Wikipedia:Possibly unfree files/US government portraits

Wikipedia: Possibly unfree images/US government portraits

The following discussions are an archived debate. Please do not modify it.

Subsequent comments should be made in a new section.

1st Round

Image:Rbreich.jpg - image is listed at US Government PD, specifically "PD-USGov-DOL", but it is not a "Work of the United States Government". The painting was done by Richard Whitney (artist) who was not under the employ of the US Government, but was a government contractor. As such, this painting is not in the public domain.--Jiang 01:43, 16 May 2006 (UTC)[reply]
- This image is the official portrait of a Secretary of the United States Department of Labor. It is on display at their headquarters. The commission for the painting was to Richard Whitney (artist). As a work of the U.S. federal government, the image is in the public domain. The reason he is listed as the image source was because the US DOL has not placed an electronic image online. Whitney has given permission for his electonic image of the work to be dispayed. I would refer you all to this category for images of all the Secretaries. Jiang's edits and lack of dialog are close to vandalism. --evrik 04:23, 16 May 2006 (UTC)[reply]
  - but as you acknowledge, it was commissioned to Richard Whitney, so it is not a work of the U.S. federal government, since contractors are not employees. 17 U.S.C. § 101 states "A 'work of the United States Government' is a work prepared by an officer or employee of the United States Government as part of that person’s official duties." Was Whitney ever an employee of the federal government? It doesn't look like it. He was simply commissioned to paint a portrait of Robert Reich. --Jiang 04:40, 16 May 2006 (UTC)[reply]
- What planet do you live on? Do you not know what an official portrait is? Did you not look at Category:Department of Labor images to see paintings of all the Secretaries? The portraits are commisioned by private individuals and donated to the government. It's owned by the U.S. people. I'd like to quote from above:

Note: Images can be unlisted immediately if they are public domain or licensed under an indisputably free license (GFDL, CC-BY-SA, etc.—see Wikipedia:Image copyright tags for more on these). Images which are claim fair use must have two people agree to this.

- - First you incorrectly kept reverting the page.
  - Then you incorrectly list the image as Possibly unfree."
- I reverted your change because the painting is in the public domain, and the artist gave permission to use the picture from his website, because DOL had not posted it electronically yet. What get me is that you claim to be acting in good faith, but you did not engage in any dialog as you were doing these edits. Then you threathened to have me blocked because I disagree with yoour actions. I was wrong in calling you a vandal, you are really a bully. --evrik 05:14, 16 May 2006 (UTC)[reply]
  - Please read the copyright law or an explanation thereof, if you haven't already. Just because the government owns a piece of intellectually derived material does not mean this material is automatically in the public domain. This is a gross misunderstanding of US copyright law. Specifically, 17 U.S.C. § 105 states "Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise." Unless Mr. Whitney was a DoL employee at the time of his creation of the artwork, it is not public domain. --Jiang 06:23, 16 May 2006 (UTC)[reply]

2nd Round

- Would you please explain to me why is it that you have decided to target this one painting rather than any of the others that can be found at Category:Department of Labor images?. The image is in the public domain. --evrik 17:24, 16 May 2006 (UTC)[reply]
  - Those images should all go. I will nominate them for deletion once the consensus is established here that they are not works of the Federal Government and a fair use rationale is not otherwise provided. If you still think this image is in the public domain, then please back up your claim by showing how Mr. Whitney was under the employ of the DoL.--Jiang 19:39, 16 May 2006 (UTC)[reply]
- FWIW Jiang just threatened me with 3RR , though the guidelines clearly state an immeadiate change can be made if the image is PD.

- - Please, guys, be civil. evrik, since the PD status of the image is currently under dispute, you can't use its PD status to justify your reverts. Please leave the disputed tag in place. Jiang, the question of whether official US government portraits are PD may have far-reaching consequences for Wikipedia. On the one hand, you do have a good argument—we don't seem to have any explicit evidence (yet) that the portraits were commissioned as "works for hire" falling into the blanket PD-gov exemption (rather than a typical commissioned painting where the copyright is owned by the painter). On the other hand, we should make an effort to get some kind of official clarification and/or legal advice before a mass deletion is begun. Can you start a separate page for this, e.g. Wikipedia:Possibly unfree images/US government portraits (rather than cluttering WP:PUI with a long discussion), and post a request for help on Wikipedia:Village pump (policy) etc? —Steven G. Johnson 21:35, 16 May 2006 (UTC)[reply]

3rd Round

I find it hard to believe that all of wikipedia and wikicommons is wrong on this issue, and instead think Jiang is overreaching. --evrik 01:19, 17 May 2006 (UTC)[reply]

Grover Cleveland
Benjamin Harrison
G.A. Hobart
William Fairfield Whiting
Admiral Isoroku Yamamoto
Elliot Lee Richardson
Paul McCartney

Paul McCartney

These images were all gathered from:

Category:Executive_Office_of_the_President_images
Category:Department of Commerce images
Category:United_States_Senate
http://commons.wikimedia.org/wiki/Category:Vice_Presidents_of_the_United_States_of_America
http://commons.wikimedia.org/wiki/Category:PD_US_Government
http://commons.wikimedia.org/wiki/Category:PD_US_DOS
http://commons.wikimedia.org/wiki/Category:PD_US_DOC
http://commons.wikimedia.org/wiki/Category:PD_US_LOC

I thought I would add these to the mix

George H.W. Bush

George H.W. Bush
F.D. Roosevelt
Franklin Pierce
Dwight Eisenhower
Chester Arthur
Calvin Coolidge
Andrew Johnson
James Madison
Harry Truman
Herbert Hoover
Warren Harding
Ulysses Grant
Theodore Roosevelt
Rutherford Hayes
John Quincy Adams
Millard Fillmore
Zachary Taylor
Woodrow Wilson
William Taft
William Mckinley
William Harrison
Richard Nixon
Millard Fillmore
R Hayes
Martin Vanburen
Lyndon Johnson
John Kennedy
James Polk
James Monroe
James Madison
James Garfield
James Buchanan
James K. Polk
Andrew Jackson
Andrew Jackson

