- File:Squirrel Plush Toy.jpg (talk||history|logs|links|watch) (article|XfD|restore)
This image was nominated for discussion by someone who thinks the subject in it (a stuffed toy) is copyrighted. The admin who closed the discussion took things too quickly and deleted the image before a consensus could be reached. However, there is something I noticed in the nominator's rationale. Yes, the nominator believed the toy is copyrighted, but did not specify things like character or maker. It's like the nominator would regard any toy as copyrighted regardless how it's made. Red White Blue and Yellow (talk) 18:53, 2 January 2023 (UTC)[reply]
- Overturn and restore. Commons policies are not Wikipedia policies. Things we would delete are kept there, and things we would keep are deleted there. The "delete" side needs to make their case in Wikipedia policy, and it hasn't yet done so.—S Marshall T/C 21:06, 2 January 2023 (UTC)[reply]
- Overturn and Relist - The only proponent of deletion was the nominator, User:Whpq, and the only proponent of keeping is the appellant. That isn't much participation and is not a consensus. Robert McClenon (talk) 21:27, 2 January 2023 (UTC)[reply]
- Endorse. The image was said to breach copyright, and it isn't necessary to cite WP:COPYRIGHT to give that claim validity, it's necessary to explain why it breaches copyright. The delete argument was that the image was uploaded with a free license when it should not have been, due to copyright law. The closer found consensus to delete after discounting the comments forming the line of arguments of the keep side regarding copyright, i.e. copyrightability of toys and how de minimis being applied to a scene containing toys applies to an image of a single toy as well (obviously wrong and also an example of WP:OTHERSTUFF). When the argument of the opposition was discounted the only thing that was left was support for deletion, and the closer was right, or at least very reasonable, to consider the support arguments as correct on policy. Alalch E. 21:15, 2 January 2023 (UTC)[reply]
- But unlike Commons, we allow photographs of copyrighted works. We have {{Non-free 2D art}} and {{Non-free 3D art}} specifically for this purpose.—S Marshall T/C 22:36, 2 January 2023 (UTC)[reply]
- FFD is an excellent place to sort out whether an image wrongly tagged as a free image perhaps could have been and should be tagged with some non-free use rationale, yet after a normal period of discussion nothing was sorted out except for the fact that there was a copyright problem. This logically led to deletion. —Alalch E. 23:07, 2 January 2023 (UTC)[reply]
- FFD didn't think about fair use rationales. We can correct that at DRV though; we aren't constrained by the poorly attended discussion in the venue below.—S Marshall T/C 09:44, 3 January 2023 (UTC)[reply]
- A use rationale must be offered on one's own accord. If we instructed the applicant to provide an alternative use rationale it would resemble begging the question as we would to our outcome impart our individual beliefs about the likelihood of there being a certain appropriate use rationale, which we can only speculate about, and I believe that we should keep ourselves distanced, which is more in the spirit of a review process. Offerer of use rationale needs to offer one without any outside influence. —Alalch E. 10:33, 3 January 2023 (UTC)[reply]
- Good lord, really? Why is that?—S Marshall T/C 10:53, 3 January 2023 (UTC)[reply]
- Because the person who uploads a file knows the truth of where the file came from, and the circumstances that affect copyright, and we don't. FFD is a dialectical process of reaching a satisfactory level of assuredness that the use rationale really applies, it isn't about crafting the most fitting words that make it look like one applies. A healthy dose of skepsis is needed, and telling the uploader "well if your file for deleted for this reason, try some other rationale -- like this one" is not that. —Alalch E. 11:05, 3 January 2023 (UTC)[reply]
- Nope, I reject that utterly. The idea that DRV isn't allowed to help the applicant absolutely will not fly. The point of this and any other discussion is to make the encyclopaedia better, and we do need fair use images—particularly in cases like this where free content maximalists are saying US copyright law won't let us photograph a toy, for goodness sake. You'd expect any decent encyclopaedia that covers toys would have pictures of them.—S Marshall T/C 15:00, 3 January 2023 (UTC)[reply]
- The article where this was added doesn't seem to have a shortage of pictures of toys, no text was added with the picture and no assertion that this picture has any particularity about it, so your fears that it'd make us less of an encylopedia by not having pictures of soft toys seem to be unfounded. I also don't think anyone has said you (or anyone else) isn't allowed to help the applicant here, and indeed some have mentioned non-free content, though I don't think anyone is obliged to do so, and if meeting such criteria seems unlikely I can understand why anyone would be reluctant --81.100.164.154 (talk) 18:46, 3 January 2023 (UTC)[reply]
