Commons:Deletion requests/File:Steve Montador.jpg

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File:Steve_Montador.jpg

[labot šo sadaļu]

Special case: image is properly CC-BY licensed on its Flickr source page, http://www.flickr.com/photos/bridgetds/5186637150/in/photostream/. However, the photographer and Flickr user clearly states on her user page, http://www.flickr.com/people/bridgetds/:

  • I request that you please not crop out my watermark. = ND.
  • SALE OF THESE IMAGES IS STRICTLY PROHIBITED BY THE NHL AND AHL. I DO NOT SELL MY IMAGES AND NO OTHER PARTIES ARE AUTHORIZED TO SELL THEM, EITHER. = NC.

If her statement "PROHIBITED BY THE NHL AND AHL" is true, hosting this image on Commons may expose re-users to litigation for copyvio. --Túrelio (talk) 08:35, 30 June 2011 (UTC)[atbildēt]

  • The statement "PROHIBITED BY THE NHL AND AHL" is likely incorrect. We have thousands of ice hockey player pictures from NHL games here taken by spectators. The NHL and AHL cannot control people taking pictures of ice hockey players from the spectator stands. Only the flickr account owner can do this...if they license their images as ARR or with NC or ND restrictions. Right now the image is licensed freely on flickr and I think the flickr owner has been told of some other images which are used on Commons but I don't remember which. Regards, --Leoboudv (talk) 08:46, 30 June 2011 (UTC)[atbildēt]
I've contacted the Flickr user and asked for clarification. --Túrelio (talk) 09:23, 30 June 2011 (UTC)[atbildēt]

Hi, this is BridgetDS from Flickr, the photographer who took the image. I know that there are a lot of my images on Wikipedia and I'm fine with that. I in fact changed my licenses to CC-BY so this could be done. However, it seems you all know more about CC licensing than I do, so feel free to educate me. It is true that my images cannot be sold - this is stated clearly on the back of my press pass. But hosting them on Wiki does not constitute a sale, so I don't see the problem? As for the derivatives, I don't care if people want to Photoshop the images or whatever, but it's a lot harder to maintain attribution when the watermark is cropped out. Am I not allowed to "amend" the license like this? It's difficult because CC does not give me the exact option I want, as far as I can tell. Thank you! -Bridget —Preceding unsigned comment was added by 76.21.241.203 (talk) 12:04, 30 June 2011 (UTC)[atbildēt]

Hi Bridget,
thanks for passing by and thanks for your efforts to allow for the upload of your images to Wikipedia. However, if you are by your status/employer/whoever definitively prohibited to use (or allow others to use) your images for commercial purposes (for example, printing on t-shirts, postcards, etc.), then - for your own "safety" - you should switch-back your licensing to CC-BY-NC (NC = non-commercial).
Commons as per its policy does require all uploads to be free for any kind of use, including commercial - at least per copyright. In case of portrait images, personality rights of the depicted may be an additional restriction for some kind of commercial uses, such as advertising. We do not allow Wikipedia-only uploads/licensing, as we serve not only the other Wikimedia projects, but the world.
Though this image was properly licensed at upload to Commons, we should not take advantage of your "mistake" as it may cause problems for you. Therefore I vote for  Dzēst. --Túrelio (talk) 12:24, 30 June 2011 (UTC)[atbildēt]
Agreed with Túrelio above. In addition, I would advise BridgetDS to license her images as CC-BY-NC-ND (ND = non derivative) if she does not want the watermark to be removed. Yann (talk) 12:37, 30 June 2011 (UTC)[atbildēt]
  •  Dzēst. I agree with Túrelio, the CC-BY-NC license is probably safest if your press pass limits the use of your photos for commercial purposes. In that case the image should be deleted from here, as Commons policy is not to allow non-commercial only media. Jafeluv (talk) 12:45, 30 June 2011 (UTC)[atbildēt]

     Jim . . . . Jameslwoodward (talk to me) 13:56, 30 June 2011 (UTC)[atbildēt]

A few more:

--Túrelio (talk) 22:22, 1 July 2011 (UTC)[atbildēt]

  • I'm tempted to say "keep". Based on the wording she used above, she is prohibited only from selling the images. I see no indication she is prohibited from using the images commercially -- those are two very different things. Powers (talk) 15:43, 30 June 2011 (UTC)[atbildēt]
I've invited Bridget again for comment. --Túrelio (talk) 16:22, 30 June 2011 (UTC)[atbildēt]

Hi, Bridget again. I appreciate all of your concern and help on this. As far as I know, the prohibition is only on selling the images, but to be safe I will probably take your advice and switch to a NC license. My understanding is that this would prevent the images from being used on Wikipedia itself, though, which is really unfortunate and not my intention. Is there any way to prohibit certain types of commercial use but not prevent the images from being used on Wikipedia? — Preceding unsigned comment added by 76.21.241.203 (talk • contribs) 16:29, 30 June 2011 (UTC)[atbildēt]

