Commons:Deletion requests/Template:Non-free graffiti

Some artists, for instance Miss-tic, already asked that pictures of her work should be removed from Commons ( http://jastrow.wordpress.com/2011/08/30/le-droit-dauteur-a-la-rue/ in French ). Thus, this templace is based on false assumption and should be removed. Léna (talk) 10:50, 4 November 2011 (UTC)[reply]

•  Keep. This template merely restates the policy at Commons:Image casebook#Graffiti. If you want to change the policy the discussion about it should be at Commons talk:Image casebook, where all previous discussions about it have occurred, not here. I would welcome you doing so, considering I am myself opposed to the present policy. Dcoetzee (talk) 11:24, 4 November 2011 (UTC)[reply]
•  Delete It seems to me that this template states: "every illagal graffiti is uploadable on Commons", that is untrue. Every image should be valuated case by case with COM:DW, that actually is the referring policy in these cases: Commons:Image casebook is not a policy, but an help page, and no previous discussions are needed for modify it.--Trixt (talk) 14:25, 5 November 2011 (UTC)[reply]
•  Keep This is shooting the messenger. We do have graffiti on Commons. Whether or not we should remove it is not connected to this template. (Nor is it connected to whether the vandals have asked that pictures of their work be removed.)--Prosfilaes (talk) 21:02, 7 November 2011 (UTC)[reply]
•  Keep Unless practice and the Image Casebook are changed. So long as we are hosting content that may put reusers in legal jeopardy, we have a duty to advise them. --Moonriddengirl (talk) 21:38, 7 November 2011 (UTC)[reply]
•  Keep This restates and links to current policy. Its use will alert editors to the graffiti policy, which should be read before uploading their own photos of graffiti. -- Trevj (talk) 06:49, 16 November 2011 (UTC)[reply]
•  Keep Needed due to the current graffiti policy. If you want to change the graffiti policy, this is not the right place to do that. If graffiti made by Magica De Spell or certain other artists can't be kept here, a reformulation of a portion of the template text may be needed, though. --Stefan4 (talk) 22:25, 29 December 2011 (UTC)[reply]
•  Keep (Weak Keep — see below) for as long as the Commons policy allows graffiti, in general cases, to be kept. Perhaps the wording of the template should be changed to make it clearer that a graffiti author may start an image deletion request and have a questionable image's copyright/Commons status determined on the merits. But, as far as I know, this template is the only one that documents this kind of Commons licensing status, and cannot easily be merged into any other type of Commons license-status template. --Closeapple (talk) 07:10, 2 January 2012 (UTC)[reply]

   Comment: Despite my statement that this should be kept: The template, as currently worded, makes the false statement that "Standing policy at Wikimedia Commons accepts these images". Commons:Image casebook is not Commons policy; it is a help file about typical behavior. I also notice that Commons:Image casebook#Graffiti doesn't actually cite any examples — this seems very odd, since it appears to violate Commons:Project scope/Precautionary principle, which is official policy — on Commons, we usually don't accept arguments like "the artist won't enforce his copyright because it will cause trouble for him too". I don't know the Commons policy about saying something is Commons policy; but on English Wikipedia, it's considered misleading (or possibly dishonest) to say something is Wikipedia "policy" when the statement does not actually have the official policy header on it. At the least, he template definitely need to be reworded. Commons:Image casebook#Graffiti should probably be improved also. (And if it turns out the whole thing is unsupportable, then we need to fix that!) --Closeapple (talk) 07:40, 2 January 2012 (UTC)[reply]

   Comment: Changing my original "keep" to "weak keep" and striking out "policy", for the reasons discussed in my comment above. The more I keep seeing graffiti deletion discussions using the word "policy" to describe Commons:Image casebook#Graffiti the more uncomfortable I become. I've seen someone throwing around the phrase "res nullius" in discussions also — ask the Australians how that ends up once someone actually pays attention. I think someone needs to go back through the edit history for Commons:Image casebook and see where this whole graffiti exemption claim came from. --Closeapple (talk) 09:11, 2 January 2012 (UTC)[reply]

  I certainly invite you to revise the template (the word "policy" was chosen for brevity rather than accuracy). Regardless of how the section was introduced, there have been numerous discussions on Commons talk:Image casebook supporting the current wording, which make me believe it would not be trivial to change this standing practice. Dcoetzee (talk) 12:27, 2 January 2012 (UTC)[reply]

Kept. Tiptoety ^talk 05:12, 4 January 2012 (UTC)[reply]

I stumbled across this template today and my first thought was "wtf". The whole things reads like "ahmm, yeah, we know what we are doing is wrong but we are doing it anyway". Imho clearly violates the licencing policy as commons is expected to host files that are free, not presumably free.

