Again: Commons:Threshold_of_originality says: "Not OK for most paintings. Even seemingly simple paintings consisting of geometric shapes are often copyrighted due to details that may not be immediately obvious to the viewer." If a Rothko painting is copyrightable (the example given at that page), so is this. Writ Keeper (talk) 17:55, 23 February 2024 (UTC)Reply[reply]
To expand: my point is not that "this was really difficult", my point is that "this was hand painted, and creativity and intent went into the brushstrokes, even if those details aren't immediately visible to the eye in a relatively low-res picture", which as I read it, is exactly what the threshold of originality is talking about when it says most paintings are not okay to upload to Commons. This isn't a bit of vector lineart. Writ Keeper (talk) 18:19, 23 February 2024 (UTC)Reply[reply]
Yann, no, that's specifically not my argument. Sweat of the brow is about effort without creativity, but what I'm saying is that this passes the threshold of originality that indicates this was a creative work, that, again, the relevant page says most paintings pass, even ones composed of simple geometric shapes. Writ Keeper (talk) 18:36, 23 February 2024 (UTC)Reply[reply]
Well, it was your argument above. Now you push forward an argument without giving any proof about it. There is obviously zero creativity in painting a date on a plain colored background. If you can't even acknowledge this simple fact, what can I say? If painted manually, there may be a lot of work doing it, but that doesn't create a copyright. Yann (talk) 18:43, 23 February 2024 (UTC)Reply[reply]
This has always been my argument, which is why I keep linking to the threshold of originality page. There is obviously creativity in choosing and hand-mixing paint colors (they're not all black, and certainly not all the same shade of black), there is obviously creativity in choosing how to paint the numbers and letters (they're not stenciled, and not always the same "font"). There is creativity in the brush strokes that make up the painting. Again, if a Mark Rothko painting, which looks like this, is copyrightable--the specific example given on the threshold of originality page to illustrate the point that most paintings are not eligible to be uploaded to Commons--why wouldn't this one be? Writ Keeper (talk) 18:56, 23 February 2024 (UTC)Reply[reply]
No, On Kawara used a standard font, so no creativity here. And again, "brush strokes" are not visible, so not creativity, etc. Your whole argument can be resumed to: there was a lot of work needed to create this, and this IS the "sweat of the brow" argument. You should read that article before writing here.
Yes, I know. I mention that because Writ Keeper uses that as an element creating a copyright. I also mean there is no copyright even in countries where an original font might leads to a copyright. Yann (talk) 08:19, 24 February 2024 (UTC)Reply[reply]
Keep "Authorship" you can't perceive isn't authorship. This is just text on a black background. There is no such thing as a color being a work of authorship; colors aren't copyrightable works (and besides, I've seen black before). The Rothko painting you mention has considerably more detail of an abstract and creative variety visible; there's no comparison here. Finally, I recall On Karawa's work was displayed without a copyright notice before 1978, so even if it were potentially eligible for copyright (it isn't, to be clear), it would be in the public domain for lack of notice. D. Benjamin Miller (talk) 01:56, 24 February 2024 (UTC)Reply[reply]
Delete. This is a picture that we do not have copyright to of a painting that we do not have copyright to. The argument that appears to be being made here is that this picture is not copyrightable because it is sufficiently low resolution that no copyrightable details can be made out. Whether or not that is actually true, I am not sure whether that could hold up in court, as, clearly if the file were high resolution enough, one could make out any imperfections and brushstrokes. Furthermore, I find it objectionable on ethical lines to copy other's work without permission based on the argument "your work isn't creative enough." If the work isn't creative at all, as some comments seem to imply, then why do we need a picture someone took of it? Just make a simple reproduction and use that. To me, the fact that we would rather use a photograph of the actual work rather than a reproduction indicates that the work is creative. FPTI (talk) 02:36, 24 February 2024 (UTC)Reply[reply]
Physical imperfections in a surface do not make something a work of authorship, nor do brushstrokes; only original creative effort does that. The file is not just in the public domain due to being low-resolution. It is an image of an uncopyrightable object. D. Benjamin Miller (talk) 02:43, 24 February 2024 (UTC)Reply[reply]
Why are brushstrokes not original creative effort? The choice of where to stroke, and how, and why, using what medium and what fidelity, are all creative choices. FPTI (talk) 02:58, 24 February 2024 (UTC)Reply[reply]
I know calligraphy is not copyrightable. This painting is not calligraphy. Nor am I saying the text or the font itself is copyrightable. I am saying that the actual painting- the mode of expression that this artwork is portrayed in- is copyrightable. In any case, if this painting is in no way creative, then it ought to be deleted from Wikicommons as it is simply text with no educational or creative value. FPTI (talk) 03:54, 24 February 2024 (UTC)Reply[reply]
The painting is legally the same as calligraphy, for the reason that medium is irrelevant with respect to copyrightability. Whether the strokes are of a pen or a paintbrush, the result is the same. Never mind the fact that much calligraphy is done with a paintbrush.
