Commons:Obres derivades

By taking a picture with a copyrighted cartoon character on a T-shirt as its main subject, for example, the photographer creates a new, copyrighted work (the photograph), but the rights of the cartoon character's creator still affect the resulting photograph. Such a photograph could not be published without the consent of both copyright holders: the photographer and the cartoonist.

It does not matter if a drawing of a copyrighted character's likeness is created entirely by the uploader without any other reference than the uploader's memory. A non-free copyrighted work simply cannot be rendered free without the consent of the copyright holder, not by photographing, nor drawing, nor sculpting (but see Commons:Llibertat de panorama).

Locations such as theme parks usually allow photography and sometimes even encourage it even though items of copyrighted artwork will almost certainly be included in visitors' photos. Such policies, however, do not automatically mean that such photos can be distributed under a public domain dedication or a free content license; the intent of a venue allowing photography may be to facilitate photography for personal usage and/or non-commercial sharing on social networking sites, for example. (See this discussion.) Also, the legal concept of de minimis can apply in such a setting: if the subject of your theme park photograph is your daughter eating an ice cream but someone in a Mickey Mouse costume can be seen in the background, this is not considered infringement nor a derivative work so long as it is clear from the photograph that you are interested in the girl and the frozen treat rather than the oversized rodent, and you may even market that image commercially (though you must be sure that Mickey really is "de minimis" and his presence must not make that image more useful, more interesting, or more marketable than it would be without him).

No. Disney does not hold the copyright on the photo, even though the first book entered the American public domain in 2022. There are two different copyrights to be taken into account, that of the photographer (concerning the photo) and that of Disney (the toy). You have to keep those apart. Ask yourself: Can the photo be used as an illustration for "Winnie the Pooh"? Am I trying to get around restrictions for two-dimensional pictures of Pooh by using a photo of a toy? If so, then it is not allowed.

Be aware, though, that Disney's protection strategy both relies on author's right (artistic property) and trade mark (extended to protect a design). The actual legal analysis would be more subtle in that case. While Disney does not hold a copyright on the photo, there may be an infringement on Disney's copyright of Pooh by virtue of copying via the photograph. As virtually all photography is considered to involve at least a modicum of creativity on the part of the photographer, in fact you may have created a derivative work without permission.

No. There are special provisions in US copyright law to exempt utility articles to a wide degree from copyright protection:

A "useful article" is defined as "an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information." This part of the amendment is an adaptation of language added to the Copyright Office Regulations in the mid-1950's in an effort to implement the Supreme Court's decision in the Mazer case.

In adopting this amendatory language, the Committee is seeking to draw as clear a line as possible between copyrightable works of applied art and non-copyrighted works of industrial design. A two-dimensional painting, drawing, or graphic work is still capable of being identified as such when it is printed on or applied to utilitarian articles such as textile fabrics, wallpaper, containers, and the like. The same is true when a statue or carving is used to embellish an industrial product or, as in the Mazer case, is incorporated into a product without losing its ability to exist independently as a work of art. On the other hand, although the shape of an industrial product may be aesthetically satisfying and valuable, the Committee's intention is not to offer it copyright protection under the bill. Unless the shape of an automobile, airplane, ladies' dress, food processor, television set, or any other industrial product contains some element that, physically or conceptually, can be identified as separable from the utilitarian aspects of that article, the design would not be copyrighted under the bill.

The test of separability and independence from "the utilitarian aspects of the article" does not depend upon the nature of the design—that is, even if the appearance of an article is determined by aesthetic (as opposed to functional) considerations, only elements, if any, which can be identified separately from the useful article as such are copyrightable. And, even if the three-dimensional design contains some such element (for example, a carving on the back of a chair or a floral relief design on silver flatware), copyright protection would extend only to that element, and would not cover the overall configuration of the utilitarian article as such.

From Cornell University Law School notes on US Code 17 § 102; content primarily taken from a U.S. Government work

Sculptures, paintings, action figures, and (in many cases) toys and models do not have utilitarian aspects and therefore in the United States (where Commons is hosted) such objects are generally considered protected as copyrighted works of art. A toy airplane, for example, is mainly intended to portray the appearance of an airplane in a manner similar to that of a painting of an airplane.^[2] On the other hand, ordinary alarm clocks, dinner plates, gaming consoles— as well as actual, full-scale planes— are not generally copyrightable... though any design painted on the dinner plate would likely be subject to copyright protection, as would an alarm clock in the shape of Snoopy the dog.

