Commons talk:Transfer of copyright

Verbal transfer

Re this addition - the source given ([1]) states something different: An assignment of copyrights needs to be in writing in order to be effective; the assignor or a third person on behalf of the assignor has to sign it (s.90(3)). ... If the parties agreed only orally, the transfer will be ineffective ‘at law’. However, such an informal agreement may have the effect that the prospective assignee will be treated as the equitable owner of the copyright. That means that a transfer made orally will be enforceable if there is valuable consideration. This means exactly the opposite: a verbal transfer is only effective if there is a "valuable consideration" (some non-trivial amount of money, say). Rd232 (talk) 11:02, 21 December 2012 (UTC)[reply]

That is a general truism of contracts. There is no "valid" contract between parties unless there is a transfer of property. The point I intended to make could be re-phrased to avoid confusion, something along the lines that where there is no reasonable expectation of value (and therefore potential equity) of the photo or video created, then we (the Commons community) can accept media on a free release without any significant doubt. The expectation of value where the subject releases a photograph rather than the photographer may be created in cases such as glamour photography, newsworthy and historic events (where there is obvious commercial value), fan shots with notable celebrities or significantly digitally enhanced images where the photographer may have a likely expectation of credit or control over licence conditions. The common scenarios of amateur "please take my photo at this tourist site" or "please take my photo at this conference" have no significant doubt as to such expectations of the photographer versus the photograph owner who claims a transfer of copyright. --Fæ (talk) 11:17, 21 December 2012 (UTC)[reply]

I don't know that "reasonable expectation of value" is a concept that works. What you've written on the page sounds sensible but we don't have any source for it, and the only source says the opposite. It occurs to me that (as with the COM:PEOPLE UK issue), legal advice in this area might be a reasonable use of WMUK money... Rd232 (talk) 11:30, 21 December 2012 (UTC)[reply]

Possibly, though let's try and find some free sources first. There's no hurry, I'm happy to chip away at this for awhile and over Christmas I might go to JSTOR and elsewhere to dig away at some relevant sources. There are a number of lawyers about who might help out with some free analysis and writing to some of the email lists might unlock that channel. If it turns out that there is no decent case history, then a cautious but reasonable common sense view could apply, i.e. Commons removes files if there is any challenge from a credible claim from a photographer, or where there are demonstrable problems with the image content and details matching with the claims of the uploader (such as EXIF data or other versions found by internet searches). The nature of tacit or verbal transfer of copyright when there is no equity, is a problem in legal terms, as it is highly unlikely there is ever going to be any case law establishing precedent; this in itself is an indicator that our policy of the precautionary principle should support keeping images with no challenge from the photographer (and no other significant policy issue) for the benefit of open knowledge as there is no significant doubt in any legal sense.

It strikes me that in situations where the law is rather absent in terms of reference cases, then our own casebook would be a very useful way of taking this forward, possibly by extending Copyright rules by subject matter. --Fæ (talk) 12:12, 21 December 2012 (UTC)[reply]

Talking to a lawyer this weekend over a Christmas lunch, the point came up that rather than going down the route of considering the idea of commissioned works (as it is unpaid, with no expectation of payment, there always will be an absence of case histories to refer to), instead he compared it to giving a gift. By handing the camera back, without making any conditions, this is obviously a free gift with no expectation of payment. Should the photograph later on be valuable or be resold and the photographer who verbally or tacitly transferred copyright by handing the camera back then try to introduce new requirements for attribution or demand payment for commercial reuse, one would refer to available case history of gifts that turn out to be unexpectedly valuable, such as a second-hand broach that turns out to have real diamonds rather than paste. In these cases, as the gift is freely given at the time, all rights are considered waived. It was a good conceptual direction to take, and perhaps one or two legal cases on these lines might pin down this issue rather neatly. Thanks --Fæ (talk) 20:56, 24 December 2012 (UTC)[reply]