Read Compendium Chapter 330. Copyright only applies to works of a copyrightable sort, insofar as much as they are separable from the media in which they are expressed.
Look at Bridgeman v. Corel (holding that the duplication of public domain content, no matter the amount of skill and effort put into making a copy, so long as what is being reproduced with fidelity is not copyrighted, there is no potential for copyright in the copy); Batlin v. Snyder (copyright can only arise when there is a distinguishable variation, independent of the fact that something has been converted to another medium).
Delete per Writ Keeper & FPTI. Also this work of art is not just form. I believe in those days it was always part of a series of three: the painting, a postcard he send that day and a map on which he had pictured his route he walked that day. I just took a short search and seem to have found here (scroll to text "Stop seven was Santa Fe, New Mexico"). That day he was in Santa Fe, New Mexico, wrote a postcard to Konrad Fischer, a walked a path that day everybody can follow. Those works by On Kawara are so amazing. Every painting contains that promise, that there was such a specific event that day. In earlier discussion it was said, that this is "the idea" of the work and that doesn't fall under copyright. But I made up my mind about that: there is indeed that idea: in those days that On Kawara would walk a path, send a postcard and paint the day. But there is also a specific semantics in every of his works. And that semantics is part of the art work, and is an essential part op the creative elements of the work, what all together makes it that these materialized parts of his performance are under copyright. -- Mdd (talk) 01:49, 27 February 2024 (UTC)Reply[reply]
United States copyright law only protects works of authorship in a fixed, tangible and perceptible form.
"Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, 'from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." (17 USC 102).
The fact that On Kawara walked down a certain path on the same day as he made this painting (and other facts about his day) aren't part of the painting and don't have any relevance to the painting's copyright status.
The photo postcards and newspapers do contain copyrightable material. (However, they are often not displayed with the date paintings themselves.) Those copyrights belong to their respective authors. (17 USC 103). However, the postcards and newspapers aren't in this file, so their copyright status is not relevant. The copyright in one part of a collection or compilation of items does not affect the copyright status of any other part.
Sorry @D. Benjamin Miller: , your earlier argument "Authorship" you can't perceive isn't authorship, as if this should be the case here; and here ... "Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression... again as if the work Oct 31, 1973 (Today Series, Tuesday) of On Kawara is not. It is beyond my comprehesion.-- Mdd (talk) 21:27, 29 February 2024 (UTC)Reply[reply]
This is fixed in a tangible medium, but it's not an original work of authorship, because it contains no original authorship under US law.
The only thing present is the date written in white on a black background, which does not fulfill the originality requirement under US law.
The Copyright Office and the courts explicitly exclude from consideration for copyrightability all of the following factors:
Aesthetic value or artistic merit
Any symbolic meaning or significance
Any form of expression which is not directly perceptible
The author's inspiration or intent
The author's skill, experience or artistic judgment
The author's time, effort or expense in creating a work
Typefaces, handwriting, calligraphy
Information that is common property (including calendars)
All of these are listed in the US Compendium of Copyright Practiceschapter on Copyrightable Authorship. This document lists all the factors I just mentioned (and more) and provides explanations.