The justification for this template is rather weak. Commons:Image_casebook#Graffiti states, "that some believe, the artist would have difficulty enforcing their copyright since that would require a court to uphold the validity of an illegal act as the basis for damages or other relief against a third party." Ahm, is this the leading commentary opinion or is it just the beliefs of some? And even if that was true it would still violate COM:PRP.

Another problem with this template is that you often wouldn't even know if the graffiti is "illegal". Sometimes even if a graffiti is sprayed without consent the owner are ok with it (see example). Also in some cases graffitis are signatured ("tag") and proof of ownership may not be as hard as it seems (e.g. same style; witness as spraying may be done in groups).

This DR includes a proposed change of Commons:Image_casebook#Graffiti. If the DR is successful Category:Non-free graffiti (currently 336 images) should be reviewed. Maybe some pictures can be kept with with another rational (maybe fop for 2d works), the rest should be deleted.

A few words regarding the last deletion debate: Most people thought as long Commons:Image_casebook#Graffiti remains this template should remain as well (though quite a few people were not really comfortable with Commons:Image_casebook#Graffiti). That's why this DR also includes a change of this help-page. I left a comment at the talk page to invite interested people to this discussion, but there's no reason not to discuss the matter here. Isderion (talk) 23:02, 10 July 2013 (UTC)[reply]

•  Keep for the same reasons we kept Commons:Deletion requests/Files in Category:Victims of Communism Memorial in Washington. The statue in the USA is a copy of an illegal statue in China. If we delete images of illegal graffiti then all the ones of this copyvio statue would need to go as well.--Canoe1967 (talk) 23:19, 10 July 2013 (UTC)[reply]
•  Delete obvious violation of COM:PRP. darkweasel94 00:55, 11 July 2013 (UTC)[reply]
•  Comment: We should be specific about what the legal issue is here. The issue is not about artists that have a legal copyright but would attract trouble for themselves if they tried to enforce it; it's already clear that Commons considers those works copyrighted under COM:PRP. The main issue is that, in some jurisdictions, a person may be prohibited from pursuing any right that derives from breaking the law. In other words, when it comes to the full effect of the law, there may not be any effective copyright for illegal works. However, even in those situations, this would have a few holes:
  • Even though a physical copy is needed for a work to become copyrighted, copyright is in the intellectual content, not a specific physical copy. The artist could have other copies of this work in places where it is perfectly lawful. If any lawful copy of the work exists — particularly if they existed before the "vandalism" — it would become very hard to prove that the only right or market for that art was a result of the unlawful copy.
  • In some jurisdictions, the government or a crime victim can sue to obtain the property used in a crime, not just the property created by the crime. (For example, if there is a bank robbery, the government can file a court case to seize the getaway car, the guns, etc.) Even if the "illegal" artist could not claim copyright in court, the government or someone harmed by the vandalism could go to court and take legal possession of the art — maybe both the physical copy and the "intellectual property" of the work. The copyright might be "cleaned" this way, and usable by the new owner, even if it wasn't valid for the "criminal".

  I think we'd be right to assert public domain on graffiti from jurisdictions where it is clear that the graffiti artist has no legal right to control the product of, or things used in, an illegal act, except when someone someone sues to force a specific work out of the artist's hands. But we need to find court cases that actually establish where, if anywhere, copyrights can really become "zombies" (or even completely extinguished) through a criminal act this way. --Closeapple (talk) 08:27, 11 July 2013 (UTC)[reply]