Andrew Jackson
Abraham Lincoln

(above posted by evrik)

The copyright has expired in the U.S. (published post 1922) for Image:Grover Cleveland portrait2.jpg, Image:Benjaminharrison.jpg, Image:Gahobart.jpg, and Image:WilliamFairfieldWhiting.jpg. Image:Admiral_Isoroku_Yamamoto.jpg was not produced by the U.S. Department of State, but rather, the Japanese government. Those issues will perhaps have to be settled on commons. As for the photographs, there are certainly photographers under the employ of the government, as images found on whitehouse.gov, state.gov, etc. will make explicit. But I am making a claim here against a specific image because the author, Richard Whitney, is named, and the information we have about him suggests that he does not work at the DoL as an artist.

I will bring this to another page, as suggested, shortly. I don't have much time tonight, but I will also post on the mailing list and commons so we can get more input.--Jiang 01:50, 17 May 2006 (UTC)[reply]

Thanks, Jiang. —Steven G. Johnson 02:21, 17 May 2006 (UTC)[reply]

Once again, Richard Whitney was named because he gave permission (which is on file with the permissions office) to use his image of the official portrait from his website. I noticed you didn't mention Barbara Bush [1], what's your take on that one? --evrik 14:29, 17 May 2006 (UTC)[reply]
- Evrik, this seems to be the first time you've mentioned an explicit "permission", unless I've missed something. I thought you were arguing that it was PD; have you now changed to saying that the painter owns the copyright but grants permission? Can you give more information? What permissions office, and permission to do what, exactly? Please note that permission to use an image is not sufficient for Wikipedia, since we also need permission to modify, redistribute, sell, etc. —Steven G. Johnson 17:40, 17 May 2006 (UTC)[reply]
  - I think you may have missed it. The painting itself is owned by the U.S. Department of Labor, however, to date they have not posted the image online. This is why I went to the artist and asked his permission to use his electronic image off his website. So, to recap, the painting is owned by USDOL, and the federal government. The images on wikipedia was given by the artist. A copy of his permission was sent to the permissions 'office' at wikipedia. --evrik
    - Per declaration by Jimbo and community policy, Template:Withpermission must be accompanied by a fair use rationale. Whether the painting is owned by the U.S. Department of Labor is not the dispute here: even if it is owned by DoL, the painting can be copyrighted. If the painting were PD as you claim, then permission would be irrelevant. But who, assuming we need permission, owns the copyright in the first place? Whitney or DoL? --Jiang 18:35, 17 May 2006 (UTC)[reply]
    - I'm going to go out on a limb here and ask you to cite a case where something is owned by the federal government that isn't public domain. By deafult it is - to date you haven't cited on instance where this is not true. In any case, the artsist has said that wikipedia can use his images as detailed here Image:Rbreich.jpg#Notes and here Talk:Richard Whitney (artist). --evrik 19:07, 17 May 2006 (UTC)[reply]
      - [2] [3] [4] [5] [6]. Again, you fail to realize the distinction between works done by federal employees and works made for hire. --Jiang 19:41, 17 May 2006 (UTC)[reply]
- (The Barbara Bush painting, at first glance, may have problems too, although I can find some evidence that presidential portraits are PD. For example, CSPAN goes so far as to claim their own copyright over copies of recent portraits [7], which they could presumably only do if their lawyer had decided the portraits were PD!) —Steven G. Johnson 17:40, 17 May 2006 (UTC)[reply]
  - Presidential portraits, by their very nature ar PD. The gallery you cited at C-Span are not official portarits, but were commissioned by C-Span. C-Span is not a government agency. --evrik 18:08, 17 May 2006 (UTC)[reply]
    - on what basis are presidential portraits PD? maybe the government will never bother suing us from reproducing their images, but i just dont see the rationale for claiming PD. --Jiang 18:35, 17 May 2006 (UTC)[reply]
      - "Most of these images and graphics are available for use in the public domain, and they may be used and reproduced without permission or fee. However, some images may be protected by license." [8] (preceding posted by Evrik)
        Exactly, it states, "some images may be protected by license." could this be among those?--Jiang 19:41, 17 May 2006 (UTC)[reply]
- The Barbara Bush paiting could likewise be assumed to be copyrighted. but a copyright does not preclude us for declaring a fair use rationale.--Jiang 18:35, 17 May 2006 (UTC)[reply]
Look, even if you don't think that the Reich image is public domain, it IS being used with permission from the artist. I am going to retake out the PUI tag, again. --evrik 19:20, 17 May 2006 (UTC)[reply]
- If it's used with permission, then tag it with Template:withpermission, not PD. PD is under dispute here, so don't remove the tag until the discussion is over.--Jiang 19:41, 17 May 2006 (UTC)[reply]
  - The painting is PD, the electronic image was taken from Richard Whitney, and he was given proper credit. --evrik 19:20, 25 May 2006 (UTC)[reply]
    - Please stop asserting the same thing without backing up your arguments. The images by Richard Whitney are released by him under GFDL. He never declared them to be in the public domain. --Jiang 19:58, 25 May 2006 (UTC)[reply]

4th Round

Physically owning a painting does not mean that the copyright is also owned (see 17 U.S.C. § 202), so that is not relevant. It is possible that the painter assigned his copyright in the painting to the government when it transferred the physical painting. However, the federal government has only relinquished copyright in works that it has authored, not works in which it has otherwise obtained copyright. Only works of the federal government have been relinquished into the public domain. See 17 U.S.C. § 105 ("...the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.")

