Commons:Deletion requests/File:Kirk Alyn as Superman in a publicity still from 1948.jpg

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This deletion discussion is now closed. Please do not make any edits to this archive. You can read the deletion policy or ask a question at the Village pump. If the circumstances surrounding this file have changed in a notable manner, you may re-nominate this file or ask for it to be undeleted.

File:Kirk Alyn as Superman in a publicity still from 1948.jpg[edit]

No evidence of non-renewal, and taken from an online source. The year is not correct, this is a still for "Atom Man vs. Superman" from 1950.[1] Move to the English Wikipedia as fair use, unless evidence of PD status can be located. - Reventtalk 08:48, 18 January 2017 (UTC)Reply[reply]

Kept: Publicity stills were rarely copyrighted. This would have been renewed in 1978 or later. The USCO database does not show it. .     Jim . . . . (Jameslwoodward) (talk to me) 16:02, 25 January 2017 (UTC)Reply[reply]

File:Kirk Alyn as Superman in a publicity still from 1948.jpg[edit]

Per COM:CHAR. The copyright on the Superman character does not expire until 2034. Nosferattus (talk) 21:30, 25 November 2023 (UTC)Reply[reply]

  •  Keep There can't be a copyright on a picture of a man wearing a T-shirt with a S, since the logo itself is too simple to have a copyright. Yann (talk) 21:33, 25 November 2023 (UTC)Reply[reply]
@Yann: Then how do we all recognize this image as "Superman"? Clearly it is more than a man in a T-shirt with an S. Nosferattus (talk) 22:27, 25 November 2023 (UTC)Reply[reply]
What is your opinion of File:1951Superman002.jpg. Nosferattus (talk) 22:47, 25 November 2023 (UTC)Reply[reply]
  • This is a complex issue with competing arguments made in United States courts. Do the "character rights" allow claw back from the public domain of existing images, or do character rights prevent new media from being created that depicts aspects of the character that only appear in works that are still under an active copyright. For instance Superman has superpowers that were not written into the character until much later than the character's first publication on April 18, 1938. These issues will be more in the news in January when the first images of Mickey Mouse, from Steamboat Willie, enter the public domain. Remember that copyright was extended to 95 years in the Mickey Mouse Protection Act on 1998. --RAN (talk) 22:21, 25 November 2023 (UTC)Reply[reply]
This is well-settled jurisprudence in the United States:
  • Siegel v. Warner Bros (2009)
  • Metro-Goldwyn-Mayer, Inc. v. American Honda Motor Co. (1995)
  • DC Comics v. Mark Towle (2013)
  • Warner Bros. v. AVELA (2011)
If this image only depicted aspects of Superman that were public domain, it would be a public domain image, but there are no aspects of Superman that are public domain yet. Nosferattus (talk) 22:39, 25 November 2023 (UTC)Reply[reply]
You are mixing up several concepts. It is not allowed to create a movie or a book or a cartoon with Superman, but that's equivalent to a trademark. You can't copyright the idea of Superman, and you can't copyright simple things, like a T-shirt and File:Superman logo 1940.png. Yann (talk) 23:18, 25 November 2023 (UTC)Reply[reply]
@Yann: No I'm not mixing up several concepts. This is about copyrights, not trademarks, specifically character copyrights. And I'm not talking about the "idea" of Superman, I'm talking about an actual depiction of Superman: A white, clean-cut, muscular man with black hair curling in the front, wearing tights with the Superman logo on it and a cape. That combination of characteristics constitutes a creative work that is copyrighted (even if the Superman logo itself is too simple to be copyrighted). I guarantee the Columbia Pictures film serial had to pay a copyright licensing fee (as well as trademark licensing) to whoever created Superman. If they didn't they would have been sued just like Honda Motor Company was for using a James Bond-like character in an advertisement (under copyright, not trademark). Nosferattus (talk) 06:43, 26 November 2023 (UTC)Reply[reply]
Below is a quick summary of the settled United States case law: --RAN (talk) 04:53, 26 November 2023 (UTC)Reply[reply]
  • Metro-Goldwyn-Mayer, Inc. v. American Honda Motor Co. involved Honda using a knock-off version of a James Bond like character in an advertisement. The James Bond movies were under an active copyright. It does not involve clawing back expired copyrights from images that have lapsed into the public domain. It is more about how close you can be to a copyrighted character without infringing that copyright. It was ruled not a parody, which would have been fair use. --RAN (talk) 04:55, 26 November 2023 (UTC)Reply[reply]
  • DC Comics v. Mark Towle involved selling an unlicensed replica of the Batmobile designed by Dean Jeffries. It does not involve clawing back expired copyrights from images that have lapsed into the public domain. It is more about selling unlicensed merchandise. --RAN (talk) 04:55, 26 November 2023 (UTC)Reply[reply]
  • Siegel v. Warner Bros. Entertainment Inc. was about who owned the Superman character and is more about contract law. Siegel believed he still retained some rights to the Superman character he created and Warner Bros. argued it was a pure "work-for-hire". It does not involve clawing back expired copyrights from images that have lapsed into the public domain. --RAN (talk) 04:55, 26 November 2023 (UTC)Reply[reply]
    • Arguing that this image is public domain because no case law applies to it unless it is a case about a public domain image is a tautological argument. Nosferattus (talk) 07:27, 26 November 2023 (UTC)Reply[reply]