•  Comment. This may be a long comment but worth reading. My dad bought some land with a 1949 Ford truck on it in BC, Canada, in the early 80s. The truck had an expired plate from the 70s still on the bumper. One day the truck was gone. Dad inquired and found that someone had traced the last owner through BC's well kept plate records. He contacted the owner, bought the truck, and had it towed. If dad had simply removed the plate this never would have happened as owner records through serial numbers would not have worked. w:Res nullius is mentioned above. It mentions abandoned property as 'finders keepers'. Without a signed work of graffiti this may be the same as the truck with no plate so we may wish to be cautious with signed works. As stated in earlier discussions this has never been tested in court in the USA where our servers are. Until it is tested the template is a warning to re-users that in the future we may delete some of these images. Our Com:PRP is based on existing copyright laws. Since there is no legal decision on graffiti then there is no copyright law on it at this point to base our policy on. Persons cannot claim any rights on illegal acts nor profit from them. See: w:Son of Sam law. Any court case would involve some sort of profit from a crime. It was also brought up that other works may exist that are legal and created before the illegal work. The Son of Sam law would still dis-allow any action on images of the illegal work.--Canoe1967 (talk) 14:19, 11 July 2013 (UTC)[reply]

Thanks for your input so far. One major problem still remains so far: How can you tell a illegal graffiti apart from a legal one? What if the owner gives consent after it was sprayed? Imho you often can't tell.

Also what Closeapple and Canoe1967 wrote is probably only true for some jurisdiction and it should be specified which one. The w:Son of Sam law for example seems to be a state law, so in other states the situation might be different. --Isderion (talk) 15:25, 11 July 2013 (UTC)[reply]

With File:EdwardSnowdenMural.jpg I located the area from the geodata and looked around the neighborhood in Google street view. It looks like a mess of illegal graffiti. I can't see a bus company that has been bad mouthed on their site being a nice guy to the local graffiti painters. They don't have email but someone local could phone them and ask.--Canoe1967 (talk) 16:41, 11 July 2013 (UTC)[reply]

The Canada story would not have taken place in e.g. the Netherlands, where nl:Natrekking would have prevented this. Note that Wikimedians all over Europe are connected to the servers in the Netherlands. Jcb (talk) 20:46, 11 July 2013 (UTC)[reply]

•  Comment There actually are some legal cases where the author of illegal artwork attempts to assert copyright. I'm not quite sure what conclusion we must draw from them, but here they are:
  • cour d'appel (appellate court) of Paris, 27 April 1934: artist Joseph Lacasse paints the walls of a chapel in Juvisy without the owner's authorisation. The court states the owner can destroy the frescoes because the owner's rights (abusus) outweighs the artist's rights.
  • TGI (district court) of Paris 13 October 2000 & appellate court of Paris 29 January 2002 (Aichouba v Lecole): a group of young people decorate with mosaics the walls of a squat. One day the owner decides to demolish the building. The artists sue for compensation on grounds of their moral rights, specifically the right of integrity. The district court of Paris decides the squatters aren't due any compensation because the artwork was unlawfully made. Yet the court grants two months' delay to remove the artwork themselves. The appellate court upholds the decision.
  • Kammergericht (appellate court) of Berlin, 8 January 2004 & Bundesgerichtshof (Federal Court of Justice), 23 February 1995: fragments of the Berlin wall decorated with paintings are sold without the artists' consent. The Kammergericht dismisses the artists' claim: in choosing the wall as a medium the artists couldn't possibly think they could gain anything else than public exposure or perhaps postcard sales. The BGH states that the artists retrain the right to disseminate their artwork even though they made it on another person's property, in this case the German Democratic Republic. Jastrow (Λέγετε) 17:43, 11 July 2013 (UTC)[reply]
    • The german case is not relevant, because graffiti in Germany is covered by FoP 2d
    • The French cases seem to imply to copyright and moral rights from illegal activities do exist, but that in the end the ownership rights outweigh the artist's rights. --Isderion (talk) 14:05, 12 July 2013 (UTC)[reply]

After looking into the several legal cases cited above and weighing the arguments presented in this debate against one another, it would appear that artwork created on a medium without the owner's consent cannot qualify for copyright. In a nutshell, the courts simply do not rule in favor of the graffiti artist; even if the graffiti artist was to assert copyright, the courts seem to either dismiss the case or (in the case of imminent destruction) rule in favor of the owner of the medium used. Taking into account the evidence laid out above, this license tag is probably okay for Commons. However, I do note that care should be taken in applying this tag. Any graffiti that is not verified by some credible source to be illegal (and/or taken in a country restricting FOP) cannot be uploaded to Commons, because as a (likely) sanctioned work, it becomes a derivative of non-free content. Naturally, should anyone find any new contradictory evidence, a new, special discussion should be initiated at COM:RFC to re-evaluate Commons' on illegal grafitti. -FASTILY 06:02, 22 July 2013 (UTC)[reply]