Because it is not a person, the federal government was the author only if the painting was a work for hire. It does not appear that the painting was a work for hire because it does not meet either of the criteria. It is therefore not in the public domain.

The painting does not meet the first criteria of being a work for hire because it was commissioned from an independent contractor, rather than created by a federal employee in the scope of their employment. It also does not fit the second criteria for works by independent contractors because it does not fit into any of the nine subject matter categories (see statutory text in work for hire article). Postdlf 20:21, 17 May 2006 (UTC)[reply]

You clearly don't understand the process. When a cabinet secretary leaves offices, friends and supporters raise money to purchase a painting to donate to the agency where that person was the secretary. The same goes for the President. The intent is to make a gift to the American people, since buying a painting with public money is unseemly. --evrik 21:09, 17 May 2006 (UTC)[reply]

Doug, from Utah writes:

I understand there's a portrait of each President in the White House correct?. When are the portraits painted - toward the beginning or the end of their tenure? How is the artist selected? Thanks.

Bill Allman

Dear Doug: Portraits of the presidents are usually painted after they leave office. Sometimes the president knows an artist, sometimes he picks from among artists who send examples of their works to us. Arrangements are then made for him to sit for the artist and approve the finished product. Unless the president has friends who would like to donate the painting, it is paid for by the White House Historical Association which gives it to the White House. [9]

--evrik 21:14, 17 May 2006 (UTC)[reply]

Two reasons why this is already addressed by my analysis above: 1) a donation of the physical painting does not itself convey the copyright in that painting, because under 17 U.S.C. § 202 physical ownership of a work is separate from ownership of a copyright in that work; and even if the copyright itself were part of the donation, 2) a donation of a copyright to the federal government just makes the federal government the copyright holder, because under 17 U.S.C. § 105, the federal government may retain a copyright that is conveyed to it; only works that the federal government has authored are committed to the public domain. Postdlf 21:42, 17 May 2006 (UTC)[reply]

Why don't we agree to write the federal government a letter and find out! --evrik 22:05, 17 May 2006 (UTC)[reply]
- You may do that, but I don't see what that would accomplish. We already have the evidence - from Mr. Whitney's claim that the image was "commissioned" and the language/analysis of the law clearly indicating that such commissioned works are copyrighted. The options now are to 1) have Mr. Whitney or DoL or whoever owns the copyright to release the image under GFDL (unlikely), 2) declare fair use under the existing limited permission (provided Mr. Whitney remains the copyright holder), or 3) delete the image. Whoever is answering inquiries in the DoL is not in a position (and is also likely unqualified) to give legal advice: the only thing really to ask is who, specifically, owns the copyright and proceed from there.--Jiang 23:13, 17 May 2006 (UTC)[reply]
  - Well, if we asked the federal government, "What is the copyright on these portraits?" that would solve it wouldn't it. I find it laughbale that you seem to think that we can't get a legal opinion from the federal government. Are you a copyright attorney? By the way. I posted comments about this at the Wikipedia:Village pump (assistance) . --evrik 23:32, 17 May 2006 (UTC)[reply]

Evrik apparently doesn't understand the difference between an independent contractor and an employee. If Whitney had done the work as an employee of the federal government, it would almost certainly have been public domain. But because Whitney did it as a work for hire as an independent contractor with the Secretary (and/or the people who donated Whitney's fee), Whitney retains the copyright. Employee means that the government would actually have had to hire him on a regular salary for the express purpose of making such portraits. Since such a relationship would severely constrain an artist's creativity (that is, they like to do pictures of other things besides government bureaucrats), few artists would agree to such an employment relationship. Artists like to work as independent contractors instead. --153.18.156.130 03:49, 18 May 2006 (UTC)[reply]

I would just like to chip in and agree that Jiang appears to be in the right, for what that's worth. —Simetrical (talk • contribs) 05:52, 18 May 2006 (UTC)[reply]

Resolved

It turns out that we have explicit permission from the painter to distribute the image under the GFDL. This is now noted on the image page. —Steven G. Johnson 23:40, 18 May 2006 (UTC)[reply]

Starting all over

Where is the campaign to have all the PD images removed?

I see that Jiang tagged two more images for deletion. Jiang, you're wrong on this issue. Rather than wrecking havoc, why don't you start a new topic at the village pump and get some clarity on the issue. --evrik 18:16, 22 May 2006 (UTC)[reply]
- There is clarity. You've simply ignored it. The laws have been cited, the logical conclusions laid out, and agreement as to those conclusions reached by everyone but you, who have failed to present a single counter-argument. The reason why the Reich painting was accepted was because the artist released it under the GFDL, not because it was PD. Please drop the issue unless you have something substantive to say. Postdlf 18:22, 22 May 2006 (UTC)[reply]
- This has already discussed on the village pump, here. Apparently, everyone else thinks you're wrong on this issue, so maybe you are? There's no point in repeating to you whatever's been so clearly, succinctly, and accurately when you are still throwing out these completely irrelevant personal attacks that do nothing to support your claim that these images are PD. --Jiang 06:29, 23 May 2006 (UTC)[reply]
As far as I can remember, there are no copyright attorneys that have weighed in on the issue. --evrik 19:01, 22 May 2006 (UTC)[reply]

I spoke to Bill Alman, the White House curator, who said the following.

Generally, the portraits are property of the federal government and are in the public domain. In the case of the White House portraits, the photograph of the portrait may have copyright restrictions, but that it should be generally okay to use the images as long as the publisher of the electronic image is credited.

