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Graffiti in Olinda, Pernambuco, Brazil

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Voting period is over. Please don't add any new votes. Voting period ends on 9 Mar 2014 at 18:51:35 (UTC)

Original – "An example of the highly decorative graffiti typically found in Olinda, Pernambuco, Brazil".
Reason
Graffiti is public art, making it in most cases free use (copyright only eligible for photographers), something I think we should definitely take greater advantage of. This is an extremely vivid and original example.
Articles in which this image appears
Graffiti
FP category for this image
Culture, entertainment, and lifestyle/Culture and lifestyle
Creator
User:Uspn
  • NO, FOP is the very issue. Brazilian law makes it clear the graffiti is free to be represented photographically. As with almost any photo, the photographer is imbued with the copyright of that capture. There is nothing illogical or immoral about these separate issues. WMF has not directed Commons or en:WP to change hosting policy, but has shown it will respect copyright based on US law if that is the wish of the copyright holder. Saffron Blaze (talk) 02:34, 3 March 2014 (UTC)[reply]
  • Nope. you have that wrong. Brazilian Law is not the standard here. It isn't. US law is and the foundation has supported that. And your interpretation of " As with almost any photo, the photographer is imbued with the copyright of that capture"...that is absolute bullcrap. I don't care that you don't know it. In the US if it is in the Public Domain the country cannot claim otherwise and if it is the copyright of the artist (which it is, the photographer here has made a faithful reproduction of the art work and the US does not allow FOB of art) then they again cannot claim other wise here on Wikipedia. Sorry, but the mere fact that this uploader is claiming the work as there own if utterly unacceptable.. I do not know why you are confused here Saffron Blaze, but you are.-- Mark Miller (talk) 08:15, 4 March 2014 (UTC)[reply]
Permanent, in the sense of the life of the work. That is the threshold we use and why we can often host ephemeral art such as sandcastles and ice sculptures under this same FOP provision. In this case the graffiti is likely to survive until destroyed one way or another. Saffron Blaze (talk) 02:40, 4 March 2014 (UTC)[reply]
  • Fair enough, although if something were written with that definition it would be a helpful link to have.
  • Oppose Great pic. I think it is certainly of FA standard. But I am not happy about the license. If the image itself is copyright free, then on what grounds are there some rights reserved to the uploader? Amandajm (talk) 07:36, 4 March 2014 (UTC)[reply]
Yep, and that is but one issue with the image.--Mark Miller (talk) 08:17, 4 March 2014 (UTC)[reply]
  • @Amandajm: This is a reproduction of a work on a three-dimensional surface (check out the window panes, among others), and thus something such as PD-ART would not apply (as that is only for 2D works; 3D elements, the most common being frames and sculptures, are not covered). I don't find any issues with that. Now, this should have a note regarding the photograph's copyright as separate than that of the underlying work, but that's easily rectified. — Crisco 1492 (talk) 10:55, 4 March 2014 (UTC)[reply]
Crisco 1492, Yes, thank you for pointing that out. This can be a problem. The image itself is essentially conceived as a two-dimensional image, yet it utilises the three-dimensional aspects of the building to some degree. It's a two dimensional work on a three dimensional surface. The Sistine Chapel ceiling and many other such artworks fall into this category, but are treated as two-dimensional works of art. I think it has to be considered as "art" first and foremost. Amandajm (talk) 12:07, 4 March 2014 (UTC)[reply]
  • Amandajm: Are those Sistine Chapel images being treated as {{PD-ART}}, or being licensed (CC license or PD, whatever) freely by the photographer? There's a big difference between the two. If it's being treated as PD-ART, then that means people are uploading pictures they did not take themselves of this 3D object and thus violating the photographer's copyright. If it is being licensed freely by the photographer, the artwork itself is being treated as PD by the photographer, but the photographer's copyright is still being respected. Photographs of 3D works of art such as David, for instance, would attract a new copyright for the photographer (the same as if one were photographing a person or other subject which cannot be copyrighted). Photographs of works of art with 3D elements likewise attract a new copyright, owing to the 3D-ness of certain elements (a frame, for instance). Admittedly here the 3D-ness is incidental, but the photographer can still claim copyright over the reproduction under US law (or at least as I understand US law). — Crisco 1492 (talk) 12:15, 4 March 2014 (UTC)[reply]