As you will read in that chapter, this image cannot be copyrightable under US law. The date (Oct. 31, 1973) is purely information that is common property. The design of the painted calligraphy/letterforms is ineligible for copyright. Symbolic meaning, artistic value and the artist's intent cannot lead to a copyright under US law. Additionally, the amount of skill, effort, experience, artistic judgment or time put into making the painting cannot lead to copyright under US law.
Any other elements (such as any creative account of On Kawara's daily activities, the newspapers, the postcards, etc.) are related only symbolically or by external reference, and are not perceptible in the fixed image presented here.
All I read is your interpretation, but where is the prove? Are there posters sold of the work of On Kawara's without their permission of the copyrights holder? Does the On Kawara admits there is no copyright on his work? I must have read 25 of your similar theories, but it doesn't tell me anything. Does US Law make European Law disappear? Or is it just you, who has the extreme believe that all work of minimal art should be without copyright?
I admit I know little about the common US copyright practice, and almost always stay out it. I also admit that I thought the Love sculptures by Robert Indiana are under copyright in the US, which if I look at Category:Love sculpture (Manhattan) they don't seem to be (yet I heard otherwise about ten years ago).
Also I am looking at this from the perspective of a European artist, who has studies Dutch copyright law extensively. So I just counted about 25 times, when I brought up my arguments, in response your start explaining about US law. There is no basic here. Also in the first case of the 100+ posters I have contacted the producer of the project. But what can I tell him? You can forget about your copyright anyway. We are going to give it away anyway (under PD or what), because we have the US law on our side (on our site)?
There is a simple solution that you find somebody else to give me some answers instead of keep repeating yourself. There was the first proponent who keeps bringing up false analogies... of maybe doesn't respond to the first remark I made about it. Also you didn't respond, but instead keep bringing up other arguments (false or not). As if you don't have to comment on the things you said.
It started with the comparison of the text on the work with the recording of two criminals in the back seat of the car. If none of you both take any responsibility for the things you are saying... how can I believe any word you are saying? -- Mdd (talk) 23:27, 29 February 2024 (UTC)Reply[reply]
On Karawa lived and worked in the United States. His work was first published in the United States. Wikimedia Commons is based in the United States. Only US law is applicable, and Dutch law is not relevant to this discussion — please stay on topic.
The criteria I just listed for you aren't an interpretation I created. They are the interpretation of the US Copyright Office. I linked you the document where the Copyright Office, a US federal government body, outlines these principles. You can read it for yourself. I've actually provided you with many links to precedents to back up what I have written, but you have ignored them all.
I find it pretty hard to believe that you have extensive knowledge of Dutch copyright law, considering that you've not dealt with the citations made by @Donald Trung, @Yann, myself and others of relevant Dutch and EU cases which deal with similar principles, and you've offered opinions which contradict those given on the Dutch government website. But that's not really the problem.
You have repeated your positions to me and others while dismissing rebuttals as "sheer denial." You claim that you must be right, since you are, after all, a European/Dutch artist (without citing any relevant legal sources). Meanwhile, you accuse me of making statements "on my own authority" — that is, of saying that I'm right because of who I am. I've never leant on my credentials (which shouldn't pass for an argument on this site); you're the one who first brought up my biographical details in an attempt to discredit me. You've also attacked me and other users on the basis of being American (side note: not all the people disagreeing with you are American, but it also doesn't matter what nationality anyone is), portraying us as a threat to Dutch cultural heritage. Of course, since we're American, we cannot possibly understand the wisdom of the (definitely relevant!) Polder model.
Of course, some others have chimed in, too, so I'm not the only one who's argued against you. And isn't it contradictory to say that I must respond to your Gish gallop of an argument, but that my credibility is damaged unless someone else responds instead of me?