Is there a copyright attorney in the house? --evrik 20:50, 24 May 2006 (UTC)[reply]

Fifth Round

The following images have been added to the debate:

Image:Barbara Bush.jpg, Image:Betty Ford.gif, Image:Elizabeth Truman.gif, Image:Hillary WHportrait.jpg, Image:Lady Bird Johnson.gif, Image:Mamie eisenhower.gif, Image:Pat nixon.jpg - as noted above, paintings of government officials are unlikely to have been painted by government employees and are therefore not in the public domain (at least, not for paintings since 1923). A fair-use rationale is unclear here, since we can probably find official government photos (which are in the public domain, assuming they were taken by a staff photographer) of the subjects. —Steven G. Johnson 23:44, 18 May 2006 (UTC)[reply]
As I have said previously, these are PD, and I will revert the tags. --evrik 21:22, 24 May 2006 (UTC)[reply]

Image:Clinton.jpg, Image:Fordportrait.gif - As noted here, official paintings are commissioned works, and since they are not the work of a federal government employee, they are not public domain. A fair use rationale is unnecessary as photographs taken by government hired photographers already exist.--Jiang 17:01, 22 May 2006 (UTC)[reply]
- Disgree You're wrong on this issue. Rather than wrecking havoc, why don't you start a new topic at the village pump and get some clarity on the issue. --evrik 18:12, 22 May 2006 (UTC)[reply]
  - There are plenty of PD photos of Clinton and Ford that can be used instead. This topic is discussed at Wikipedia:Possibly unfree images/US government portraits. Thuresson 14:34, 23 May 2006
  - It's quite clear from the text of the Copyright Act that paintings commissioned by the federal government are not public domain, as spelled out in the link Jiang points to above. Evrik continues to dispute this without presenting a coherent and logical argument for his lone position, let alone substantively responding to anyone else's comments. Postdlf 13:53, 23 May 2006 (UTC)[reply]
  - Evrik, in order for anyone to take you seriously, you have to demonstrate that you understand and can rebut the arguments for why commissioned paintings are ot PD-gov. Thus far, this hasn't happened, and the arguments on the other side are persuasive (I won't repeat them). It looks, unfortunately, like these images need to be deleted (unless we can get permission from the painter). —Steven G. Johnson 16:53, 23 May 2006 (UTC)[reply]
- Steve -I understand the arguments. The crux of the issue is this - when the paintings are commissioned, it is with the understanding that this is going to be a gift to the American people (and into the public domain). The artists know this when they are commissioned to do the work. This understanding is so ingrained in the process, that trying to find something that clearly states this online has been difficult. Sadly, it's much easier to misquote a small section of the law and misapply it to these paintings. I have made some queries about this, but have not received anything concrete yet. It is frustrating that no one who is an expert in the arae has been brought into the debate, just a few armchair attorneys. I am also amazed that two or three users, with limited knowledge of the law are going to try and force such a broad change. Since many of these same issues have been posted to the commons, it would seem to me that we need someone who is an expert and an authority. --evrik 17:16, 23 May 2006 (UTC)[reply]
  - Evrik, how do you know this? Have you seen it in writing? "Understanding" is not the way copyright law works...copyright law requires that transfer of copyright be made in writing. (§204: "transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing") You haven't provided any evidence to back up your arguments—bald assertions are not persuasive. (Can you give an example of someone who has "misquoted" the law?) Wikipedia has to be conservative and assume every image is copyrighted and unusable (except by fair use) unless we have explicit evidence to the contrary. —Steven G. Johnson 04:13, 24 May 2006 (UTC)[reply]
As I have said elsewhere, I spoke to the curator at the White House. Now please stop your wanton vandalism of all the portraits. --evrik 21:21, 24 May 2006 (UTC)[reply]

Image:Ghwbush.jpg,Image:HRC.jpg,Image:Lyndon B. Johnson - portrait.gif,Image:Hhover.gif,Image:Grace Coolidge.gif - as described here, paintings are not made by US gov. employees and therefore not generally PD. Fair use is dubious since there are probably photos in the public domain, and the articles are not about the painting or artist per se. —Steven G. Johnson 21:05, 24 May 2006 (UTC)[reply]
- As I said here, I spoke to Bill Alman, the White House curator, who said the following. "Generally, the portraits are property of the federal government and are in the public domain. In the case of the White House portraits, the photograph of the portrait may have copyright restrictions, but that it should be generally okay to use the images as long as the publisher of the electronic image is credited." These images are in the public domain, and have been inappropriately listed. As such, I am going to remove the PUI tags. Is there a copyright attorney in the house? --evrik 21:15, 24 May 2006 (UTC)[reply]
  - Evrik, you do not have authority to unilaterally remove PUI tags while the issue is still under dispute. —Steven G. Johnson 21:23, 24 May 2006 (UTC)[reply]
    - The instructions at the top of this page say that PD images can be removed. These are all PD. --evrik 21:30, 24 May 2006 (UTC)[reply]
      - But PD itself is disputed, and you've been reminded of this before. The purpose of this page is not to tag images for deletion; it is for promoting discussion on the status of an image. --Jiang 03:41, 25 May 2006 (UTC)[reply]
That's not exactly true. "Images are listed here for 14 days before they are processed." These images do not belong here. The images are PD, I have consulted with an outside expert. I recently went as far as to call the curator at the White House to ask for clarification (which supported my opinion). No one else has done that. The images were all correctly tagged to begin with and the instructions at the top of the PUI says that PD images can be removed from the discussion.