There are two possibilities here:
  • Your agreement with the NHL prohibits your selling the images, but allows you to license them CC-BY-SA (without an "NC"), so that others could sell them.
  • Your agreement with the NHL prohibits you from selling the images and requires you to license them only for non-commercial use.
The first seems very unlikely, as it would be meaningless -- it would allow anyone but you yourself, even a close friend or relative of yours, to sell them. Therefore, I strongly suspect that unless you use CC-BY-SA-NC you will be in violation of your agreement with the NHL. That will, as you say, preclude use on Commons and WP:EN unless a fair use argument can be justified on WP:EN.
@Powers -- a prohibition against sale is a restriction on commercial use as it would preclude many commercial uses -- "baseball" cards, tee shirts, posters, etc. So, I think these images fall outside our requirements.      Jim . . . . Jameslwoodward (talk to me) 17:20, 30 June 2011 (UTC)[atbildēt]

Bridget: Ok, thanks everyone. Will change to a NC license. Here is a list of all my photos on Wiki that I know of (incomplete but at least it's a start): https://docs.google.com/document/d/1BbK-zozyiQpzf7cn5bB4uUnRq-UAvj-UcR94OT-7w8M/edit?hl=en_US&authkey=CP7YqtYM

  • Comment - lots of sports venues claim copyright over any photos taken in their arena. I've always considered this to be a ridiculous claim of copyright. On my own uploads, I use User:UserB/Statement of permission to specify that there may be restrictions not related to copyright for reusing my photos. On Wikipedia/Commons, we are only concerned with copyright-related restrictions. I would guess/assume that the NHL restrictions are based on personality rights or some similar thing - you can't sell photos of a hockey player without paying $$$. But this is not a copyright restriction and so I see no reason not to  Keep. --UserB (talk) 18:20, 30 June 2011 (UTC)[atbildēt]
You are quite correct in the cases you describe. It is Commons policy to ignore venue restrictions on photography, see Commons:Image_casebook#Museum_and_interior_photography.
However, this is not that case. As I understand it, Bridget carries a press pass which forbids her selling the images. Although that is merely an extension of the venue policies that we ignore, it is one thing for us to allow anonymous user's to ignore museum rules if they wish and quite another to have Bridget, who has specifically agreed to the NHL's rule, to be identified on Commons as someone who is breaking her agreement with the League.      Jim . . . . Jameslwoodward (talk to me) 18:41, 30 June 2011 (UTC)[atbildēt]
  •  Dzēst - Bridgett clearly intended for the images not to be able to be sold. It makes me as sad as anyone, but that means that Wikimedia cannot host them. A court of law would likely look at the intent she had to not allow them for sale, not the fact that she chose a license which was strictly speaking incompatible with that, but which she understood it not to be. Magog the Ogre (talk) 00:53, 1 July 2011 (UTC)[atbildēt]

I guess I don't understand what "selling" a photo means. To me, it means "paying money for the right to use the photo", but I don't see how a non-NC license requires that activity to be allowed. The absence of the NC clause doesn't mean that a licensee is necessarily allowed to sell the photo, merely that the licensee can use the photo in a for-profit work. I say again: those are two very different things. Powers (talk) 01:32, 1 July 2011 (UTC)[atbildēt]

The whole question of what "non-commercial" means is actually not very well defined -- Creative Commons is discussing the issue here. However, I think you are missing something. I can take any properly licensed Commons image of a hockey player, make it into large posters, and sell the posters outside of the Boston Garden until the police stop me for not having a vendor's license. By anyone's standards that is a commercial use. I believe it falls squarely within "selling the image".
I think I understand that you would read "selling" in a much more limited way -- namely only Bridget selling the rights to the image. I can't imagine that the NHL would bother with such a limited restriction, because, as I outlined above, it would be trivial to evade its spirit.
I also don't understand your comment
"The absence of the NC clause doesn't mean that a licensee is necessarily allowed to sell the photo"
because it seems to me that the absence of "NC" means that all commercial uses must be permitted. If I am not allowed to sell the photo -- however you define "sell" -- then there is a restriction on my commercial use of the photo.
Finally, all CC licenses (including "NC") specifically require that sale of the work be permitted:
"Distribute" means to make available to the public the original and copies of the Work or Adaptation, as appropriate, through sale or other transfer of ownership.
If sale of the work (however defined), is not permitted, then no CC license can be used. You may ask, if that's the case then what does "NC" mean? It means, for example, that I can take an "NC" work from Flickr, modify it in some way, and sell the result to a non-profit for their educational use. I could not sell the result to a business for its advertising.      Jim . . . . Jameslwoodward (talk to me) 13:26, 1 July 2011 (UTC)[atbildēt]
Okay, I didn't realize that the CC licenses required for-profit distribution to be allowed. I'm still not certain that making posters out of an image and selling the posters constitutes "selling the image" as intended by the agreement, but apparently that's a moot point. It seems, then, that these images shouldn't be licensed with any CC license, should they? (And if that's so, I wonder what's the point of having them at all -- what can a photographer do with them if she can't license them freely and can't sell them?) Powers (talk) 14:53, 1 July 2011 (UTC)[atbildēt]
That is an interesting question. Certainly she could show them to friends and family. She could probably give them to a non-commercial publication for use under a limited license. Whether that contract would fail for lack of consideration (in the legal sense) is a question I can't answer, though my guess would be no, on the grounds that the consideration was the publication publicizing her work. She could post them on her own web site as bragging pieces. And so forth....      Jim . . . . Jameslwoodward (talk to me) 17:03, 1 July 2011 (UTC)[atbildēt]

