Wikipedia talk:File copyright tags/Public domain/Mistagged images

I've recently been moving old, public-domain photographs to Wikimedia Commons, and I've been checking their copyright tags to make sure they are correct before I do so. I've found that the vast majority of such images are mistagged. Photos of people who died before 1909 are routinely tagged PD-old, even though no information is given on the photographer's date of death. Photos created before 1923 are routinely tagged PD-1923 or PD-US, even though there's no information on when they were first published. This is incorrect.

Unless we can show that the creator (the photographer) died more than 100 years ago, an image should not be tagged PD-old. Unless we can show that image was first published (not created) before 1923, an image should not be tagged PD-US. But there are tens of thousands of such images tagged incorrectly, with no information on photographer or publication. Any of these could be copyrighted. If such images are moved to Commons, they will probably be deleted there for not having adequate source or author information.

What should we do in these cases? I see 3 options.


 * Option 1
 * Following the letter of our policy, these should all have the incorrect licensed removed and should be tagged nld. But this would be rather disruptive.


 * Option 2
 * We can tag all such images as suspect, using a new tag of some sort. For PD-old images, this would request that users find out who the photographer was and when they died, so that the tag can be verified. For PD-US images, this would request that users research evidence that they were published before 1923. Images not tagged as suspect can be safely moved to Commons.


 * Option 3
 * We can ignore the problem and pretend it doesn't exist. But all such images are implicitly included in Category:Copy to Wikimedia Commons, so they will all eventually be moved there, and will probably be deleted there. It's a lot of work to move an image to Commons, and it's discouraging to see it immediately deleted.

Comments

 * Please sign your comments below.

I wrote this RFC, and would appreciate ideas from others. – Quadell (talk) 14:16, 4 April 2009 (UTC)
 * As someone with a background in commercial publishing, i can say the attitude there would be to use them & wait for someone to claim copyright (which almost never occurs); then remove them with an apology if the claim seems at all plausible. Frankly I think Commons should adopt this policy. In the meantime option 2 may be the best. Johnbod (talk) 22:47, 5 April 2009 (UTC)
 * So perhaps we could make a tag like PD-US-suspect. What would it say? I'm thinking something like: "This photograph was created before 1923, but it has not been determined when it was first published. If it was published before 1923, it is in the public domain. It may be in the public domain if it was first published after 1923, depending on the circumstances. More research is needed to definitely determine its copyright status. When adequate publication information is provided, please replace this notice with a correct copyright tag." Does that seem correct? – Quadell (talk) 00:12, 6 April 2009 (UTC)
 * Seems good for me - & I'd certainly do a pre-1888 one (below) too. Johnbod (talk) 00:14, 6 April 2009 (UTC)
 * Common sense also applies. There are a good number of images for which there really can't be reasonable doubt that they were published before 1923, but for the most part the under-documentation is appalling.  Last night I was going through the pictures for 'On this day...', which ought to be priority for screening because they run on the main page.  One had been tagged for deletion at Commons since January and I had to delete it (Russian copyright law had changed).  In other places we get things like this, which in some sense is the fault of Commons for not being more careful.  Yes, the subject died during the nineteenth century but was this likeness made or published during his lifetime?  It's got no source, no author, only a claim that it's public domain because some volunteer said so.  There are actually quite a few like that and if I had more time (which I don't) I'd be going through them with a fine toothed comb.  Durova Charge! 23:18, 5 April 2009 (UTC)
 * The oldest photographs that are still copyrighted in the United States (so far as I can tell) are ones that were created long ago, but were not first published until 2003 or later. In these cases the copyright lasts 70 years from the death of the photographer, or 120 years from the date of the photograph if it isn't known who the photographer was. Yes, that means a photograph made in 1890 can still be copyrighted if it wasn't published until 2003; that's why it's so important to know who the photographer was. But we usually don't know. (Incidentally, photos created in the U.S. in 1888 or earlier are in the clear in all cases, no matter what. We don't seem to have a license tag for this. PD-old isn't strictly accurate.) – Quadell (talk) 00:05, 6 April 2009 (UTC)
 * Or stop marking all such tagged images as being candidates for Commons. I tend to upload to Commons, but sometimes do not do so when the status of an image does not meet my interpretation of what should go in Commons.  Sometimes it ain't in Commons because it shouldn't be.  -- SEWilco (talk) 01:24, 6 April 2009 (UTC)
 * Another alternative might be to add a parameter to the tag such as published= for PD-US and death= for PD-old. Then we could just recategorize the ones that don't have that parameter as needed. Calliopejen1 (talk) 12:27, 7 April 2009 (UTC)
 * There is a big misconception of the PD-1923 tag on Wikipedia (and Commons). A lot of people seems to believe that creation equals publication.  Publication is more of a concern with US laws, and it does not apply solely to photographs.  Per 101. Definitions of the US Copyright Law, paintings also have to fulfill the first "publication" rule (by having copies made and distributed, or published in the media) to qualify for PD-1923 tags.  Such questionable images should not be moved to Commons; that would be just passing the buck around.  Jappalang (talk) 22:54, 8 April 2009 (UTC)
 * Thanks for your comments. But I'm not sure what you mean by "Publication is more of a concern with US laws, and it does not apply to photographs." A photograph's copyright term in the U.S. is determined by its date of publication, just like any other work. Also, a painting is "published" when it is made available for public consumption. So if a painting was put up in a gallery open to the public, it would have been published at that time. All the best, – Quadell (talk) 23:23, 8 April 2009 (UTC)
 * Sorry, I left out a word. It should be "does not apply solely to photographs."  I have added it in.  As for paintings, I will copy over what I have entered for Template talk:PD-US.
 * Per 101. Definitions of the US Copyright Law,
 * "'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.