      • No silly! That is exactly how United States law works. We use existing law until overturned by a higher court, or a new precedence is made in case law. We apply current copyright law concerning publicity stills that were put into the public domain by the creators by not including a copyright symbol and the year. Registration and renewal affected images, to some degree, all the way up until 1989. Film and television companies wanted the images reproduced as broadly as possible without having to pay advertising dollars, so they distributed the images without a copyright so that they would be reproduced in newspapers and magazines. If newspapers and magazines had to confirm copyright status or pay a licensing fee, they would not reproduce the images. They would expect to be paid in advertising dollars. It was a mutually beneficial relationship. --RAN (talk) 19:13, 26 November 2023 (UTC)Reply[reply]
  • Warner Bros. v. AVELA is the only relevant one, it involved taking the images from the public domain publicity stills and selling t-shirts with characters cut and pasted from those public domain publicity stills. The t-shirt company combined the public domain images with the "character’s signature phrase from the [still under active copyright] movie". "the scope of the film copyright covers all visual depictions of the characters, except for any aspects of the characters that were injected into the public domain by the publicity materials." This is the exact opposite of what you are arguing. --RAN (talk) 04:55, 26 November 2023 (UTC)Reply[reply]
  • @Richard Arthur Norton (1958- ): The "publicity materials" in Warner Bros. v. AVELA were all published before the first copyrighted appearances of those characters, so yes, in those cases aspects of the characters were injected into the public domain. If the first appearance of a character is in a validly copyrighted work, all subsequence appearances of that character are copyrighted until the copyright of the initial work expires, even if those works are otherwise in the public domain. There is no such thing as "clawing back" any copyrights. Either the character is validly copyrighted or it isn't. And if it is validly copyrighted, any derivatives are also subject to those copyrights even if the specific depiction would otherwise be public domain. Please read the actual court cases if you don't believe me. Nosferattus (talk) 06:24, 26 November 2023 (UTC)Reply[reply]
  • Thanks for the references. The key word in this court case is "extracted". As I said, it is not allowed to use the representation of the character somewhere else. However the original material remains in the public domain. That's exactly what our pictures are here. Otherwise, if we follow your argument, we will need to delete images such as File:The Wizard of Oz Margaret Hamilton Judy Garland 1939.jpg. Yann (talk) 09:21, 26 November 2023 (UTC)Reply[reply]
  • I think the key word was "combined. The extracted images were combined with active copyrighted catchphrases that only appeared in the film, and did not appear in the public domain publicity stills, like "Toto, I've a feeling we're not in Kansas anymore." Same with Superman, we can't combine the images with phrases or superpowers that only appear in the active copyrighted films and television series to create a new work,. We cannot add "Faster than a speeding bullet! More powerful than a locomotive! Able to leap tall buildings in a single bound!" to the public domain image. Also read the Sherlock Holmes versus Enola Holmes debate. The first Sherlock Holmes stories are public domain but some aspects of the character only appear in later works that are still under an active copyright. All these cases involve creating a new work that uses aspects of a character that only appear in an active copyrighted work. It does not involve clawing back expired copyrights from images that have lapsed into the public domain. We also have trademark issues that are related, Disney has trademarked Steamboat Willie as their 100th anniversary logo. You can't misrepresent a trademark. A logo may be in the public domain, but I am limited in how I reuse it, I cannot misrepresent the company, for instance by implying the company endorses or sponsors me, by adding it to my user page in a way that misrepresents the company. We also have restrictions on other images we host called "personality rights". There are also local restrictions on reuse of images of royals under Lèse-majesté laws. I see no legal reason why these public domain publicity stills need to be deleted, and those deleted in the last debate should be restored. --RAN (talk) 15:22, 26 November 2023 (UTC)Reply[reply]
  • @Richard Arthur Norton (1958- ): Yes, but in cases such as logos and personality rights, we are talking about non-copyright restrictions. Here we are talking about copyright restrictions. In particular, the creation of derivatives is extremely restricted and legally perilous for reusers. The closest analogy is probably de minimus, but the restrictions here are more severe and more likely to result in being sued. If we are going to host such images on Commons (which I don't think is a good idea), they should at the very least carry prominent warnings. Nosferattus (talk) 15:58, 26 November 2023 (UTC)Reply[reply]