The Sistine Chapel images are treated as 2-D. Some are completely flat. Some are on slightly curved surfaces and some are on more curved surfaces. Each image within the overall scheme is treated (by the artist) as a 2-D image, into which he paints his own perspective. In other words, the artist is painting a surface, not a "solid object". It is the surface, not the shape, that is significant. The concept is of "pictures" not of a "decorated object". For this reason frescos are always treated as 2-D even if they are slightly curved rather than uniformly flat. In many frescos you see architectural elements that are not real. They are painted on the surface. Almost all the visible architecture here is "fictive" i.e. a fiction. Totally brilliant. This was the first ceiling to achieve this effect really well. It led to this sort of thing. In both cases, the actual surface is slightly curved, but real curve is completely overshadowed by the illusion of 3-dimensionality created by the artist.
If the idea of 2-D an 3-D becomes too nit-picky, then the weave on the canvas or the thickness of the paint might become an issue. And that is ridiculous for a artwork that is essentially on a surface and therefore works as a 2-dimensional rather than three dimensional work of art. You could have a situation where an image (the Mona Lisa, for example) was on a wooden panel that had warped over the centuries and was not longer completely flat. Treating it as an object because of the warp would be to defy the intentions of the artist. Amandajm (talk) 13:07, 4 March 2014 (UTC)[reply]
  • Support Just so it is clear this image is hosted on Commons because of a FoP exemption in the country of origin. It has nothing to do with the copyright status of the work being photographed. Where the freedom of panorama exemption exists a derivative work is not created by photographing the graffiti and the only copyright on the photo is that assigned to the photographer. The issue raised by Mark Miller has nothing to do with this being used on en:WP but has everything to do with whether the files should be hosted on US based WMF servers (where there is no FoP exemption for works like graffiti). Despite the previously mentioned DMCA takedown, WMF has not directed a change to the hosting and usage policy for any Wikimedia project. If Mark Miller doesn't want this file hosted he should talk to WMF. Saffron Blaze (talk) 23:03, 4 March 2014 (UTC)[reply]
  • Comment Saffron seems very confused about what is being stated here. I shall repeat it. Wikimedia Commons may host the image. There is absolutely no argument coming from me on that point. I have point blanks stated that. However...its use on Wikipedia is not allowed as on Wikipedia we must adhere to US FOP. Point blank..the uploader is claiming the work as their own, has not attributed the artist and the original art that was photographed was done so in a faithful reproduction of the 2 dimensional artwork. The photo should not be used on Wikipedia, let alone made a feature image. This is an old policy and has not changed.--Mark Miller (talk) 23:12, 4 March 2014 (UTC)[reply]
  • How you draw a distinction between Commons and Wikimedia since the servers for both are in the US is confusing. If you could point me to this WP policy that indicates WP must adhere to US FoP policy I'd welcome it.
If you are claiming that PD-Art should apply here that is a whole other kettle of fish. I would offer you are wrong given it is unlikely the graffiti is in the public domain and more importantly this is not a mechanical reproduction of a 2-D work. Arguing this graffiti is 2-D is also bankrupt as even at reasonable viewing distances once could see the 3-D aspects of the work. Saffron Blaze (talk) 23:29, 4 March 2014 (UTC)[reply]
No, sorry but the artist himself did not create the 3D aspects...he painted on them thus it is still a 2 D work. But that doesn't mean much here as the same is true whether this is 2D or 3D art. The only FOP recognized by the US are buildings.--Mark Miller (talk) 23:42, 4 March 2014 (UTC)[reply]
Even if we bought that argument, FoP in Brazil extends to 2-D works. Regardless, where is this WP policy you keep addressing? BTW, you are aware there are literally thousands of images under a FoP exemption used in WP articles where that exemption would not exist in the US? Saffron Blaze (talk) 23:55, 4 March 2014 (UTC)[reply]
I don't think you know what you are talking about at all.
Per Wikipedia:Non-U.S. copyrights:

