Commons:When to use the PD-Art tag

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This page is considered an official policy on Wikimedia Commons.

It has wide acceptance among editors and is considered a standard that everyone must follow. Except for minor edits (such as fixing typos, or bringing information up to date), please make use of the discussion page to propose changes to this policy.

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

Correct use of PD-Art: a recent US photograph found on the Internet of a public domain painting—mere full-frame technical reproduction.

PD-Art is not applicable since copyright subsists in the photograph by virtue of artistic choices available to the photographer such as framing, lighting and point of view.

This uses PD-old rather than PD-Art because the subject photographed—the horse and its rider—is not a work of art.

Introduction

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
• That copyright in the photograph has expired (i.e. that it is public domain); or
• That the photograph is not original enough to qualify for copyright protection.

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

Original work

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.

The U.S. case of Bridgeman v. Corel (1999)

In Bridgeman 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.

Other countries

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.

Why do we allow the PD-Art tag to be used for photographs from any country?

The position of the WMF

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."—Erik Möller 01:34, 25 July 2008 (UTC)^diff

Commons policy follows the WMF position

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.

This does not apply to photographs of 3D works of art

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.

So, what does the PD-Art tag mean?

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

• That the Commons file is a copy of a photograph taken by someone other than the uploader; and
• That the photograph was a mere record copy (a faithful reproduction) of a two-dimensional work of art which is itself in the public domain.

When should the PD-Art tag not be used?

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

• When you yourself personally took the photograph

In such a case

1. either (recommended option) use {{Licensed-PD-Art}} / {{Licensed-PD-Art-two}} with a {{PD-self}} or {{CC-0}} declaration
2. or simply add the PD tags applying to the work of art (eg {{PD-old-100}}) to show that the work of art is itself in the public domain.

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

{{PD-Art}} does not apply to 3D works of art such as sculptures, since the photographer was able to generate originality by virtue of a choice of viewpoints and lighting arrangements. Anything that could cast a shadow is excluded.

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

If the frame is 3D, the previous point applies and the image cannot be accepted on Commons. Please crop to remove the frame and upload a version which shows the 2D work of art on its own. If you find an existing PD-Art image including a 3D frame, please add the {{Non-free frame}} cleanup tag.

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

If copyright still subsists in the work of art but has been released under a free license, please use that license instead of the {{PD-Art}} tag.

• When the photograph has been released under a free license

In such cases use {{Licensed-PD-Art}} or {{Licensed-PD-Art-two}} - this ensures the photograph is reusable anywhere in the world, including jurisdictions where such photographs are definitely or possibly copyrighted. Note that these templates explicitly say that in many jurisdictions the photograph is not copyrighted.

Examples

Photograph of an Old Master found on the Internet

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

Photograph of an Old Master scanned in from a recently published book

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.

Photograph of an Old Master found on the Internet, but there is an explicit notice of copyright claim

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.

Photograph of an old stained glass window or tapestry found on the Internet or in a book

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.

Photograph of an old sculpture found on the Internet, or in a book

 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}}.

Photograph of an old coin found on the Internet

 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.

Copy of an old public domain photograph that you have scanned in from a recently published book

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.

Reusing content tagged with the PD-Art tag

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.

Usage examples

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.

Works whose authors died at least 100 years ago

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}}:

• {{PD-Art|PD-old-100}}

For the rare exception of unpublished and recently published works, see one of the other sections below.

Works first published in the United States

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

• {{PD-Art|PD-US-expired}}
• {{PD-Art|PD-US-not renewed}}

Works first published outside the United States before 1926

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

• {{PD-Art-two|license tag explaining why it is PD in source country|PD-US-expired}}

Example:

• A photograph of a 1911 English work whose author died in 1925 may be tagged {{PD-Art-two|PD-old-70|PD-US-expired}}

Works first published outside the United States that were in the public domain on the URAA date

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:

• {{PD-Art-two|license tag explaining why it is PD in source country|PD-1996}}

Example:

• A photograph of a Canadian photograph created in 1945 may be tagged {{PD-Art-two|PD-Canada|PD-1996}}

Works first published outside the United States that were not in the public domain on the URAA date

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.

Legal discussion

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