Perhaps you will never believe any word I've written — nor, I guess, anything any legal source says. But that's your problem, not mine. Sorry I don't have any Dutch artists — since that's apparently the most important qualification here — I can call upon to back me up. D. Benjamin Miller (talk) 00:12, 1 March 2024 (UTC)Reply[reply]
To summarize and extend some more, the vote I gave was based on a range of assumption/experiences:
The assumption and that Wikimedia Commons sets global standards and as such national Dutch and European law does count as well
The works of On Kawara can be classified as minimal art and/or conceptual art
Under some conditions these works can be protected in Europe as well, as this blog mentioned, which in particular also mentions the Levola-case from 2018
So far I did have took a look at on case brought up earlier, and did comment:
With these artist I looked at the current community consensus on Wikimedia Commons: do we accept their copyright claim. Yes, we do.
Should we treat the work of On Kawara any different? And should we overrule the copyright regulation of the On Kawara foundation or any well established respectable Modern Art institute. I don't think so.
I just remembered the last time I went into this matter was in 2008, when I just had started an article about Systems Art at Wikipedia-EN, see here, where 3 out of the five illustrations where removed afterwards.
If this line of arguing counts for a Gish gallop as well, I am sorry about that. It is actually not half of the things I would like to bring up here. Thank you. -- Mdd (talk) 20:31, 1 March 2024 (UTC)Reply[reply]
Commons does not try to come up with a single standard for the entire world. We have to respect the U.S. law, due to where the servers and organization is, but otherwise we try to respect the law of the country of origin, but not others. If a work has expired in the U.S. and the country of origin, we host it even it if may still be under copyright elsewhere. If a work is below the threshold of originality in the U.S. in the country of origin, we host it, even if it is above the threshold elsewhere. For a Dutch artist, we would try to respect Dutch law. For an American artist, we would not. For a Dutch artist, we would not try to apply the Australian version of threshold of originality, etc. There will always be mismatches between countries. The U.S. does not subscribe to "if it's judged art, it's copyrightable". They do a much drier analysis of trying to identify copyrightable expression existing in a fixed medium, and find if any exists in the work claimed. That does not extend to ideas, or symbolism, or style, or other elements like that. For one example, Christo applied for a U.S. copyright registration on the wrapped Reichstag, which I assume would be copyrightable in Germany (and probably the Netherlands, and the rest of the EU). In the U.S. however, it was not -- as the Copyright Office ruled. I think we still delete photos of that here, since the U.S. was not the country of origin, and it was likely copyrightable there thus photos are derivative. But if a U.S. artist did the same in the U.S., we would allow photos as they would no be derivative works. I think that is all people here are saying -- based on their readings of U.S. court cases and copyright appeals (see here), that is (very consistently) the U.S. state of things. Given that Kawara was an artist living and working in the U.S., that makes the U.S. the country of origin, and thus the law we would look to. It's not an argument of what "should be" for other countries, but arguments based on what the law is. I have ready plenty of those appeals arguments, and the "minimalist art" arguments fall on deaf ears there. An artist can create uncopyrightable work, and an amateur can create copyrightable work (indeed, a child's scribble is usually copyrightable in the U.S.). There can be a "selection and arrangement" copyright -- so if a work consisted of say 10 particularly chosen dates painted like this, the particular combination is probably copyrightable, even if no individual date is, so copying the entire exhibition could be an issue. For a list of every year like those books, there is no creativity in the selection or the arrangement, thus no copyright on that either. I do not see any U.S. copyright registrations made by Kawara which would show perhaps which works could get a copyright. For a U.S. artist, we would follow the standards of U.S. law (thus the U.S. Copyright Office), so any arguments would need to be based on that law in particular, not from other countries (where you are likely correct). Carl Lindberg (talk) 21:15, 1 March 2024 (UTC)Reply[reply]
Comment: I do think we should consult with maybe the Wikiproject:Art on Wikipedia, some experts and maybe even the On Kawara foundation in New York. I admit I stopped reading the overwhelming comments in the previous discussion after I noticed hardly any of the issues I brought up where addressed. We could need a fresh pair of eye's here, and then maybe come to better understanding. -- Mdd (talk) 02:04, 27 February 2024 (UTC) / 15:52, 27 February 2024 (UTC)Reply[reply]
Comment on look alike uploaded: I just now noticed @Yann: uploaded the File:Oct 31, 1973 like On Kawara.png - a sample or lay out-sample of the art work of On Kawara date paintings. I must admit that earlier on, two weeks ago, I was under the impression that the work I used at COM:VPC was similar and not the real deal. Such a sample a like, I guess is a derived work that doesn't fall under copyright, due to the simple forms. I don't have a problem with that, as long as it is not presented as an image of the painting. It can also contain a lot more documentation as I have given in my previous comment. I am also aware that I am looking at this as an European artist and I guess a European point of view. I have used similar techniques before, but still think it should be limited. --- Mdd (talk) 00:56, 29 February 2024 (UTC)Reply[reply]
As mentioned above, US copyright law only protects the work itself in the abstract, not specific physical objects.