Interesting, makes sense. And illustrates the value of involving actual lawyers :) Rd232 (talk) 06:37, 26 December 2012 (UTC)[reply]

This is a great discussion, and I especially appreciate @Fæ: 's point: "By handing the camera back, without making any conditions, this is obviously a free gift with no expectation of payment." It would be very much in the interest of Commons to develop a clear policy around this; I suspect there will always be some grey area between "we believe the person clicking the shutter holds copyright" and "we believe the person making the request owns the copyright," but narrowing that grey area would have the very tangible benefit of reducing disagreements. I'm not a lawyer (in any jurisdiction!) but what Fæ said seems perfectly reasonable to me. Do you, and/or @Rd232: , want to outline some steps that might lead to encapsulating this principle (or something similarly clear and actionable) in a Commons policy? -Pete F (talk) 19:07, 17 July 2014 (UTC)[reply]

(Note, I just noticed that I spoke too soon -- reviewing the discussion below now.) -Pete F (talk) 19:08, 17 July 2014 (UTC)[reply]

Proposal to satisfy the Geni requirement and to avoid endless revert wars

Transfer by verbal agreement or contextual understanding

This is my proposed text:

Transfer may be legally recognized as a gift (a valid inter vivos gift), even where this is by a verbal agreement or an understanding by context, particularly in a situation of no financial consideration and physical transfer by passing a camera back to the owner.<ref>See Mirvish v. Mott, 2010 for the physical delivery (giving the camera back) being sufficient to be interpreted as delivering a gift.</ref> In order to have a valid ''inter vivos'' gift there must be evidence of an intent on the part of the donor to make the transfer, delivery of the gift and acceptance by the donee.<ref>http://www.lexisnexis.com/lawschool/study/outlines/html/prop/prop05.htm</ref> Written acceptance may be necessary under French law, but Anglo-American law acknowledges implied acceptance.

For example at a public tourist spot where someone offers their camera to a friend or stranger and informally asks them to help by taking their photograph, it is reasonable to consider this a transfer of copyright when the photographer hands the camera back to the owner/photograph subject, making a gift at that moment of the original photograph and its copyright, unless the photographer requests conditions such as asking to be credited or keeping the photograph private.

Geni's primary objection appears to be that the physical transfer of a gift is not sufficiently demonstrated by handing the camera (with the digital copy of a photograph or video physically recorded on it) as the transfer of the gift of the photograph taken. I put it to the community that the case law is sufficient to interpret this being a gift under the conventional interpretation of gift law. Should one consider other digital gifts (copies of software, licences, electronic gift vouchers on swipe cards) one standardly would interpret these under gift law, rather than objecting solely of the basis of their digital format. Thanks --Fæ (talk) 14:38, 19 January 2013 (UTC)[reply]

The problem is that giving a gift requires some level of intent and there is no meaningful way to predict how the court would rule with regards to intent in this case. For example a court could rule that there is no intent to transfer copyright basically limiting you to fair use/fair dealing. Or they could rule that a limited license is given allowing the usual things people do with snapshots but not say commercial sale. Another line of attack would be to say that the person who's camera it is gets to use the photo in any way they like until asked not to. We simply can't predict the line a court would take.

To further complicate matters you've got to consider the people involved. Given that both myself and Panyd are copyright aware I think the odds if a court ruling that I had any claim over File:Wikimedia UK - 9th birthday.JPG are effectively nill.

Given this messy situation and the fairly low value of the images involved is is better to treat such images as presumed non-free for the time being.Geni (talk) 15:13, 19 January 2013 (UTC)[reply]

Okay, so we can park the digital format consideration.

There is sufficient case law in the USA to address the nature of gifts, including verbal transfers and the importance of physical ownership (which is obviously immediate in these examples). There is enormous value on Commons in peoples travel photography and photography of the type "me with celebrity at event". To give grounds by guideline or policy on Commons to delete all such images based on a thin hypothetical thesis would be bizarre and unnecessary, considering we have no history of complaints about these photographs or a single successful legal challenge. A court never has ruled in the way you say, indeed there is every likelihood that a court would judge "giving a camera back without verbal caveat or reservation being expressed" as a perfectly valid transfer of copyright as the current existing case law for gifts provides an excellent foundation for such a judgement.