Instead of waging some sort of edit war and dragging a bunch of images into the dispute, I think it would be helpful if Jiang and stevenj would hold off until an expert weighs in, after all, it’s not as if the images are going anywhere. --evrik 19:31, 25 May 2006 (UTC)[reply]

- That is precisely what the existing framework will allow, if there is no consensus or legitimate cause for further deliberation. --Jiang 19:58, 25 May 2006 (UTC)[reply]

We need to follow up on this. The curator doesn't seem to be giving a precise legal opinion and may not be using the term "public domain" in the legal sense (colloquially it is often used to mean "available gratis to the public"), as evinced by his confusing statement that photos of the paintings may have copyright restrictions even if the paintings are "public domain". (Furthermore, permission to "use" the images is not enough for Wikipedia.) —Steven G. Johnson 21:27, 24 May 2006 (UTC)[reply]

I agree. Before we start a wholesale removal of the images, there should be some clarity on the issue. BTW, I trust the curator more than I do the users arguing back and forth here. --evrik 21:29, 24 May 2006 (UTC)[reply]
I agree that there is no justification for wholesale removal. The opinions of a handful of non-lawyers is hardly a sound basis for consensus in this matter. FWIW, IMO, once copyright is in possession of the federal government, it is effectively in the public domain. older ≠ wiser 22:52, 24 May 2006 (UTC)[reply]
- Um, Postdlf is a lawyer (as he pointed out on VP), and copyright law explicitly says that the government can own copyrights, which are not the same things as PD. Second, the whole point of listing something on WP:PUI is to foster discussion—no one is proposing that the images be removed instantaneously. —Steven G. Johnson 04:32, 25 May 2006 (UTC)[reply]
  - That's not exactly true. "Images are listed here for 14 days before they are processed." THAT MEANS DELETED. These images do not belong here. Postdlf is not a lawyer, he is someone who graduated from law school, and may have passed the bar. If Jiang and stevenj had been acting in good faith and trying to get at the truth, they would have actively sought out an expert opinion - that hasn't happened. Instead they have attempted to broaden the dispute and have listed many images that should never have been listed. --evrik 19:31, 25 May 2006 (UTC)[reply]
  - (to Steven after edit conflict) I missed where Postdlf said he was a lawyer--his user page only says he went to law school. Even so, unless a lawer has some background in in copyright law, their opinion is not worth much more than anyone elses. While the law says the government can receive the copyrights of materials it holds, I don't see how that is markedly different from it being PD. On what basis is the government to enforce copyright infringements on materials that it receieves? It seems to me a difference without any substantive distinction in function. older ≠ wiser 19:41, 25 May 2006 (UTC)[reply]
    - I will agree with you that we can use government owned images without getting sued (where it counts), but that is simply an opinion and still doesn't mean it is in the public domain, as claimed. Such cases would call for a fair use rationale, not a false claim of PD. --Jiang 19:58, 25 May 2006 (UTC)[reply]
- No justification? Mind backing that up? This is not a "wholesale" deletion of images. The images that have been mistakenly tagged are not many and can be easily replaced by public domain photographs, which IMO are a better reflection of reality than paintings. If the subject was important enough to have an official painting done of him, then he should have been important enough to have had government photographers take pictures of him.--Jiang 05:38, 25 May 2006 (UTC)[reply]
  - I think you have that backward, the most important people all have portraits that are commissioend to be given to the American people. Truth is Jiang, you hae been the one to keep bumping up to the next level and broaden the argument. rather than be concerend about winning, maybe you should be concerned about the truth.--evrik 19:31, 25 May 2006 (UTC)[reply]
    - What do you mean by "given to the American people"? We are speaking of the legal status of these images. Please discuss the law. I am interested in the truth here, not claiming to "understand" what all painters think.--Jiang 19:58, 25 May 2006 (UTC)[reply]
  - (To Jiang after edit conflict) No justification -- I've read the arguments on this page and it looks to me like a lot of uninformed opinionating. That is not a sound basis for action, IMO. older ≠ wiser 19:41, 25 May 2006 (UTC)[reply]
    - If the arguments presented are opinionated or mistaken, please refute them or demonstrate how they are uninformed. If you have evidence in the contrary, I'm interested in hearing...Instead, it seems to me that statements such as "This understanding is so ingrained in the process, that trying to find something that clearly states this online has been difficult." are clearly uninformed opinionating.--Jiang 19:58, 25 May 2006 (UTC)[reply]
      - The opinionating goes both ways as far as I'm concerned. I don't see any very convincing arguments for either side. I have an opinion on the matter, but I realize it is by no means definitive. Would it be appropriate to have a tag saying something to the effect that "this image is copyrighted, but that the copyright is held by the U.S. federal government and that it is believed that the image can be used freely"? older ≠ wiser 20:11, 25 May 2006 (UTC)[reply]
        I think there may be some validity to that argument; my own point above was strictly that these commissioned paintings are not in the public domain. I think before we go down that road, though, we need to do two things: 1) verify that the copyright in the painting at issue was actually assigned to the government (which by statute does not follow automatically with the transfer of the physical painting) instead of being retained by the artist; and 2) figure out what the hell we're talking about here—an explicit or implied license from the federal government, that works owned by it may be used for any purpose, or simply the belief (whether correct or not) that the government would never pursue a copyright infringement action? Without having done research on the first at the very least, I think we're in no safe position to simply assume we have free reign to use these. Postdlf 20:16, 25 May 2006 (UTC)[reply]
        
        Barring the issues cited by Postdlf, I think that could be workable (see e.g. Template:CrownCopyright for British government images).--Jiang 20:19, 25 May 2006 (UTC)[reply]
I'm okay with us doing further research. One thin I object to is the images being tagged. There is no need for that. Is anyoneone going to forget where they are until this comes to a resolution? --evrik 20:25, 25 May 2006 (UTC)[reply]
- Really the thing to do is delete the images for now, and reupload after we've established our right to use them. I'm sure you found them on the web anyway, so that shouldn't pose any great burden. Postdlf 20:33, 25 May 2006 (UTC)[reply]
  - Since most of them existed on wikicommons, this would be highly inappropriate. --evrik 22:04, 25 May 2006 (UTC)[reply]
    - Whatever, it's a copyright issue regardless of what site they're on, so someone familiar with their deletion procedures should deal with it there. Nothing of what I, or anyone else has said applies to the paintings for which their age alone would place them in the public domain, btw; those should simply be retagged {{PD-old}}. Postdlf 22:14, 25 May 2006 (UTC)[reply]

