher" is not the image's actual copyright holder, under 17 U.S.C. § 201(e) Keystone can't lose or otherwise be involuntarily deprived of its copyright by the unauthorized actions of another party. (Title 17 limits the conditions under which that can possibly happen to Title 11 of the United States Code which covers bankruptcy.) Centpacrr (talk) 13:15, 5 March 2013 (UTC)[reply]
    • You wrote that the image only was distributed to subscribers. Was anyone able to become a subscriber, or was there some other criterion for that? Books are only distributed to its buyers, although anyone may choose to be a buyer. --Stefan2 (talk) 13:54, 5 March 2013 (UTC)[reply]
      • In order to become either an ongoing subscriber or a single use client to acquire and use an image owned by Keystone Press Agency requires that the subscriber/client first establish an account and thereby agree in writing to Keystone's contractual terms and conditions of use. It should also be noted, however, that while a book buyer does not have to sign a "contract" with the publisher or copyright owner, the work is still protected by means of the copyright notice contained therein which usually appears as a part of, or on the same page as, the book's colophon. Centpacrr (talk) 14:38, 5 March 2013 (UTC)[reply]
    • Once you offer copies for sale, that is publication. You don't even have to *make* a sale, the simple *offering* means it is publication, and if the copyright term is based on publication, that clock starts. The ability to be a Keystone client is open to anyone. Any copies *distributed* thereafter should have a copyright notice, if such distribution was done before 1989. The "limited publication" test is only for acts before 1978; you can't claim a "limited set of people" based on their ability to pay. For example, if you give copies of a book manuscript to a few select people to get their opinion, that was not general publication. If you give copies of a book to people who pay $10,000, whoever that might be, that is general publication. Keystone giving out copies to only its clients... is still general publication since there is no real restriction on who that client can be. In fact the photo would be considered published once it was even offered by Keystone, even if no client had actually requested it. Centpacrr is right in that if someone with a copy had no right to republish it and did so, or if they had such a right but there were instructions on how to handle the copyright notice and such notice was not included in the republication, copyright might not be lost. Courts would determine how much control the copyright owner had I'm pretty sure, and acts beyond their control would not invalidate the copyright. It can be a gray area if someone was published without notice but with the copyright owner's permission. See this case, where the instructions on notice were apparently in the contract, but the notice was still forgotten, and thus a comic strip became public domain (though derivative of a still-copyrighted character, so not completely free, but the comic strip's creator lost all rights on his derivative work). One of the other cases on that page is this one, where a photo was submitted to and published in an uncopyrighted magazine, and later licensed and published in a copyrighted one. It turned out the first publication invalidated the copyright. If a reproduction is completely unauthorized though, a lack of notice means nothing -- you can't lose a copyright via someone else's copyright infringement. Carl Lindberg (talk) 14:43, 8 March 2013 (UTC)[reply]
      • Until the law was changed in 2004, anyone could visit the issuing authority and request a copy of any Swedish driving licence or passport photo. However, most people are not notable, so in most cases, I would assume that no one ever requested a copy of the photo. Are all Swedish passport and driving licence photos considered as published under United States law as long as the passport or driving licence was issued before 2004? --Stefan2 (talk) 15:08, 8 March 2013 (UTC)[reply]
        • Interesting question. They were probably published, I'd guess (it's an easier case when they are authored *for sale* though). They would also have been restored by the URAA to 95 years from publication if they were still protected in Sweden in 1996 (though pre-1923 photos would be OK of course). Carl Lindberg (talk) 00:10, 14 March 2013 (UTC)[reply]
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Until a few minutes ago this template and the counterpart at commons had identical last sentences but the "this page" links went to different places. Which link should we use? (also asking at commons) --Jeremyb (talk) 04:43, 23 October 2013 (UTC)[reply]

Machine-readable metadata

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I’ve placed an implementation of this template that includes machine-readable markers in the sandbox as part of the File metadata cleanup drive. Please deploy. A demonstration that the sandbox version is functional can be seen at Template:PD-US-no notice/testcases. —RP88 (talk) 18:37, 12 October 2017 (UTC)[reply]

Done — Martin (MSGJ · talk) 21:10, 12 October 2017 (UTC)[reply]
Thank you very much. —RP88 (talk) 21:13, 12 October 2017 (UTC)[reply]

It is 2019 now

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This template should now say "between 1924 and 1977 inclusive". Jonghyunchung (talk) 09:28, 1 January 2019 (UTC)[reply]

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The link to "further explanation" is broken and should now go to c:Commons:Copyright rules by territory/United States. Please update. This may also apply to some other templates. ww2censor (talk) 17:32, 11 January 2020 (UTC)[reply]

Requested edit 5 July 2023

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Remove "Taiwan area" from the template. Taiwan is not administered by China, and so including it in this template is somewhere between redundant and POV-pushing. —Compassionate727 (T·C) 01:45, 5 July 2023 (UTC)[reply]

 Not done: seems clear in this template that it is meant to exclude the Taiwan Area from the stipulation in the previous sentence. It does not imply that Taiwan is administered by China, only that it is in close proximity and should not be included in the previous sentence's stipulation. P.I. Ellsworth , ed. put'er there 07:09, 5 July 2023 (UTC)[reply]

Edit request

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{{imbox

| type = license | image = [[Image:PD-icon.svg|52px|Public domain|link=]] | imageright = [[Image:Flag of the United States.svg|border|64px]] | text = ''This work is in the '''[[public domain]]''' because it was [[publication|published]] in the United States between {{Not-PD-US-expired-min-year}} and 1977 inclusive, '''without a copyright notice'''. Unless the author has been dead for several years, it is not in the public domain in countries that do not apply the [[rule of the shorter term]] for US works. This includes Canada, China (not Hong Kong, Macao, or Taiwan Area), Germany, Mexico, Switzerland, and other countries with individual treaties. See also [[Commons:Commons:Copyright rules by territory#United States|further explanation]].''<div style="display: none"> <span class="licensetpl_short">PD-US</span> <span class="licensetpl_long">[[Public domain]] in the United States</span> <span class="licensetpl_link">{{fullurl:{{FULLPAGENAME}}}}</span> </div> }}{{image other | [[Category:Pre-1978 without copyright notice US public domain images|{{PAGENAME}}]] }}{{free media}}<noinclude> {{documentation}}

</noinclude>
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{{imbox

| type = license | image = [[Image:PD-icon.svg|52px|Public domain|link=]] | imageright = [[Image:Flag of the United States.svg|border|64px]] | text = ''This work is in the '''[[public domain]]''' because it was [[publication|published]] in the United States between {{Not-PD-US-expired-min-year}} and 1977 inclusive, '''without a copyright notice'''. Unless the author has been dead for several years, it is not in the public domain in countries that do not apply the [[rule of the shorter term]] for US works. This includes Canada, China (not Hong Kong, Macao, or Taiwan Area), Germany, Mexico, Switzerland, and other countries with individual treaties. See also [[Commons:Commons:Copyright rules by territory/United States|further explanation]].''<div style="display: none"> <span class="licensetpl_short">PD-US</span> <span class="licensetpl_long">[[Public domain]] in the United States</span> <span class="licensetpl_link">{{fullurl:{{FULLPAGENAME}}}}</span> </div> }}{{image other | [[Category:Pre-1978 without copyright notice US public domain images|{{PAGENAME}}]] }}{{free media}}<noinclude> {{documentation}}

</noinclude>

Link to the actual page on Commons. The heading has long since been removed. C F A 💬 22:20, 15 October 2024 (UTC)[reply]

 Done Nthep (talk) 06:59, 16 October 2024 (UTC)[reply]
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