 * To perform or display a work 'publicly' means —


 * (1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or


 * (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times."


 * This is why the White House Collections has claimed copyright for the painted portraits of US Presidents, which (with the exception of Gilbert Stuart's George Washington) were first published in Presidents of the United States of America (1962), and has been continually renewed with every new edition. There are several Presidential portraits on Commons that should be deleted.  Jappalang (talk) 00:13, 9 April 2009 (UTC)


 * Personally I've always LOATHED the practice of summarily deleting images with a dodgy license without allowing the uploader a reasonable chance to sort it out, and have always felt that whoever tags them should at least make some effort to find an appropriate source before hitting the big red button. As a result, I would definitely support option 2 - folks would then have a reasonable opportunity to sort it out, or find and alternative instead, as opposed to leaving masses of articles suddenly minus their images. Colds7ream (talk) 17:26, 13 April 2009 (UTC)


 * The uploader should be notified to try to find a date of publication or information about the creator, and if no one has objected to the image, but it seems suspicious, it could be tagged as you suggest. Before just tagging, though, I think that tagging editors should be encouraged to do a google search to see if the information pops up easily.  All the best, -- Ssilvers (talk) 18:35, 13 April 2009 (UTC)


 * Before we can comment on these claims, you might want to actually prove they are true. Frankly, the claims made in the opening statement to me sound completely incorrect. From everything I know about copyright law -- which is certainly far more than the average person, as I've taken classes, read books, etc. specifically on the topic -- such images are tagged correctly. Assuming they aren't seems to me to be extremely reckless and foolhardy. DreamGuy (talk) 19:45, 13 April 2009 (UTC)
 * It's a common mistake, but date of creation is not the same thing as date of publication. Likewise, date of the subject's death is not the same thing as the date of the photographer's death. --Carnildo (talk) 23:42, 13 April 2009 (UTC)


 * Option 1 sounds like a bad idea. For many older images, the publication history is simply not known (and likely never will be). We've always given a certain amount of leeway for images that are known to be over a century old, but whose copyright status is not 100% clear. Obviously this situation could use some improvement, but I'm not really sure what the best way forward is. Kaldari (talk) 00:41, 14 April 2009 (UTC)
 * It would be cool if someon could randomly take a sample (10? 20?) of these images, do some reasearch on each, and report back here with the results. Some hypothetical results:  If we estimate that 80% are good, then we should change commons or stop uploading to commons with the current tags.  If 80% of them are bad, then do number 1.  If 50% are good, and 50% cannot be determined, and none are bad, then either commons should change, or we should stop automatically uploading them to commons.  Or whatever, you get the idea. - Peregrine Fisher (talk) (contribs) 00:57, 14 April 2009 (UTC)
 * I just tried File:Louis Riel.jpg, to see what would happen. I'm no guru, but I've uploaded hundred of free images, and I couldn't figure out whether that photo is really free or not with 10 minutes of google searching.  My guess is that the photo is from 1870+-10 years.  Louis Riel was a politician, so the photo was probably published before 1923 (he died in 1885).  Without info on publishing, we have to say it was taken at the latest in 1885.  I couldn't find who the photographer was, so there's no way to know if they died in the ensuing 24 (2009-1885) years.  It was probably taken around 1870, it was probably published before 1923, and the photographer probably died before 1909 (life expectancy was about 50 years).  Yikes. - Peregrine Fisher (talk) (contribs) 01:14, 14 April 2009 (UTC)
 * According to Quadell above, pictures created in the U.S. before 1888 are public domain. But this picture might have been taken in Canada, and I don't know the situation there. -- Avenue (talk) 13:04, 14 April 2009 (UTC)
 * Canada's fantastic. Photos taken in Canada by Canadian residents before 1949 are PD no matter what. – Quadell (talk) 14:23, 14 April 2009 (UTC)
 * Then we're hoping it was taken in Canada and not in the US, but still hard to be totally sure. - Peregrine Fisher (talk) (contribs) 18:45, 14 April 2009 (UTC)
 * PD-US images should be tagged do not copy to Commons unless verifiably taken in the USA. Stifle (talk) 15:26, 23 April 2009 (UTC)
 * Well, you mean "first published" rather than "taken", but yes. – Quadell (talk) 15:28, 23 April 2009 (UTC)


 * I'd like to note that this problem exists on Commons as well - there's a lot of material there with vague "PD-old" tagging, which is... well, it's usually not wrong, but it's not robust, you know? I'd certainly discourage option 1), but 2) sounds pretty sensible - we shouldn't just ignore the problem, because we'll have to face it eventually. Shimgray | talk | 15:40, 23 April 2009 (UTC)

New template
Based on recommendations and input here, I have created PD-US-suspect, which adds images to Category:Images needing PD-US verification. Feel free to add this template to images tagged PD-US, but which don't have evidence of pre-1923 publication. You may also want to look through this category and research images there, removing the tag where appropriate and replacing it with publication information (if it was published before 1923), or nominating the image at Possibly unfree files if it does not appear to be PD. – Quadell (talk) 15:28, 23 April 2009 (UTC)