- Well, I don't know how else I would interpret
Offerer of use rationale needs to offer one without any outside influence except as a claim that we shouldn't help. How would you understand that? I don't think the NFCC are hard to meet for a toy, because it is apparently impossible to take a photo of a toy that isn't copyrighted. One image for each brand or variety that has an article would surely pass NFCCs #1-7 and #9, and could be made to pass #10. NFCC#8 is so vague that our decisions about it are hard to predict but I would argue that it shouldn't be hard to pass that in the circumstances.—S Marshall T/C 19:17, 3 January 2023 (UTC)[reply]
- Well the discussion was about what happened at FFD not about what should or shouldn't happen at DRV, and I would take it as that editors personal take, I understand the thinking we aren't trying to shoehorn stuff in which doesn't fit, but given that the same editor hasn't been jumping on those who have mentioned non-free here I would assume they aren't saying it's totally impermissible. If you think NFCC are going to be easy to meet for a toy, then great, but you can't dictate that others must see it likewise and therefore are required to attempt to do such. At times I see far more disservice done to individuals in the name of helping them when it's basically it just delays the inevitable and potentially just makes them even more frustrated with the process/policies involved. Given the article already has multiple pictures I can't see how it would pass the non-replaceable element absent some particularly defining feature, I haven't checked the other images but if your assessment is correct that they must all be under fair-use then we'd just be picking to use this one over any of the others, so again I wouldn't see the point in doing so unless there is something particular... --81.100.164.154 (talk) 20:05, 3 January 2023 (UTC)[reply]
- Right, I see that, but the fact that this image isn't needed in stuffed toy doesn't mean that it isn't needed anywhere in the whole encyclopaedia. There were reasonable alternatives to deletion!—S Marshall T/C 21:25, 3 January 2023 (UTC)[reply]
- Given that the project is focused on free content enabling reuse which is limited in many countries (no fair dealing permitted) I can't imagine the foundation would permit us retaining non-free images on the off chance that in the future we might be able to use such an image. I certainly don't think commenters in the FFD could be responsible for trying to hunt down other places where a non-free image might be appropriate, if they don't what are we going to do, keep the non-free image anyway - I really don't see the foundation standing by on that. Regardless I think it would pretty difficult to find such where the image meets that adding significantly to understanding and not-replaceable with a few image requirements. --81.100.164.154 (talk) 13:11, 4 January 2023 (UTC)[reply]
- In what article are you saying the image would be needed and meet NFCC, S Marshall (talk · contribs)? We can't keep fair use images around just because someone might use them somehow some day. Stifle (talk) 10:22, 5 January 2023 (UTC)[reply]
- Well, I don't know how I can answer that without being able to see it. Presumably it would be useful in an article about the manufacturer.—S Marshall T/C 12:42, 5 January 2023 (UTC)[reply]
- @Red White Blue and Yellow: Please advise the editor who closed the discussion that you have opened a DRV, as required by point 2 of "Steps to list a new deletion review" listed at WP:DRV. Thanks, Daniel (talk) 22:37, 2 January 2023 (UTC)[reply]
- Red White Blue and Yellow also did not complete step 4 either. — JJMC89 (T·C) 22:07, 7 January 2023 (UTC)[reply]
- Endorse (I nominated the file for deletion). Although Enwiki and Commons do have different policies, and files that do not qualify for Commons may qualify for use here, this image is not one of those cases. There was no argument put forth to use it as non-free content. It's usage in the stuffed toy article would not not have met WP:NFC#1 as there are freely licensed images available and in use in the article. The link to a commons page was useful for providing information about copyright of toys, and not an application of Commons policy. United States copyright law applies both for images here and on Commons, and the page from Commons provides direct information about toys and copyright under US law. Contrast this with the more general guidance we have for derivative work which is what this photograph is. The closer correctly weighed the arguments of our policy to follow US copyright law. -- Whpq (talk) 02:15, 3 January 2023 (UTC)[reply]
- I don't think the image is a derivative work since I did not alter the image or the toy itself.
