Commons:When to use the PD-Art tag/pt-br

This page relates to photographs taken from a distance only. For scans/photocopies, see Commons:When to use the PD-scan tag.

Photographs almost always attract copyright protection, the first owner of which will usually be the photographer or their employer. If you want to upload to Commons a copy of a photograph originally taken by somebody else, you have to be able to demonstrate one of the following:

• That the copyright owner has released the photograph under an acceptable free license; or

It is the third point that we are concerned with here.

A mere mechanical reproduction of some other image, such as an unmodified photocopy or scan of a drawing, cannot attract additional copyright protection over and above that of the original, as it lacks originality: it is a bare copy, no more. That rule applies internationally and, on Commons, is normally taken for granted.

InBridgeman Art Library v. Corel Corp. (1999), the New York District Court held that "a photograph which is no more than a copy of a work of another as exact as science and technology permits lacks originality. That is not to say that such a feat is trivial, simply not original". In spite of the effort and labor involved in creating professional-quality slides from the original works of art, the Court held that copyright did not subsist as they were simply slavish copies of the works of art represented.

The rule therefore excludes from copyright protection photographs which are intended to be no more than a faithful reproduction of a two-dimensional work of art such as a painting. If only technical expertise is involved (to take a faithful and unimaginative picture), the photograph acquires no copyright protection in its own right. The case extends the rule that scans and photocopies of two-dimensional originals are not copyrightable to cover in addition faithful reproductions created in the U.S. through photography.

As a result of this case, anyone taking in the U.S. a mere 'record' photograph of a 2D work of art — plain, full-framed — gets no copyright protection for the photograph. If the original work of art is sufficiently old that its own copyright has expired, the photograph itself will then be free for use on Commons.

The case of Bridgeman applies in the United States only. Other jurisdictions may have different legal approaches. In some jurisdictions—notably that of England and Wales, Spain, the Nordic countries, and Taiwan—arguments have been presented that faithful reproduction photographs are entitled to local copyright protection, either because local law considers them 'original' or because it allows a special type of "simple photograph" copyright. (See Commons:Reuse of PD-Art photographs for more info.)

Nevertheless, under Commons rules the {{PD-Art}} tag can be used for "faithful reproduction" photographs of 2D public domain works of art even where copyright on the reproduction might be asserted under local law in the source country.

This is a rare exception to the usual Commons rule that all images must be free both in the US and in the source country. Note that this exception only concerns the copyright on the reproduction. The underlying work of art must still be in the public domain in both the US and the country of origin.

Regardless of any local laws to the contrary, the Wikimedia Foundation has stated its opinion as follows :

"To put it plainly, WMF's position has always been that faithful reproductions of two-dimensional public domain works of art are public domain, and that claims to the contrary represent an assault on the very concept of a public domain. If museums and galleries not only claim copyright on reproductions, but also control the access to the ability to reproduce pictures (by prohibiting photos, etc.), important historical works that are legally in the public domain can be made inaccessible to the public except through gatekeepers."

"WMF has made it clear that in the absence of even a strong legal complaint, we don't think it's a good idea to dignify such claims of copyright on public domain works. And, if we ever were seriously legally challenged, we would have a good internal debate about whether we'd fight such a case, and build publicity around it. This is neither a policy change (at least from WMF's point of view), nor is it a change that has implications for other Commons policies."

Following this statement, a poll was held to determine policy, and the overwhelming view was that Commons should accept the {{PD-Art}} tag as being valid for photographs from any country. In August 2008, policy was changed accordingly.

When a photograph demonstrates originality (typically through the choice of framing, lighting, point of view and so on), it qualifies for copyright even if the photographed subject is itself uncopyrighted. This is typically the case for photographs of three-dimensional objects, hence the rule of thumb that "2D is OK, 3D is not". See also Photograph of an old coin found on the Internet below.

Use of the {{PD-Art}} tag implies:

The {{PD-Art}} tag should not be used:

• When the work of art shown in the photograph is in three dimensions

• When the photograph shows a 2D work of art within a 3D frame

• When the original work of art is not in the public domain.

• When the photograph has been released under a free license

OK as long as the image is or appears to be a faithful reproduction of a 2D public domain work of art.

OK. The WMF takes the view that as long as the reproduction is a faithful reproduction of the original it falls into the public domain.

OK as long as the image is or appears to be a faithful reproduction of a 2D public domain work of art. As per WMF's position, it is considered to be in the public domain even when there is a notice about copyright claim. The uploader should not include that notice when uploading to Commons because it could be confusing to people who will reuse the picture.

OK. Although many materials such as stained glass and fabric possess some three-dimensional texture, at ordinary viewing distances this texture is essentially invisible. As long as the surface is not noticeably curved or tattered/broken, and the original work is old enough to have entered the public domain, it is considered a faithful reproduction of the original with no original contribution.

 Not OK. {{PD-Art}} cannot be used for 3D objects such as sculpture, even if the sculpture is very old. If the photograph itself is demonstrably old enough to be in the public domain, use {{PD-old}}.

 Not OK. Coins are essentially 3D articles, and there is likely to be sufficient creativity in the lighting arrangements for the photographer to obtain a new copyright on the image. The WMF General Counsel has indicated that in his view coin images do not fall under Bridgeman v. Corel and hence are copyrighted: see Wikipedia talk:Non-free content/Archive 25#Photographs of ancient coins.

Use {{PD-old}} rather than {{PD-Art}} provided you are satisfied that the book publishers have not significantly modified the photograph for publication, e.g. by adding artificial colour. If the old photograph was, e.g., a portrait, {{PD-Art}} does not apply as there was no underlying work of art. If the photograph was of an earlier work of art such as an old painting, {{PD-Art}} could be used but is not needed as it no longer matters whether the photograph at the time attracted copyright or not.

Please be aware that depending on local laws it may not always be possible in your country to re-use content held on Commons under this policy. For a brief country-by-country review, see Commons:Reuse of PD-Art photographs.

The {{PD-Art}} tag should indicate why the original work is in the public domain in both the source country and in the United States. How to do this depends on the work.

Usually, works by authors who died at least 100 years ago are in the public domain in all nations, and so you can simply use {{PD-Art}} with {{PD-old-100}}:

For these, use {{PD-Art|US license tag}} where the US license tag is chosen from Copyright rules:United States: Copyright tags. Examples:

 Info Information on copyright duration for works first published outside the US can be found on publicdomainsherpa.com

Example:

For most source countries, the URAA date is 1996. If the work was in the public domain in its source country on that country's URAA date, it is often in the public domain in both that country and in the United States, and you should use:

Example:

These works are not in the public domain in the United States. You should not upload the work. If you find an existing such work, nominate it immediately for deletion.

A useful discussion (not part of this policy) of some of the US legal background can be found at Wikilegal/Sweat of the Brow