Sixth Round

Jiang has once again escalated this dispute by starting to tag images over on wikicommons. I justed posted about it over there.--evrik 18:36, 26 May 2006 (UTC)[reply]

Since I got pointed this direction from the dispute over adding and removing the tags, I thought I'd take a second to look in to the issue. I spoke with my congressman, a curator at the Ronald Reagan Presidential Library and an archivist at the National Archives. Each of them assured me that official photographs and portraits of U.S. Presidents (and other government officials), while being done by non-govenment employees were contracted in such a manner that rights were given to the U.S. government. In fact, since this had been questioned before, the NARA wrote a section into their regulations to cover the handling of Presidential records (NARA Regulations(36 CFR Chapter XII, subchapter E)) however, this only applies specifically to President Reagan and later. You can also easily look at the online websites of the presidential libraries of the pictures in questions and find that the libraries list all of these portraits as being in the public domain. Believe it or not, even photographs and portraits apparently full under the Freedom of Information Act as works of a President. Hope that helps. .:.Jareth.:. ^babelfish 19:23, 26 May 2006 (UTC)[reply]

I'm not sure I understand you completely. If the rights are transferred to the U.S. government, then the U.S. government should own the copyright. Are you trying to say that even though the rights are reserved by the government, the government explicitly permits these images to be freely used? If so, this would call for a new class of free use images. --Jiang 19:39, 26 May 2006 (UTC)[reply]

The U.S. Gov't would be the copyright owner according to what Jareth describes above. Then we just need to substantiate their express intent of unrestricted use of the images. The proper image tag would then be Template:CopyrightedFreeUse. I tend to think this is the reality; the trick is just documenting it to be sure. Postdlf 20:12, 26 May 2006 (UTC)[reply]

Per my understanding, as with other presidential records, the government explicitly releases these portraits into the public domain and even specifically states such on the webpages of the presidential libraries or other reference for the photos. For instance, in my example, the Ronald Reagan Presidential Library makes such a statement here. You can also often look up the particular photograph or portrait at the Library of Congress (older images are often housed there since Presidential Libraries became the fashion later); for instance, James Madison [10] is listed as having no known copyright restrictions. Since I haven't researched each image listed on this page, I cannot definitively say that each one falls under this provision. There have been outside works not done for the U.S. Government that, while widely used, are probably not public domain. Each image would need to be verified. .:.Jareth.:. ^babelfish 20:18, 26 May 2006 (UTC)[reply]

The Reagan photos appear to have been taken by gov't staff photographers, and so would be public domain on that basis alone. Any copyright on the 1828 James Madison image has long since expired. We need statements by the government that directly relate to the commissioned paintings. Postdlf 20:27, 26 May 2006 (UTC)[reply]

Jareth (and others). What we need at this point is evidence in writing that (a) the copyrights (and not just the physical portraits) were assigned to the US government and that (b) the US government grants permissions sufficiently broad for Wikipedia (permission to "use" the images is not enough). Please, no more posts of "my understanding is..." etcetera; that's not helpful. If you have corresponded with government officials, a copy (not a paraphrasing) of what they wrote would be very helpful here. —Steven G. Johnson 21:18, 26 May 2006 (UTC)[reply]

Given the breadth of photographs and portraits under question, as I stated before, each image would need to be verified. I was attempting to point people in the right direction for that sort of in depth research so these claims of "they're all free" or "they're all not free" and the associated edit warring could stop. If the precise location of the government regulation on presidential collections isn't "in writing", I'm not sure what is. But again, that would only be sufficient for those images verified to be part and parcel of said collections. Since that's not helpful, I'll go back to spending my effort elsewhere. .:.Jareth.:. ^babelfish 21:37, 26 May 2006 (UTC)[reply]

Jareth, I didn't mean to drive you off, I just wanted more specificity. I'm not claiming that "they're all not free," nor is anyone else—what we are saying is that we have to assume that they are not free in the absence of specific evidence to the contrary. Unfortunately, although your citation of the NARA act may seem like "in writing" to you, I notice that you didn't quote any actual words from the NARA act that state that copyrights transferred to the government (if that was indeed the case) are transfered to the public domain. Looking at the section of NARA that you specified, as far as I can tell nowhere does it state this. It mainly talks about public "access" to the records. The only (two) mentions of "public domain" are in reference to materials "placed in the public domain by the former President or his agent", as opposed to being placed in the public domain by NARA itself. In fact, if you read the definitions, it says that the "presidential records" are defined by 44 U.S.C. 2201 (1) - (5), which states:

(1)"Presidential archival depository" means an institution operated by the United States to house and preserve the papers and books of a President or former President of the United States, together with other historical materials belonging to a President or former President of the United States, or related to his papers or to the events of his official or personal life, and may include research facilities and museum facilities in accordance with this chapter;

(2) "historical materials" including books, correspondence, documents, papers, pamphlets, works of art, models, pictures, photographs, plats, maps, films, motion pictures, sound recordings, and other objects or materials having historical or commemorative value;

That is, the "presidential records" as covered by NARA include things like "books" and "works of art" merely "belonging to" the president, and does not require that the copyrights be assigned to the government. Thus, it's not surprising that NARA doesn't place works in the public domain (in the sense of copyright renounced), since in the case of random books etc. the copyright is owned by someone else.