- Another thing. If you think the toy is copyrighted, what is it really? You sound like you would call any stuffed toy copyrighted. Red White Blue and Yellow (talk) 02:40, 3 January 2023 (UTC)[reply]
- The picture was a derivative work of the toy. If I create a copyrighted painting and then you take a photograph of it, then my copyright still applies to your photograph. If you take a photograph of a copyrighted toy then the toy copyright still applies to the photograph. And yes, almost all stuffed toy designs will be copyrighted, unless they are old enough to be in the public domain. Hut 8.5 08:55, 3 January 2023 (UTC)[reply]
- Does copyright apply to a recreationally made toy? 104.172.112.209 (talk) 04:08, 5 January 2023 (UTC)[reply]
- Yes, but the maker of the toy (as distinct from the taker of the photograph) could grant a free licence on it. Stifle (talk) 10:21, 5 January 2023 (UTC)[reply]
- Does Commons go by different rules than Wikipedia which is why images of plushes in Commons don't seem to get nominated for deletion? 104.172.112.209 (talk) 12:21, 5 January 2023 (UTC)[reply]
- Commons only accepts free images, so either the images have been determined to be free or the images haven't been noticed as non-free and will deleted at some point. The detail on toys being subject to copyright was part of the commons guidelines. One correction on the point above about recreationally made toys, If I make a toy from scratch to my own design I could release it under a free license, if on the other hand I use a pattern or kit where someone else has designed it, there is a good chance the copyright would at least in part rest with the designer/manufacturer. --81.100.164.154 (talk) 13:16, 5 January 2023 (UTC)[reply]
- When a toy is recreationally made, it usually isn't copyrighted unless the maker applies for a copyright at some office. One exception, however, is a toy modeled after a copyrighted character, 104.172.112.209 (talk) 18:17, 8 January 2023 (UTC)[reply]
- And that is totally incorrect. As I not elsewhere under the Berne Convention "Copyright under the Berne Convention must be automatic;" -- 81.100.164.154 (talk) 08:37, 9 January 2023 (UTC)[reply]
- Endorse FFDs often don't get much participation and are often closed with fewer participants than would be acceptable at other deletion venues. The discussion was not closed early. The Keep comments made in the discussion focused on the existence of other images of toys, which isn't particularly relevant (different images are, well, different). Nor do I see anything here which would change the outcome. The fact the nomination didn't specify the toy manufacturer is irrelevant - copyright exists automatically unless explicitly disclaimed, which is extremely unlikely for a commercially produced toy, and even if the manufacturer has somehow released the copyright then the onus would be on the uploader to show that. While this isn't Commons, the Commons page linked in the nomination merely explains US copyright law, which the English Wikipedia is required to follow. There wasn't any claim of fair use and the image's use would not have been compatible with WP:NFCC. Hut 8.5 08:55, 3 January 2023 (UTC)[reply]
- Endorse. Consensus reached was correct, process was properly followed. I have consulted the image and agree it is necessarily copyrighted. Relisting would be process for process' sake. If someone wants to propose to use the image under fair use, which would be a high bar, they should say so and attach a draft rationale. Stifle (talk) 10:28, 3 January 2023 (UTC)[reply]
- Endorse under the Berne convention copyright is automatically granted on creation of the "work", there is no specific method of production etc. required. I have more sympathy for this sort of thing than many cases which crop up (though I can't see the picture) the rough form of toys is often dictated by the subject and different people/companies producing similar toys based on that underlying form makes it a harder pill to swallow. On the other hand we have various pictures which illustrate the article, so forgoing this one based on the information we have so far doesn't seem to be a particular detriment to the encyclopedia. --81.100.164.154 (talk) 18:46, 3 January 2023 (UTC)[reply]
- Eh, this is a place where Wikipedia does crazy things. But yes, such a picture could, in theory, be a copyright violation when put on Wikipedia. IMO (and IANAL) any attempt to sue Wikipedia for using such an image would be laughed out of court--it would be clearly fair use and cause no harm to the copyright owner. But Wikipedia has chosen to be conservative on the issue to the point of being ludicrous (as is the case here) and so deletion is probably appropriate as it doesn't meet our internal rules for fair use. Endorse is far too strong of a word as I think deletion is dumb here. But the deletion is in line with our (dumb) policies. Hobit (talk) 03:02, 4 January 2023 (UTC)[reply]
- Like I said earlier, the image was nominated at FFD by someone who thinks the toy is copyrighted but does not know the toy really. This shows the nominator would call any toy copyrighted, even something made by an ordinary individual who only makes toys as a hobby. Red White Blue and Yellow (talk) 23:31, 6 January 2023 (UTC)[reply]
- Yep. And as I understand it, that's correct. The issue is that a picture of such a copyrighted thing, in a context like Wikipedia would be fair use. But our rules for fair use claims don't allow us to claim fair use here. Which, as I said, I think is a dumb outcome. Hobit (talk) 17:56, 7 January 2023 (UTC)[reply]
- Closer comment Alalch E. explained the outcome very well. While c:COM:TOYS is part of a Commons guideline, it is an explanation of why such a photo is a violation of Wikipedia's copyright policy. — JJMC89 (T·C) 22:07, 7 January 2023 (UTC)[reply]
- Users like the nominator and closer like to talk about copyright and policy. However, they don't explicitly explain why the subject of the photo is copyrighted and not free-licensed. They would cite a page of rules, but their explanations don't not involve any description of the toy. Red White Blue and Yellow (talk) 02:22, 10 January 2023 (UTC)[reply]
- As copyright is automatically granted at point of creation, a copyright will exist there is no question about that. The question would be has the holder released it for free use, the nominator and closer can't prove a negative, i.e. that such a release definitely doesn't exist. The person wishing to use it should however be able to prove the positive much more easily, i.e. show the release from the holder. As a free content project the question of copyright is one taken seriously (some would argue too seriously, but the wikimedia foundation set tight boundaries here) so the default assumption is going to be that we can't use something unless we can specifically show different. -- 81.100.164.154 (talk) 13:25, 10 January 2023 (UTC)[reply]
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