The Wikimedia Foundation that supports Wikipedia is located in California and the servers that host Wikipedia are located in Virginia, so Wikipedia is bound to comply with United States copyright law. However, it is an international project, and many of our users and contributors are outside the United States. The project's aim is to produce and maintain a free encyclopedia, which can be used in any way that doesn't reduce that freedom. Most of Wikipedia's material is original, licensed by contributors under the Creative Commons Attribution-Sharealike (CC-BY-SA) and GNU Free Documentation (GFDL) licenses; some of Wikipedia's material, especially images, comes from third-party sources, and some of those third-party sources are outside the United States.
While Wikipedia prefers content that is free anywhere in the world, it accepts content that is free in the United States even if it may be under copyright in some other countries.

Per Wikipedia:Image use policy:

Public domain images are not copyrighted, and copyright law does not restrict their use in any way. Wikipedia pages, including non-English language pages, are hosted on a server in the United States, so U.S. law governs whether a Wikipedia image is in the public domain.
Images may be placed into the public domain by their creators, or they may be public domain because they are ineligible for copyright or because their copyright expired. In the U.S., copyright has expired on any work published anywhere before January 1, 1923. Although U.S. copyrights have also expired for many works published since then, the rules for determining expiration are complex; see When does copyright expire? for details.
In the U.S., reproductions of two-dimensional public domain artwork do not generate a new copyright; see Bridgeman v. Corel. Scans of images alone do not generate new copyrights—they merely inherit the copyright status of the image they are reproducing. For example, a straight-on photograph of the Mona Lisa is ineligible for copyright.
If you strongly suspect an image is a copyright infringement you should list it for deletion; see Deleting images below. For example, an image with no copyright status on its file page and published elsewhere with a copyright notice should be listed for deletion.

There are multiple issues with this image.--Mark Miller (talk) 00:02, 5 March 2014 (UTC)[reply]
First of all we have NOT established that this is in the public domain even in the host country. The uploader is claiming the copyright and this is not a sculpture, it is a painting on a building. That does not make it a 3 D work.--Mark Miller (talk) 00:20, 5 March 2014 (UTC)[reply]
  • I think you don't understand FoP and how it is applied to image hosting and use amongst Wikimedia projects. Regardless whether the graffiti is 2-D, 3-D, in the public domain, or fully copyrighted by the original artist(s) there is an exemption in Brazilian copyright law that allows its photographic capture. The effect of which is the only copyright implicated in the capture is that of the photographer. We accept this exemption for hosting such images on WMF's US servers and they are free to be used in any WM project. However, WMF has also made it clear they will defer to US copyright laws in these cases only when it is explicitly exercised by the copyright holder. Saffron Blaze (talk) 00:44, 5 March 2014 (UTC)[reply]
  • I understand FOP. It is for buildings ONLY in the US. Hosting on Commons has been and still is acceptable. Use on Wikipedia is not. period. I am very sorry that this has been such a contentious nomination but as I stated...the uploader has failed to actually show even the host country claims this as PD. This may well be a piece of private art commissioned for the building. And Saffron, I really do think you are simply ignoring the guidelines you requested I present here. If the mural were only secondary in nature in the image there would be no real issue. but it isn't. This is a faithful reproduction of a work of art not proven to be PD either in the host country or the US.--Mark Miller (talk) 01:02, 5 March 2014 (UTC)[reply]
  • Not sure why you started calling this a mural. Nevertheless, even if it were, this is a somewhat faithful reproduction (likely contentious) of a work of art (not clear if it a work of copyright though) given a FoP exemption in the country of origin. That is all that has ever been required to host or use any such image here at Wikimedia. Have a look at Modern Sculpture or Graffiti articles on WP and you will find them populated with similar images that are exempt in the country of origin but not in the US. If you are right them Lucy we gots lots of deleting to do. Saffron Blaze (talk) 01:35, 5 March 2014 (UTC)[reply]
Not that it matters, but I suspect you are right about it being a mural or that is one stealthy graffiti ninja. When you say there is no FoP exemption for this are you talking about in Brazil or the US? To me it is absolutely clear it exists in the former and would not in the latter. If you are at the point where you have a personal beef with the practice of accepting and using FoP exempted files on Wikimedia projects then this certainly isn't the place to address it. You could address it to Geoff Bringham at Meta.Saffron Blaze (talk) 04:32, 5 March 2014 (UTC)[reply]
Saffron, please understand, I have absolutely no issue with Wikimedia or our policies, just your understanding of them. Happy editing!--Mark Miller (talk) 09:20, 5 March 2014 (UTC)[reply]
  • Our policy is to host and use FoP exempted files. The mural in this work is subject to a FoP exemption. That this policy conflicts with US Copyright Law is something for the WMF to address. Deal with it. Saffron Blaze (talk) 14:01, 5 March 2014 (UTC)[reply]
  • Nope. Our policy is to use US copyright law. There is absolutely no conflict. And I am dealing with it right where it needs to be dealt with. The mural does not have a FOP exemption.--Mark Miller (talk) 22:05, 5 March 2014 (UTC)[reply]
  1. Does US law accept non-US FOP for non-US photographs? Looking at Article 5 (1) and (2) of the Berne Convention, it would appear to be against the international obligations of the United States to apply non-US FOP in any situation. On the other hand, US courts sometimes claim that they ignore what the international obligations of the United States are; the only thing which matters is what the US government decided to write in the U.S. copyright law. I think that there for example was a recent court ruling about statutory damages and copyright registration on this matter. Also, in the case Itar-Tass Russian News Agency v. Russian Kurier, Inc. a US court suggested that the copyright holder should be determined according to the laws of the country of origin (which contradicts a French court ruling where the French supreme court concluded that using foreign law is against the Berne Convention). People might argue that the photographer is the copyright holder under Brazilian law. These issues make the situation a bit unclear, and Commons has decided to accept these images until better information is available. The Wikimedia Foundation decided to take down a small number of images some time ago after receiving a DMCA request from a sculptor; see wmf:DMCA Oldenburg.
  2. Is the photograph covered by standard US FOP laws? In the case Leicester v. Warner Brothers (232 F.3d 1212 (9th Cir. 2000)), it was discovered that the US FOP provision for architectural works include the right to take photographs of artworks (such as statues) if the artwork isn't separable from the building. I'm guessing that this artwork isn't separable from the building, although I may be wrong. Note that the s:Architectural Works Copyright Protection Act (which provides copyright protection for architecture and FOP for copyrighted architecture) only applies to buildings completed on 1 December 1990 or later. The loophole where an artwork is part of a building might therefore not work if the building was completed before 1 December 1990. When was this building completed? The building in the Leicester v. Warner Brothers case appears to be from 1992, so it doesn't help us.
  3. Is this covered by Brazilian FOP? According to the law, the artwork must be permanently installed. According to Commons:COM:FOP#Permanent vs temporary (which is not based on Brazilian law but on German law), this seems to be permanent. Unless Brazilian law defines permanent in some other way, this would appear to be covered by Brazilian FOP. --Stefan2 (talk) 21:38, 6 March 2014 (UTC)[reply]
A very similar issue regarding freedom of panorama has been discussed on Commons here: Requests for comment/Non-US Freedom of Panorama under US copyright law. There is no need to have the same discussion again on Wikipedia.--eh bien mon prince (talk) 13:50, 7 March 2014 (UTC)[reply]
Direct link regarding the RFC: https://commons.wikimedia.org/wiki/Commons:Requests_for_comment/Non-US_Freedom_of_Panorama_under_US_copyright_law Saffron Blaze (talk) 19:06, 7 March 2014 (UTC)[reply]