I honestly hope I'm wrong, and that you or Postdlf or someone else can point out how I've misinterpreted the words of the statute. But we are at the point where we really do need specific words from specific statutes or government officials, and the burden of proof is on those who claim we have permission. —Steven G. Johnson 22:42, 26 May 2006 (UTC)[reply]

Curator comments

The curator seems to have a better grasp of copyright law than most participants to this discussion:

We need to follow up on this. The curator doesn't seem to be giving a precise legal opinion and may not be using the term "public domain" in the legal sense (colloquially it is often used to mean "available gratis to the public"), as evinced by his confusing statement that photos of the paintings may have copyright restrictions even if the paintings are "public domain". (Furthermore, permission to "use" the images is not enough for Wikipedia.) —Steven G. Johnson 21:27, 24 May 2006 (UTC)

The curator said:

Generally, the portraits are property of the federal government and are in the public domain. In the case of the White House portraits, the photograph of the portrait may have copyright restrictions, but that it should be generally okay to use the images as long as the publisher of the electronic image is credited.

The curator seems to have a very good grasp of US copyright law in that he is here making a distinction between the copyright in the work itself (which is in the public domain), and the copyright of a photo which may or may not be copyrighted depending on your view of the line of reasoning in Bridgeman Art Library v. Corel Corp. which held that exact photographic copies of public domain images could not be protected by copyright because the copies lack originality. Where there is signifant originality there would be copyright in the photograph seperate from the portrait.

The curator seems, very wisely, IMHO, to refrain from giving an opinion about the copyright of any reproductions (photographs) of the portraits while drawing the attention to the questioner that this could be an issue. He even very clearly identifies that the only copyright issue in question is whether one is claimed by the "publisher of the electronic image."

Thus, the portraits themselves being properly commissioned by the US and having the copyright transferred to the US govt - thus becoming "public domain" as identified by the curator are public domain works. The only issue is whether the photo itself is copyrighted.

This is also resolvable in one of 2 ways:

Determination that the photos lack sufficient originality, thus the photographer can not claim copyright in the photo of a public domain work (following Bridgeman)
Assuming that there is sufficient originality, so we need to find the copyright status of the photo seperate from the one in the portrait:
1. If they are photos posted by the US govt and copied to wikipedia from there - then those are clearly in the public domain as a work of the US govt.
2. If the photo was taken by a contributor - then we should refer to his license in uploading the work.

Personally, my review of the photos in question indicate that they clearly fall under the Bridgeman decision and the photographer can not claim a copyright in them as there is not the sufficient originality by the photographer. Trödel 16:16, 4 June 2006 (UTC)[reply]

This is completely off topic. The issue here is not over whether photographs of public domain works are copyrightable: it is not in dispute that they are not. We are trying to note that these paintings are not PD in the first place. The claim that 'the portraits themselves being properly commissioned by the US and having the copyright transferred to the US govt - thus becoming "public domain'" is invalid. Copyrights transferred to the US government do not automatically become PD: the US can hold copyright, per 17 U.S.C. § 105, "the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise."

We need proof that these paintings were specifically released into the public domain or are otherwise available for free use.--Jiang 02:38, 5 June 2006 (UTC)[reply]

No one doubts that the US govt can hold copyright; however, what you fail to acknowledge is that a copyright holder can dedicate the work to the public domain. The curator clearly indicated that has been the case here - and I am confused by your convoluted logic to try to explain away his clear language. I think we should be careful about copyrights and everything on commons MUST be freely transferable; however, when evidence (such as the that from the curator who is responsible for the works) is to the contrary to continue to press the view just looks, to me, like you want these deleted for some other reason than the protection of the WMF. Trödel 15:21, 6 June 2006 (UTC)[reply]

I acknowledge that the copyright holder may release a work into the public domain. However, this must done explicitly for each specific work and by an appropriate authority (does the curator have the authority to release these works?). The curator was attempting to make a statement of fact, not a delcaration. His statement was, "Generally, the portraits are property of the federal government and are in the public domain." (emphasis added) If this is the case, we need to ask him when and how these portraits became released into the public domain.--Jiang 03:06, 7 June 2006 (UTC)[reply]

ACK Jiang. Still waiting to hear back from Evrik. And let's please leave the poor curator out of it, who I'm sure had no idea he was resolving any major copyright issue... pfctdayelise (translate?) 07:46, 5 June 2006 (UTC)[reply]

Thank you Trödel for your cogent and thoughtful response. My great frustration in dealing with this whole issue has been showing that the portraits have been commissioned with the intent of donating them to the citizens of the United States, and to the public domain. --Evrik 14:51, 5 June 2006 (UTC)[reply]

I was away from a computer most of last week. I did send a letter to the Librarian of Congress, the White House curator and to the National Archivist asking for clarification. At this point all we can do is sit and wait until we get a response. Is there a copyright attorney in the house? --Evrik 14:44, 5 June 2006 (UTC)[reply]

- We can't wait forever. I think if there is absolutely nothing new to add to this case by the end of June, we should act. pfctdayelise (translate?) 16:15, 10 June 2006 (UTC)[reply]

Contacting the Library of Congress

This debate involves more than those tagged as EOP pictures, but will involve portraits of all government officials. Next week, I will contact the Library of Congress to try and get some clarity on this issue. _evrik 01:51, 27 May 2006 (UTC)[reply]

No, it only involves commissioned portraits, which so far we only believe are limited to paintings. Postdlf 02:26, 27 May 2006 (UTC)[reply]

Postdlf, could you possibly draft a short letter for someone (Evrik, whoever) to send to the LoC or whomever? I think it's important to ask the legal question in this case precisely, and it would be helpful if someone with your experience could do it. —Steven G. Johnson 02:53, 27 May 2006 (UTC)[reply]

Reaching out to the Government

I was asked to come take a look at this, and it is a lot to digest. Would those of you who have written to various organs of government please email me what you sent? I am going to be in DC in July and would like to have the benefit of your efforts to achieve clarity on this issue, one way or the other. As you know, a room full of copyright attorneys isn't likely to agree on anything, so I doubt a roomful of Wikipedians will as well. It goes without saying (but I will) that the point of the Free Culture Movement is to put as much content as possible in the PD, so the images can be "free" for everyone. We want to take full advantage of the liberality of the US Government where we can; the counterpoint is the issue of exacting photographic reproductions of portraiture in the UK, which presents problems. So, ladies and gentlemen, please email me your correspondence - bpatrick _at_ wikimedia.org. --BradPatrick 04:40, 20 June 2006 (UTC)[reply]

Reviving discussion

There has been no discussion on this for over two months now. When discussion was active, it was too often heated. I hope that a calm discussion based on the facts can follow, without insults or accusations from any quarter.