Similarly, owning a copyright in a work is totally separate from owning a physical object. For instance, you can own a copy of a book (that is, a physical object), but the author or publisher can own the copyright. Even if you buy the author's manuscript, that doesn't mean you own the copyright.
Similarly, someone owns the physical object (this canvas with paint on it), but there is no legal work of authorship in the image, so anyone can copy it. Only the work and not the object can be protected by copyright law. Under US law, nobody owns the work of authorship known as the Mona Lisa, someone does own the original painting, and you can own a specific copy.Nobody owns the work of authorship, but you can own a physical copy Legally, it does not matter which object your copy was made from. This was one of the conclusions of Bridgeman v. Corel. Whether the file File:Oct 31, 1973 (Today Series, Tuesday) On Kawara.png was made by photographing a canvas which On Kawara touched or by some other means makes no difference legally. D. Benjamin Miller (talk) 20:28, 29 February 2024 (UTC)Reply[reply]
I'm not sure I see anything copyrightable (in the U.S.) here. There can certainly be a mismatch between U.S. and European copyright thresholds, but this appears to be a U.S. work. Letters/numbers (and variations thereof) are not copyrightable. Even if painted, it is not necessarily copyrightable. That said, if there are details of specific brushwork actually visible, that could be different -- but I don't see them in this image. It is possible for a process to have copyrightable expression, provided that expression still exists in the final work. There was one U.S. case where a mezzotint copy was made of a PD painting; the mezzotint process included many small-scale creative decisions and the result was deemed to be a separate (derivative) copyright. Similarly, an engraving of a picture has its own copyright, as there are independent decisions on width of lines etc. in the engraving itself, separate from the original work. For this one, there does appear to be some sort of dotted pattern on the white numerals/letters. If those dots were the result of individual brush strokes, I could see the case for a copyright. If they are simply a result of the surface of what was painted on, then probably not (the Compendium specifically mentions that -- the Compendium II mentioned that calligraphy is not copyrightable, despite the effect achieved by calligraphic brush strokes across a striated surface). Not sure I know enough on this work to say. Carl Lindberg (talk) 14:56, 1 March 2024 (UTC)Reply[reply]
As a general rule, typeface, typefont, lettering, calligraphy, and typographic ornamentation are not registrable. 37 C.F.R. § 202.1(a), (e). These elements are mere variations of uncopyrightable letters or words, which in turn are the building blocks of expression. See id. The Office typically refuses claims based on individual alphabetic or numbering characters, sets or fonts of related characters, fanciful lettering and calligraphy, or other forms of typeface. This is true regardless of how novel and creative the shape and form of the typeface characters may be.
[...]
There are some very limited cases where the Office may register some types of typeface, typefont, lettering, or calligraphy, such as the following:
Pictorial or graphic elements that are incorporated into uncopyrightable characters or used to represent an entire letter or number may be registrable. Examples include original pictorial art that forms the entire body or shape of the typeface characters, such as a representation of an oak tree, a rose, or a giraffe that is depicted in the shape of a particular letter.