Wikipedia and Wikimedia Commons are two different entities. Any deletion discussion for the image would take place on Commons not Wikipedia. Any use on Wikipedia would be discussed on Wikipedia and not on Commons. The issue here is simply, does this image comply with Wikipedia image use policy in order to be chosen as a Feature image? Wikipedia standards above clearly show that on Wikipedia we comply with US law in regards to image licensing. An image may be public domain in its host country, but not in the US. An Image may be copyrighted in its host country but not in the US. First, the image is not simple graffiti so that much seems to be an issue of whether the image has a correct description to begin with and is being used properly. If the image is in the public domain in the US, then why is the image being licensed more strictly? How can the uploader claim a license beyond PD for a faithful reproduction of a 2 dimensional image they claim is in the public domain?. If this is considered 3 dimensional then the question, again, is whether the image is being used properly as graffiti is not 3 dimensional. Then we go back to the question of licensing and FOP again. On Wikipedia there is no FOP exemption for artwork or anything other than buildings unless the work is only secondary in nature in the photo. Clearly this work is the main and only subject of the photo. Again, I Oppose this image for Feature status based on the licensing for Wikipedia...NOT for licensing on Commons. I also Oppose due the nature of the work and feel it is not graffiti but a mural, which most likely has an attributable author not being given proper attribution.

So my next question is this...on Commons if we are to be going by the host country and not US copyright...please explain why the National Portrait Gallery images which are the copyright of the NPG (as recognized by UK law of "Sweat of the Brow") are allowed to remain even with the attached letter from the NPG lawyers requesting they be removed? Are we going by US or UK law in regards to keeping those images hosted on Commons. There is no question that they are PD Old in the US but they retain the copyright of the gallery in the UK. Commons simply has a great deal of images that may or may not be suitable for hosting depending on the proper standard. Saffron stated that if true we have a lot of deletions to make. That is actually true. Not everything hosted at commons should be there and I have often had images (as recently as three of four nights ago) speedy deleted for clear copyright issues, but this doesn't seem to be a clear issue on Commons and have not taken even a slight step towards a discussion of this image on Commons. Wikipedia is another subject entirely. There are too many issues for this image to be promoted to feature status in my opinion.--Mark Miller (talk) 19:50, 7 March 2014 (UTC)[reply]