I would say the situation is not "messy" as gift law in the USA (and UK) sets a good precedent here, as does common sense. The factor of common sense and a community view should not be overlooked where law is weak or subject to interpretation. The precautionary principle puts the case for significant doubt and there is a strong rationale here to judge the doubt to be insignificant in consideration of the billions of digital photographs that are taken this way each year, and the fact that not one single case has demonstrated against transfer of copyright in the "here take my photo for me while I'm on holiday" scenario. If you think a RFC is necessary to firmly assess the common sense and community view (rather than just yours and mine), I am sure we can set one up. Thanks --Fæ (talk) 15:34, 19 January 2013 (UTC)[reply]

one of the key elements of gift law is intent. Are you seriously suggesting that the average person who really doesn't know that much about copyright intends to transfer copyright to you when they give you back your camera? The reason that no one has sued is that such photos are generally perceived as having no value and in any case suing people is expensive. I really doubt we would loose much in terms of travel photography since people tend to take photos of views and things themselves. Might lose some celeb pics but if the celebs in question are appearing in public that can be delt with.Geni (talk) 13:22, 20 January 2013 (UTC)[reply]

Yes I am serious, thanks. It is perfect common sense that if a stranger on holiday asks you in passing to take their photo, you say okay, take the camera, take their photo and then hand the camera back without expressing any reservation or condition, then you are making a gift of the photograph you took. Any court would judge that your intention when you said yes and then by physically transferring the photograph by handing the camera back is a sufficient verbal contract. Unless you can find some case law in addition to those that I have added above, rather than expressing your personal ideas about what you think is copyright but can find no evidence for, or what you personally think is valuable on Commons that may well be at variance to the community consensus, then I am not sure there is much else here to say. Thanks --Fæ (talk) 14:10, 20 January 2013 (UTC)[reply]

exactly a gift of the photograph. We've already established that a gift of a physical item doesn't generally transfer copyright and there is no reason to think it is any different for a digital item.Geni (talk) 18:32, 21 January 2013 (UTC)[reply]

You certainly did not establish that an unpaid commission ending with a gift of the single copy of a creative work may not transfer copyright, particularly where no attempt has been made to restrict the creative work, where the creator chose to remain unknown and not claim the work, where a physical transfer has been made and where a verbal agreement of consenting to take a photograph in order to be given back freely is part of the commission of the work.

We seem to be talking at cross purposes and in circles. I cannot see the point of discussing this with you further if you are not prepared to support the various points you make with citations to legal cases. At the moment you seem to be just reiterating your personal beliefs as if they were fact or a community consensus, rather than applying or refuting the legal case material I have already presented. If you want to make the guidance here sit on a firm footing, please add some reliable and legally meaningful sources to this page or take this to a community RFC. I propose that later this week I re-add this text, now sourced, back to the page unless credible legal cases undermine the common sense point of view. Thanks --Fæ (talk) 18:50, 21 January 2013 (UTC)[reply]

The cases you cited are in no way parallels to the issue we are considering so claiming your position is sourced is inaccurate.Geni (talk) 19:01, 21 January 2013 (UTC)[reply]

By all means provide some better and more relevant widely accepted sources and legal cases, compared to the documents I have pointed to relating to gift law and transfer of copyright, that I and others can then take some mellow time to read and consider. Restricting yourself to negatively criticising my point of view, a hypothetical case with Panyd and your personal beliefs, is unlikely to help us reach a consensus any time soon. Thanks --Fæ (talk) 19:11, 21 January 2013 (UTC)[reply]