It is possible for utilitarian objects to have aspects which are copyrightable, but there is no clear line in US law between works which are copyrightable and objects which are not.^[3] A white paper on copyright and 3D printing mentioned several US court rulings that were each about whether a functional object had artistic elements that were "physically or conceptually" separable from the object's functional aspects and therefore copyrightable. The whitepaper suggested a consideration for determining if specific elements of a utilitarian object are copyrightable under US law: if an object has non-functional elements, then those elements are more likely to be copyrightable if the design of the elements was not influenced by utilitarian pressures.^[4]

Different countries may have different definitions: German law has a term called Schöpfungshöhe, which is the threshold of originality required for copyright protection. In the vast majority of national jurisdictions, the level of originality required for copyright protection of works of applied arts does not differ from the one for the fine arts.^[5] It is higher in Germany, Italy, Japan, Russia, Slovenia, and Switzerland.^[5][6] There is no legal definition for this threshold, so one must use common sense and existing case law.^[7]

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. Therefore, patents of this kind are not a matter of concern for Commons.

Photos of people in costumes of copyrighted characters may or may not be copyrighted.^[8] See Commons:Normes sobre drets d'autor per tema#Costumes and cosplay for more information. These should be decided on a case-by-case basis using the separability test.[2]

It is prohibited to copy text from non-free media like copyrighted books, articles or similar works. Information itself, however, is not copyrightable, and you are free to rewrite it in your own words. Quotations are allowed if they are limited in size and mention the source.

Although the scope of copyright varies between countries, it is a misconception that copyright applies solely to "art". Instead, copyright typically applies to a larger variety of works; to use the United States, where WMF servers are located, as an example: copyright protection is available to “original works of authorship fixed in any tangible medium of expression”^[9] Indeed, toys generally are original (owe their origin to an author), have authors (human creators), and are fixed in a tangible medium (wood, fabric, etc.)

The question, then, is whether toys are to be treated as vehicles and furniture: exempt from copyright protection on the basis of being utilitarian objects. Indeed, some countries, such as Japan,^[10] generally consider toys to be utilitarian objects and therefore ineligible for copyright. Other countries, such as the United States, however, do not consider toys to be utilitarian objects. Accordingly, paintings, statues and toys are all works subject to copyright whose photographs would require permission of the original creator to be hosted on the Commons. Just as you cannot upload pictures of a sculpture by Picasso, you cannot upload photographs of post-1928 Mickey Mouse or Pokémon figures.

The legal rationale in the United States has been established in numerous cases. "Gay Toys, Inc. versus Buddy L Corporation", for example, found "a toy airplane is to be played with and enjoyed, but a painting of an airplane, which is copyrightable, is to be looked at and enjoyed. Other than the portrayal of a real airplane, a toy airplane, like a painting, has no intrinsic utilitarian function."^[11] Additional rulings have found, for example, "it is no longer subject to dispute that statues or models of animals or dolls are entitled to copyright protection"^[12] and "There is no question but that stuffed toy animals are entitled to copyright protection."^[13]

Similarly, dolls' clothing has been found to be copyrightable in the US on the grounds that it does not have a utilitarian function of providing protection from the elements or preserving modesty in the manner that clothing for humans does (the latter is a "useful article.")^[2] Numerous lawsuits have shown that Mickey Mouse or Asterix have to be treated as works of art, which means they are subject to copyright, while a common spoon or a table are not works of art. Artistic elements of these items could be copyrighted, but only if it's separable from the utilitarian elements.^[14] Some toys are also too simple to meet the threshold of originality, for example, the Kong dog toy.^[15] "A toy model that is an exact replica of an automobile, airplane, train, or other useful article where no creative expression has been added to the existing design" is not eligible for copyright protection in the United States.^[16]

In other cases, the "separability" test may be needed (see Star Athletica, LLC v. Varsity Brands, Inc.). Consensus on Commons has found that sex dolls are copyrightable, as their design elements are separable from their utilitarian function.

