[WikiEN-l] Used-with-permission images, a modest proposal

Wed Jul 6 08:26:17 UTC 2005

Gregory Maxwell wrote:

>On 7/5/05, Theo Clarke <wiki at tignosis.com> wrote:
>  
>
>>My understanding from museum and gallery folks is that the photography is a creative act.  This is substantiated by the variations that are possible in the representation of the object (if only variations of intensity and hue).
>>    
>>
>[snip]
>
>I'm not aware of how it works around the world, but in the US we are
>very generous with extending copyright to photographs and in general
>to many non-artistic works which simply required a lot of effort to
>produce.
>
>And archival grade photography certainly does require a lot of effort
>to produce: There are several interacting axis of decision on which a
>compromise must be struck, mostly involving lighting.  In general
>lighting which operates efficiently enough to produce sufficient light
>generally tends to only operate at a few wavelegnths. Depending on the
>media used in the art this can cause a dramatically incorrect
>rendition of the colors.  So the photographer is often left trying to
>fix these compromises with their choice in film and the channel gain
>settings on the digital rig. It often requires specific knowledge of
>the behavior of the paints in use to get it right.
>
>In short, don't be so quick to discount the work. If we can grant
>copyright on any work which is purely function (as is some software),
>then there is no rational reason that copyright can not equally be
>extended to an archival grade photograph.
>
The claim that the photograph is of archival grade is a question of fact 
that would need to be proven in court.  In a large number of situations 
the quality of photographic paper and inks may be far more relevant that 
the photographer's professional qualifications.  Let's not inflate the 
role of professional photographers, when the work of a reasonably 
competent amateur would have sufficed for our purposes.  The work of 
amateur winemakers can be justt as good as anything that might be bought 
from a store shelf.

Our interest is in the information contained in the ancient manuscript.  
That information may involve more than just the words as a modern person 
would perceive them.  To a paleographer the original handwriting itself 
will be the basis of interest.

>As far as I can tell this position is strongly supported by caselaw in
>the US, and I think that it would be a fair position on Wikipedia to
>make an effort to preferentially make use of made-by-wikipedian and
>truly PD photographs of PD artwork when such alternatives are
>available.
>
>That said, the problem is big enough that it would be unreasonable to
>try to make a full correction at this time. I think we just need to
>start with the position that we prefer works made by wikipedians and
>will replace works not made by wikipedians with works by wikipedians
>as such choices come along.
>
I have no difficulty in agreeing that a photograph by a Wikipedian is 
preferable in most cases.  It is the most effective way of avoiding the 
problems that we have been discussiong.  At the same time copyright law 
cannot be used to keep information in otherwise public domain material 
from the public.  If the copyright claimant is concerned about the 
copyrights of his photographs, he would do well to allow a Wikipedian 
access to the original material for the purpose of making our own 
photographs. 

It is important to remember the significance of the effect on the 
copyright holder's market in establishing whether there is fair use.  If 
there is no market the presumption of fair use becomes much stronger.

Ec