The problem is that you citations don't actually support your position. In the first one the matter of copyright isn't considered so it isn't really relevant. The second is a very general coverage of gift law which I'm well aware of. I don't think delivery and acceptance are at issue here. However as the page says gifts also require intent. And with intent we face two problems. Firstly you have the issue that the average person doesn't spend much time thinking about copyright so intent in general is unlikely. Secondly since it accepted in law that transferring an item or a copy of an item doesn't generally result in a transfer of copyright we can't assume such a transfer without an explicit intent to do so.Geni (talk) 02:04, 25 January 2013 (UTC)[reply]

Support addition of this text I was just in this situation. I had someone photograph me so that I would have a picture to upload for use on Wikimedia projects. The photographer has an understanding of copyright and my publication plan for the image. We both intended that he transfer copyright to me and did this verbally, imagining that verbal transfer of copyright is possible in the United States. Expecting that verbal transfer is possible, it is my position that I own the copyright to the image deleted as described at Commons:Deletion requests/File:Lane Oct 2011.jpg, but still I have been asked to have the camera operator send a letter to OTRS. The camera operator is a friend and if he wrote OTRS, he would say that he gave the copyright to me, which is what I already said. I see no utility to Commons in having people declare to OTRS that they do not own a copyright to a given image. In general, such as in the casual tourist case described above, copyright can be transferred

It could be the case that it is not possible for a person to transfer copyright to another without a formal written legal ritual. Jameslwoodward told me this.

Right now, it seems that Wikimedia Commons has no guideline giving advice about copyright ownership in this case. I think Commons should accept user's assertions of copyright ownership through verbal transfer in cases where there is no dispute and the uploader claims copyright. If this can be done then perhaps there can be a template put on media to indicate this case. If there is a dispute about media uploaded in this way then Commons should ask for written documentation or by default take the side of the camera operator if the operator asserts their right to the photo. I know that Facebook has relatively bad copyright management practices as compared to Commons, but there are many tens of millions of instances on Facebook where someone photographs someone else and then the photographed person uploads the image to Facebook. Facebook assumes good faith and handles copyright complaints when they arise, and I think that would be a good practice to adopt here as well. I expect that complaints would be very uncommon here on Commons. See also

Thoughts from others? BaseSat? Geni? Thanks everyone. Blue Rasberry (talk) 10:40, 16 April 2014 (UTC)[reply]

As I said before, the question is, how far do we extend AGF? I am perfectly comfortable with our standard use of it -- if User:X says that he took the picture, then, in the absence of evidence to the contrary, we keep it. However, when the image was clearly not taken by the uploader, I think we get into a difficult area for AGF. Frequently I see images of NotablePerson, uploaded as "own work" by User:NotablePerson, when the user is just a fan, neither NotablePerson nor the copyright holder. We get images obviously taken by professional photographers who may or may not have retained copyright -- the chain portrait studio Olan Mills is very clear that they hold copyright to all of their images. And so forth. Therefore, I think that when it is obvious that the uploader did not take the image, we should always have an OTRS license, if only to force the uploader to think again about who really owns the copyright.

I acknowledge that this is close to being silly when the User in question is a well-established and respected member of the community such as User:Bluerasberry. However, we don't generally have policies which read like this:

"Unless the user is well-established and respected, OTRS permission is required for images where the user obviously did not take the image of himself."

In view of the frequent misunderstanding and abuse of this situation, I think it is reasonable to ask all users for OTRS verification. . Jim . . . . (Jameslwoodward) (talk to me) 14:12, 16 April 2014 (UTC)[reply]

I think you might be right that this is a limited case and that allowing these kinds of uploads may cause lots of other problems. Let me think more. Blue Rasberry (talk) 15:50, 16 April 2014 (UTC)[reply]

Jameslwoodward What you propose is how I think things should be. The best action in these cases is for someone to further confirm copyright owndership to OTRS. This step is diligent because of frequent misunderstanding and abuse of the situation, which I agree is the usual case, and entirely fair because situations such as this one are rather uncommon. Your proposed solution has many benefits and no serious drawbacks. I just sent the below letter to OTRS:

Please undelete File:Lane Oct 2011.jpg.