Mark, you based your opposition on a mistaken assumption, namely that Commons hosts images for other Wikipedias that do not apply US copyright. This is not the case: while there are files which are accepted on Wikipedia but not on Commons, there are no files for which the opposite is true, at least for the English Wikipedia.--eh bien mon prince (talk) 21:23, 7 March 2014 (UTC)[reply]
No. I did not "Base my opposition on a mistaken assumption".--Mark Miller (talk) 01:55, 8 March 2014 (UTC)[reply]
Still strongly oppose Wow....are you guys serious...and do you even read what is being stated here?--Mark Miller (talk) 01:34, 8 March 2014 (UTC)[reply]
This is mostly for the benefit of other readers, since you are unwilling to admit your mistake: despite what is claimed here, Commons *does not* accept any files which are not free under US copyright law. This is stated unambiguously in this official policy page.--eh bien mon prince (talk) 02:25, 8 March 2014 (UTC)[reply]
And this is also for readers: I have not made a mistakes as I have not made any "claims" about commons policy NOT being under US law. The only statement I made was that commons hosts a number of images being claimed under other countries copyright...as this nomination is claiming. Whether that is true or not seems to be the point of contention. Clearly you did not see my question in regards to US law and the NPG and its claim under US law to be perfectly acceptable while this claim is that under Brazilian Law it is as well. You cannot have your cake and eat it too. This is not about Commons. If any mistakes in regards to commons have been made it is by those making claims about commons policy. This is not about commons, this is about Wikipedia and its policies. As I have stated, this image is not FOP exempted under US copyright, which is all we are concerned with here. Is this image subject to copyright under Wikipedia policy? Yes...it is. Why? Because nothing has been demonstrated to say otherwise. the OP nominated the image because of their belief that the image was free from copyright under Brazilian law. Since we have CLEARLY established that is not the standard here, the only outcome for which could be possible is to decline this image as Feature status. Thank you for everyone's input but it seems the discussion has become very clouded and I feel the best thing to do at this time is decline feature status as an image with an ambiguous license.--Mark Miller (talk) 04:22, 8 March 2014 (UTC)[reply]
  • Policy may be that the copyright in the source country and the US are to be considered and must be free in both. This so called policy has not been in contention (here nor on Commons). However it is also fact that Commons does an IAR when it comes to FoP source country exceptions, as it did here. If WP is going to stop accepting these files... then as I said you have many deletions to do from articles that feature such images. Saffron Blaze (talk) 04:40, 8 March 2014 (UTC)[reply]
  • Wikipedia is not in the practice of "accepting" these files as they are simply links from commons and not uploads to Wikipedia itself. As I said, the amount of deletions needed on Commons is NOT the issue here. You have not demonstrated your position as accurate. You requested Wikipedia image use policy on this and it was linked. You chose to ignore it completely.--Mark Miller (talk) 05:49, 8 March 2014 (UTC)[reply]
  • Commons "does an IAR" because there is no clear-cut rule in similar cases: "The question of what country's law applies in a freedom of panorama case is an unsettled issue. There are several potentially conflicting legal principles, any of which might be used to determine the applicable law" (quote from Commons). In any case, both en.wiki and commons are subject to US copyright laws, so it makes no sense to reach two different conclusions on the copyright status of the same image which involves the same law. It would not just be illogical but also pointless: if the Commons community decides to delete it, it could not be linked from Wikipedia (obviously) and if the English Wikipedia community decides to remove it, it deprives itself of a valuable image without diminishing the risk of legal action against the WMF.--eh bien mon prince (talk) 07:03, 8 March 2014 (UTC)[reply]
  • I fully concur with that assessment and is what I have been saying all along. I will add I doubt Commons will change its practice of accepting images with source country FoP exceptions. The "infringement" risk is exceedingly small and is resolvable on a case by case basis as it was in the DMCA takedown incident. Saffron Blaze (talk) 17:20, 8 March 2014 (UTC)[reply]
  • You might want to have that discussion on Commons. For this discussion clearly there are enough copyright concerns that I still oppose this image for feature status as do others. Much of what was just stated above actually supports that.--Mark Miller (talk) 21:03, 8 March 2014 (UTC)[reply]
  • Oppose. The mere fact that the copyright status has caused such an argument here is indicative of the problem. That said, I'm not convinced that the EV that's high anyway. J Milburn (talk) 14:45, 9 March 2014 (UTC)[reply]

Not Promoted --Armbrust The Homunculus 19:02, 9 March 2014 (UTC)[reply]

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