When uploading a picture of a toy, you must show that the toy is in the public domain in both the United States and in the source country of the toy. In the United States, copyright is granted for toys even if the toy is ineligible for copyright in the source country.^[17]

Wikimedia Commons is not a commercial project, but the project scope requires that every single file be licensed for possible commercial reuse and be free of third-party copyrights. Fair use arguments are not allowed on Commons. "Fair use" is a difficult legal exception that exists only for pictures that are used in a certain limited context; it is never applicable to entire databases of copyrighted material.

Admittedly, it may be difficult or even impossible to illustrate such articles. However, the articles can still be written. Their lack of illustrations will not affect the vitality of Wikimedia's projects, and there are plenty of topics with opportunities to create illustrations which do not violate third-party copyrights. Even your own drawing of Pikachu cannot be published under a free license.

Some Wikimedia projects allow non-free works (including derivatives of non-free works) to be uploaded locally under fair use provisions. The situations in which this is permitted are strictly limited. It is vital to consult the policies and guidelines of the project in question before attempting to invoke fair use claims.

Sometimes individual works featuring copyrighted characters (such as Winnie the PoohorMickey MouseorSherlock Holmes) enter the public domain. Only aspects of the character that appear in the public domain work may be used to create a new derivative work. Aspects of the character that appear in works under an active copyright are still protected. For instance in Warner Bros. v. AVELA a promotional poster for the movie The Wizard of Oz was never copyrighted. A t-shirt company combined the public domain images from the poster with catchphrases from the 1939 film that was still under an active copyright. The court ruled that only the images were public domain and that combining them with the copyrighted catchphrases created a new work that infringed Warner Bros. active copyright for the film.

Derivative representations of characters are protected by copyright law in the United States until the original work that created the character is no longer copyrighted.^[18] This protection is separate from trademark protection. See Commons:Character copyrights for information on the copyright status of specific characters.

Actually, no. Photographs of, say, modern art statues or paintings cannot be uploaded either, and people accept that. If we accept the legal standard that comic figures and action figures can be considered as art and thus are copyrighted, we are just applying the standard rule here.

How does this guideline concern the selection of images that are allowed on Wikimedia Commons?

• Paintings with frames: Paintings that are in the public domain are generally allowed (see Commons:Sobre les llicències). Frames are 3-dimensional objects, so the photo may be copyrighted. Remember: Always provide the original creator's name, birth and death date and the time of creation, if you can! If you do not know, give as much source information as possible (source link, place of publication etc.). Other volunteers must be able to verify the copyright status. Furthermore, the moral rights of the original creator—which include the right to be named as the author—are perpetual in some countries. In either case you need permission from the author to create a derivative work. Without such permission any art you create based on their work is legally considered an unlicensed copy owned by the original author (taking from another web site is not allowed without their permission).

• Cave paintings: Cave walls are usually not flat, but three-dimensional. The same goes for antique vases and other uneven or rough surfaces. This could mean that photographs of such media can be copyrighted, even if the cave painting is in the public domain. (We are looking for case studies here!) Old frescoes and other paintings on flat surfaces in the public domain should be fine, as long as they are reproduced as two-dimensional artworks.

• Replicas of artworks: Exact replicas (even poor ones) of public domain works, like tourist souvenirs of the Venus de Milo, cannot attract any new copyright as they do not have the required originality. Hence, photographs of such items can be treated just like photographs of the artwork itself.

• Images of characters/objects/scenes in books: subject to any copyright on the book itself. You cannot freely create and distribute a drawing of Albus Dumbledore any more than you could distribute your own Harry Potter movie. In either case you need permission from the author to create a derivative work. Without such permission any art you create based on their work is legally considered an unlicensed copy owned by the original author.

If you come across derivative works of non-free works on Commons, tag them with {{SD|F3}} for speedy deletion.

In general, derivatives of free works (such as described in Commons:Collages, but also any related work that modifies it) are usually allowed. However, there must be compatible licensing used. For Creative Commons licenses, see Compatible Licenses:

• Collages are combinations of multiple images arranged into a single image

Case studies

Other useful sites