 Question File:IMG 0114 Ramiro Peña.jpg and File:IMG 0594 Colin Curtis.jpg are MLB photos. Does NHL prohibit using baseball photos commercially? --UCinternational (talk) 05:30, 3 July 2011 (UTC)[atbildēt]

  •  Dzēst Some points:
    • BridgetDS's contract is a non-copyright restriction that does not affect us. NHL is not the copyright holder and can only penalize BridgetDS for breach of contract, not prevent the licensing.
    • However, BridgetDS did not appear to fully understand the repercussions of the CC-BY license at the time at which she used it. This suggests leniency is warranted.
    • Although it is possible to create a custom license which is CC-BY modified to prohibit certain commercial uses but not others (a kind of partial CC-BY-NC), it is not possible to prohibit any type of commercial use and still be compatible with Commons:Licensing and our mission. Nor is it clear that such a contract would adhere to the terms of her contract.
  • If BridgetDS says here that she is willing to undertake the legal risk of releasing the works under CC-BY or CC-BY-SA and breaching contract, I'll vote to keep, otherwise delete as a personal favour. Dcoetzee (talk) 03:46, 4 July 2011 (UTC)[atbildēt]
While in principle I could agree with you -- as I said above, this is much the same as museum restrictions on photography of their works, which our policy is to ignore as being between the museum and the photographer. In many places those restrictions could not be enforced because the museum would have to prove that the photographer was aware of the restriction. Also, in many cases the museum would not be able to identify the photographer.
However, this is more than that. As I understand it, Bridget has explicitly agreed to the restriction and has admitted here that she is aware of it. Therefore anyone using the images commercially must run the risk that the NHL will take action against her and them, on the grounds that they knew (from this record) that the images had a clouded license. While that action might not succeed, it could certainly be a costly nuisance.
Therefore I come down on the side of delete even if Bridget is willing to take the risk.      Jim . . . . Jameslwoodward (talk to me) 11:50, 4 July 2011 (UTC)[atbildēt]
  • Comment, first off, a great thank you to Bridget for her willingness to donate these images. It is a shame that, at the very least, this will not continue. As far as the images already uploaded, I understand the delete rationale. We don't want an imperfect understanding of CC to have any unintended negative consequences for her. However, I wonder if it may be useful for her to ask whoever is in control at NHL Media if they are willing to allow the current images to stand as is - knowing there is some risk of commercial utilization - on the understanding that (1) we won't use any further images, and (2) if they refuse, we will take down the existing photographs? Resolute (talk) 13:53, 4 July 2011 (UTC)[atbildēt]
  • Question I noticed that there was a mention of using these under "Fair Use" as a possibility. Would it be possible to come up with some kine of special fair use template or link to a commons page stipulating that these images can be used under a fair use. Though I only have a very basic understanding of fair use I'm not sure these would stand up to the high standards Wikipedia uses. Especially considering that some pages have multiple images such as 58th National Hockey League All-Star Game which has 3 such images (Staal, Chara, & Sharp) and while each one helps to illustrate an individual discussed in the text it is most likely not enough for the usual fair use rational. As Such if there were a special template grandfathering in these images since the photographer has no issues with them being on WP and it's only a second hand selling issue. Marking them as Fair use would keep the copyright in tacked and alleviate responsibility/blame from her. While it would be nice to keep all of her images that have been uploaded to the commons (which is over 1,000) I would propose that only the ones currently in use on pages and no new images are given this grandfather clause for fair use. I ask because quite honestly a lot of these pictures are going to be difficult if not impossible to replace. While WP:Hockey has had less troubles getting pics of star players its the second tier, minor leaguers, and retired or soon to be retired players that seem to be an issue which several of these are. Plus taking into account that these are great photos for infoboxes as apposed to someones back or far away grainy in arena shot. I don't know how easy it is to move pictures from the commons to WP but if there can be a special clause included for theses I would be willing to create a master list of images that are by BridgetDS currently in use and upload them individually if needs be.--Leech44 (talk) 18:00, 6 July 2011 (UTC)[atbildēt]

Deleted: it's a pitty, but I feel we don't act responsible if we keep them Jcb (talk) 10:19, 7 July 2011 (UTC)[atbildēt]

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