I would like to summarize the facts as I understand them. I don't think anyone disagrees with the following statements, but if you do, please say so and why.

Findings of fact:

Who owns the physical painting is irrelevant. What's important is, who owns the copyright (if anyone).
If an image is copyrighted, then it is not in the public domain, by definition. Put another way, an image is only in the public domain if no one holds the copyright.
The U.S. government may own copyrights. If a government agency owns the copyright of a painting, then that painting is not in the public domain, as #2 above states.
"Works of the United States Government" are in the public domain because they were never eligible for copyright in the first place.
If an artist creates a presidential portrait under contract, then that painting is not "a work of the United States Government", and it is copyrighted (unless the painting enters the public domain for another reason).

Can we all agree on the above points? If so, it would seem to logically follow that we can only declare a presidential portrait to be PD if we can show that:

either the portrait is "a work of the United States Government" because it was "prepared by an officer or employee of the United States Government as part of that person’s official duties" and was never eligible for copyright,
or the copyright holder (whether the artist or a government agency) specifically and in writing released all copyright claims to the work and therefore donated it to the public domain,
or else that the copyright has expired due to age.

All portraits that do not fit one of these categories should not be tagged PD. As I understand it, this applies to Image:Barbara Bush.jpg, Image:Clinton.jpg, Image:Fordportrait.gif, Image:Betty Ford.gif, Image:Elizabeth Truman.gif, Image:Lady Bird Johnson.gif, Image:Pat nixon.jpg, Image:Mamie eisenhower.gif, Image:HRC.jpg, Image:Lyndon B. Johnson - portrait.gif, Image:Hhover.gif, and Image:Grace Coolidge.gif. Incidentally, all of these images are housed on Commons, not on Wikipedia.

If you think that these images should be tagged PD, please explain which of the "findings of fact" above you disagree with. (Please comment below, rather than above, so that the discussion is not broken up.) – Quadell ^{(talk) (bounties)} 16:48, 29 August 2006 (UTC)[reply]

Agreed on all points. User:Fred Chess was responsible for closing the discussion on commons and removing the deletion tags. He should also be made aware of this discussion.--Jiang 02:22, 30 August 2006 (UTC)[reply]
Disagree on the findings of fact. They incorrectly summarize the situation. Unfortunately, I do not have the time to engage in this debate this week. I suggest that we ask Brad Patrick, to contact some copyright experts to give a more expert opinion. Oh yeah I think this discussion should move to, or remain on the commons. --evrik 03:56, 30 August 2006 (UTC)[reply]
- So you disagree, but you won't say why? If you don't have time to participate in the debate, the debate can continue just fine without you. It has been several months, after all. – Quadell ^{(talk) (bounties)} 14:38, 30 August 2006 (UTC)[reply]
The findings of fact are completely correct; the paintings are not in the public domain. Evrik has clamored for us to defer until "copyright experts" comment simply because he cannot support his position, not because we need to exhume Nimmer in order to understand anything (I am an attorney, btw). The meritless public domain claims should simply be set aside so we can resolve the actual issues relevant to whether we can use these at all: 1) did the artist in fact assign the copyright to the government as part of the commission; 2) did the copyright holder (whether the artist or the government) release the paintings for public use under an express license; or 3) is there a basis for claiming that the painting has been released for public use under an implied license? Postdlf 05:36, 30 August 2006 (UTC)[reply]
- Postdlf's comments that I have "clamored" and that public domain claims are "meritless" border on being incivil and are not assuming good faith. They are ad hominem attacks. The fact that he is an attorney has no bearing on this discussion, because he may or not may not have expertise in copyright. I have more pressing issues to deal with this month, and don’t want to have to engage in this debate right now. --evrik 15:49, 30 August 2006 (UTC)[reply]
I largely agree, although I am not sure if point 5 is accurate. In any case, the burden of proof is on those wishing to keep the paintings, ie argue for their free-ness, not the opposite. A substantial amount of time has passed and no convincing proof has been provided. Therefore, they should be deleted. If in the future they are shown to be PD, they can be undeleted. pfctdayelise (translate?) 06:32, 30 August 2006 (UTC)[reply]
I haven't followed this case, but I agree that points 1 to 5 expressed above are correct. For confirmation on point 5, see the CENDI Copyright FAQ list, section 4.0. Lupo 15:44, 30 August 2006 (UTC)[reply]
I believe, and I may be wrong, that all the images in question were deleted from the en.wiki. As such, this is not the appropriate place for the discussion. I am going to copy this discussion to the commons. --evrik 15:49, 30 August 2006 (UTC)[reply]

Commons:Commons_talk:Licensing#Portraits_with_unclear_copyright_status_from_the_U.S._Federal_Government

- You're right that Commons will have to delete them, but some of them are currently in use in Wikipedia articles. Postdlf 16:10, 30 August 2006 (UTC)[reply]
  - As the images only exist on the commons, we should hold the debate about the copyright there and not continue to have it in two places. --evrik 16:37, 30 August 2006 (UTC)[reply]