Typeface ornamentation that is separable from the typeface characters is almost always an add-on to the beginning and/or ending of the characters. To the extent that such flourishes, swirls, vector ornaments, scrollwork, borders and frames, wreaths, and the like represent works of pictorial or graphic authorship in either their individual designs or patterned repetitions, they may be protected by copyright. However, the mere use of text effects (including chalk, popup papercraft, neon, beer glass, spooky-fog, and weathered-and-worn), while potentially separable, is de minimis and not sufficient to support a registration.
Regarding the mezzotint artwork based on the public domain work that received new protection, well, I looked up the mezzotint way of creative paintings and you make very small choices that have a substantial effect on the visual aftermath of the painting, that is you can make 3 (three) different mezzotint versions of the Mona Lisa and they would be distinct based on individual choices you made. Likewise, with engraving which parts you choose to accentuate and how the end result looks is also creative labour as you can make very distinct looking engravings of the same artwork by choosing how to engrave. This is where "Even seemingly simple paintings consisting of geometric shapes are often copyrighted due to details that may not be immediately obvious to the viewer." applies. This isn't the case with this artwork for the very simple reason that no matter what technique is used to create the end result it would always constitute a very simple design that can very easily be re-created using many different techniques (heck, even using Microsoft Word). --Donald Trung 『徵國單』 (No Fake News 💬) (WikiProject Numismatics 💴) (Articles 📚) 20:59, 4 March 2024 (UTC)Reply[reply]
Correct, that expression has to be present in the final result for it to matter. A process may generate expression that you need to look closely to see, but if the process also ends up removing all those creative elements, then it doesn't change the copyrightability of the end result. BTW, the mezzotint case was Alfred Bell & Co. v. Catalda Fine Arts, Inc. from 1951. Carl Lindberg (talk) 22:01, 4 March 2024 (UTC)Reply[reply]
Keep Obviously too simple to get a copyright. It doesn't matter how it was made. On copyright matters, only the result is important. Yann (talk) 13:04, 23 February 2024 (UTC)
Delete. This is a picture that we do not have copyright to of a painting that we do not have copyright to. The argument that appears to be being made here is that this picture is not copyrightable because it is sufficiently low resolution that no copyrightable details can be made out. Whether or not that is actually true, I am not sure whether that could hold up in court, as, clearly if the file were high resolution enough, one could make out any imperfections and brushstrokes. Furthermore, I find it objectionable on ethical lines to copy other's work without permission based on the argument "your work isn't creative enough." If the work isn't creative at all, as some comments seem to imply, then why do we need a picture someone took of it? Just make a simple reproduction and use that. To me, the fact that we would rather use a photograph of the actual work rather than a reproduction indicates that the work is creative. FPTI (talk) 02:36, 24 February 2024 (UTC)
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Comment on the technique, most of the arguments above seem to argue that because the process used to create the painting was creative that the work is therefore creative enough to be copyrighted, but that's not how intellectual property rights and intellectual property laws work. A creative process is inherently uncopyrightable and can only be patented (a patent doesn't protect copyrights, it's an entirely different species of intellectual property law), the output of a patented process isn't automatically restricted by any copyrights. For example, .MP4 files aren't (currently) allowed at the Wikimedia Commons because of the unfree nature of the format, but the exact same files are acceptable in any other formats. The works themselves must be creative enough to be eligible for copyright ©️. If I use Microsoft Word to type "This is copyrighted" then that phrase won't get copyrighted under United States law despite the gazillion patents that the Microsoft Corporation has for the extremely intricate system that is Microsoft Office, the output is simply not creative enough despite being reliant on a lot of creative processes. --Donald Trung 『徵國單』 (No Fake News 💬) (WikiProject Numismatics 💴) (Articles 📚) 13:56, 1 March 2024 (UTC)_On_Kawara.png#c-Donald_Trung-20240301135600-Writ_Keeper-20240223122500){kind=link}
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