Agreed that the Warner vs Avela is really the only relevant case among those cited, and it has lots of guidance, though not sure there is something directly on point. They do note there is a "spectrum" of character copyrightability, and the category of cartoon characters often is cited as the paradigm of distinctiveness. Publicity materials published before the films were not enough to establish a character copyright (or their visual aspects, in the case of Gone with the Wind and The Wizard of Oz, which were films based on books). The publicity materials, which all came out before the movies, were therefore not derivative of anything and were public domain. The movies (and first short film, for Tom and Jerry) established the characters. However, with respect to Gone with the Wind, the publicity material images are far from the cartoon-character end of the spectrum of character copyrightability. There is nothing consistent and distinctive about the publicity material images of Vivian Leigh as Scarlett O’Hara and Clark Gable as Rhett Butler. They certainly lack any cartoonishly unique physical attributes, and neither one is shown in a consistent, unique outfit and hairstyle [...] As a result, the district court correctly held that the publicity material images for Gone with the Wind are no more than “pictures of the actors in costume.”. They also note The characters in The Wizard of Oz lie closer to the cartoon-character end of the spectrum. There are many stylized aspects to the visual appearances of Scarecrow, Tin Man, and Cowardly Lion, and they perhaps might be considered as live-action representations of cartoon characters. They note however that the publicity materials did not consistently show those visual aspects, so there was no visual aspect of a character copyright created, and so they did not inject the characters into the public domain. But... they also ruled that Like the juxtaposition of an image and a phrase, a composite work combining two or more separate public-domain images (such as Judy Garland as Dorothy combined with an image of the Emerald City) also adds a new increment of expression of the film character that was not present in the separate images. Accordingly, products combining extracts from the public domain materials in a new arrangement infringe the copyright in the corresponding film. So it doesn't take much to still infringe, even using a PD publicity photo. That is not directly an issue here though.
In this case, we have a character that was previously established by a comic. In the court case, they were characters created by books, so there were no big visual aspects yet (and the Wizard of Oz book was public domain), so those aspects had not yet been created. In the court case, only the Tom and Jerry part involved material created after the visual aspects of the character was created, and all being drawings they were all derivative. The court case does not directly address when a live-action photo is derivative of a drawn character. The Gone with the Wind publicity material was not derivative of the book characters; they were just photos of actors in costume. So, this could simply be a photo of an actor in costume. It is certainly not derivative of any aspects of the character created by the film. On the other hand, the S symbol and hair styling do seem evocative of the comic book character. The S symbol by itself is probably not copyrightable, neither would be a hairstyle, but ... given the juxtaposition argument above, they are certainly two elements trying to conjure up the comic book character. On the other hand, we do allow cosplay photos -- where someone licensed the costume, and would expect people to wear it. Is this different? Certainly in any commercial setting there are obvious trademark issues, which were also part of the Warner v Avela ruling. The copyright is a closer call. Seems to me that logo became settled in 1940 or so representations, so at worst undelete in 2036, when those particular visual aspects of the character would be PD. It feels like a derivative work in some ways, but similar to cosplay. On the other hand, this is not a photo of "real life" and someone wearing an expected costume. Most of the character copyright of Superman is in the details of his story, but the trademarkable logo certainly evokes that character. Is that enough for copyright infringement too? Might be. The Gone with the Wind photos mention the lack of "cartoonishly unique physical attributes", but those may exist here. Carl Lindberg (talk) 16:46, 26 November 2023 (UTC)Reply[reply]
Carl Lindberg: Thanks for the detailed explanation. I would like trying to resume and precise what you write. Since the picture itself is in the public domain, and that the details of the character can't be under a copyright (simple logo + a muscular man with a sweatshirt), how is this different than cosplay (there is already the {{Costume}} in the file description?) I agree that derivative works of this would be very restricted, but there are plenty of cases like this on Commons (copyrighted works of art in FoP countries, de minimis cases, etc.). If we can't have this on Commons, we would need to delete all of Category:Superman clothing, and many many more files with a similar issue. Yann (talk) 08:54, 27 November 2023 (UTC)Reply[reply]
I don't agree that everything in Category:Superman clothing would have to be deleted, but everything in Category:Files depicting Superman would have to be deleted. Although the distinction between "people wearing Superman clothing" and "people actually depicting Superman" is subtle, I think it is a meaningful difference in the case of character copyrights. It also affects the potential commercial impact of reuse and thus the likelihood of being sued. Nosferattus (talk) 20:25, 27 November 2023 (UTC)Reply[reply]
I don't see any difference. Can you explain, preferably with legal backing? Yann (talk) 21:00, 27 November 2023 (UTC)Reply[reply]
The WMF does not get sued for hosting copyrighted images, they get a takedown notice, and the WMF lawyers decide whether to remove or keep, and then they post their ruling. We have a list of all the images involved and the WMF ruling. --RAN (talk) 16:11, 28 November 2023 (UTC)Reply[reply]
I'm talking about reusers, not the WMF. Reusers don't have the benefit of the DMCA safe-harbor provisions. Nosferattus (talk) 23:14, 29 November 2023 (UTC)Reply[reply]
  • I am not against having this decided by the WMF lawyers, however they usually only get involved once we receive a takedown notice. You can keep track of the WMF's DMCA takedown decisions here and whether they were kept or deleted, there are only six in the past two years: Commons:Office actions/DMCA notices--RAN (talk) 18:15, 26 November 2023 (UTC)Reply[reply]
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