I had conversations about this file in the following places:

The situation is that the image is of me and taken by another person. The image is a low-quality phone picture taken by a friend who knows copyright and who transferred the copyright to me. I own the copyright and the photographer does not. I am writing to OTRS to confirm in this unusual case that as I own the copyright, I can ask that the image be undeleted, and I would like to do that now.

There is no consensus of what to do in this case, but as a start and to prevent confusion, the only remedy proposed is to write to OTRS and confirm copyright ownership. I agree that this is best. Anyone with further comments should go to Commons_talk:Transfer_of_copyright.

Thanks,

Thanks to everyone who participated in this conversation. Blue Rasberry (talk) 14:12, 17 April 2014 (UTC)[reply]

Some Helpful Clarification Hello everyone, I just noticed this discussion and I think you will find some guidance in this recent Wikilegal post on the subject. Hopefully that will help clear some things up! JTam (WMF) (talk) 23:59, 1 May 2014‎

I see that @Bluerasberry: 's photo File:Lane Oct 2011.jpg has been restored, which seems proper to me. For the moment, I'd like to address one small piece of this issue: cases in which an uploader has clearly asserted that copyright was verbally transferred. This may not apply to the vast majority of cases, but it does apply to some, and if we do deem it acceptable, it becomes a very useful tool for Commons uploaders. I'd note that in COM:IDENT we already attach meaning to uploaders' recounting of a verbal agreement -- in that case, it's in relation to personality rights, not copyright. And I say that is just fine. We should assume good faith, and give our users the ability to upload a simple photo with the credible assertion that they got verbal agreement for copyright transfer from the photographer. I can see two areas in which this might lead to trouble:

Cases where common sense tells us that the uploader is being disingenuous (and this is a kind of problem we are very used to, and reasonably adept at, dealing with -- for instance with COM:Flickrwashing); and
Cases where the photo is very valuable, and a higher standard of establishing the agreement might be appropriate. For instance, a high quality studio shot of a famous person for their Wikipedia biography. (Again, we are already very used to, and reasonably adept at, dealing with issues like this.)

I would like to see a policy in which we agree that in ordinary cases, we trust the uploader to make such assertions, but that leaves room for us to make judgments about the kind of extraordinary cases I listed. -Pete F (talk) 19:24, 17 July 2014 (UTC)[reply]

Addendum -- I think it's important that any proposal lead to worthwhile practical outcomes, so in summary -- here's how I imagine things working, if a policy like this should be established:

As Wikimedians requesting photos, we would have a clear path forward. It would require diligence, but hopefully over time it would be clearly documented, and would become another piece of knowledge freely shared among Wikipedians as they teach each other best practices in a variety of contexts. That path would look like this:

I hand my camera to somebody, and say "Will you take my picture"
When I get the camera back, I say something like: "Do you agree to give me copyright to the picture(s), so that I can make decisions about its future use without needing to consult you?"
Assuming they say "yes," when I upload the file, in the "Author" field, I would include a statement such as: "Unknown; photographer verbally transferred copyright to Peteforsyth (talk · contribs)"
This would eliminate the need for OTRS tickets of this general type (though in that particular case, since I paid the photographer, I would request an OTRS ticket just to be on the safe side)

-Pete F (talk) 19:39, 17 July 2014 (UTC)[reply]

It seems like now at least people have choices for trying to do this rather than not knowing how to make a gesture to establish legitimacy. This seems like a way forward to me. Blue Rasberry (talk) 14:44, 21 July 2014 (UTC)[reply]

See the closing rational here too. J e e 15:59, 21 July 2014 (UTC)[reply]

Commons talk:Transfer of copyright

Verbal transfer

Proposal to satisfy the Geni requirement and to avoid endless revert wars

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