User talk:Elcobbola/Models

Comments

I agree wholeheartedly. My comment in the OO model railway case was three years ago and not correct.

One additional line of reasoning. Human beings or, say, lions, can not have copyrights. By the line of reasoning used in many of the model keeps, then a sculpture of a human or a lion could not have a copyright because it is simply a different version of non-copyrightable object. Yet we certainly have no problem with the concept that a bronze lion will have a copyright in all jurisdictions.

I see several areas of question. A plastic model airplane without a motor has a copyright. If you put a motor in it to fly it around on a string, it is still a toy, so it probably still can have a copyright because toys, by definition, are not utilitarian. But cut it loose with a radio control and a camera in it and it becomes a UAV, clearly useful, and therefore no copyright. It could well be literally the same basic object -- how do we draw the line?

Similarly, we understand that automobiles do not have copyrights because they have utility. What about "concept cars" made for auto shows, that have no engines or running gear? I suspect that they have copyrights.

.     Jim . . . . (Jameslwoodward) (talk to me) 13:44, 5 March 2013 (UTC)

That's a good corollary; ironically, it's one I used in the pending deletion request that prompted me to write this essay in the first place. I'll add a paragraph about it, and it actually gives me a nice way to integrate the issue of taxidermy.

A primary point of the essay, and indeed of copyright law, is that function is an essential consideration. A UAV is an industrial object meant for surveillance, deployment of ordinance, etc. Conversely, to borrow language from Gay Toys, a toy (e.g., an RC plane) is "to be played with and enjoyed, [...] Other than the portrayal of a real airplane, a toy airplane, like a painting, has no intrinsic utilitarian function." From this, it almost seems implicit that amusement/enjoyment is not considered a utilitarian function (and Congress' reasoning for exempting useful articles also seems to support that notion). Without a case to establish precedent, however, this is the genuine issue for deletion discussions of locomotive toys. However, given COM:PRP and the fact that even belt buckles - objects which one would think have an inherent utilitarian purpose - can be copyrighted (Kieselstein-Cord v. Accessories by Pearl, Inc., 632 F. 2d 989 (2nd Cir. 1980)), I would be inclined to believe that locomotion alone is insufficient to remove copyright eligibility. Really, at the end of the day, an RC plane is just a functional model; its purpose is to look like a airplane while flying, not to survey or to bombard.

Concept cars are in a sense easier, as "automobile bodies" are explicitly utilitarian articles, per the Copyright Office. As Commons contributors are generally laymen, my position is that judgement should be deferred to genuine authorities whenever possible. In this case, the Copyright Office says X, so we should follow X without necessarily concerning ourselves with the reason. My supposition for their reasoning is that a concept car is still a functional automotive body that has merely been detached from operating components for the sake of ease and economics. While the temporary function at an auto show is indeed portrayal of appearance, the thing is nevertheless an actual car that could be made to run and produced if so desired. Эlcobbola _talk 17:30, 5 March 2013 (UTC)

Hello,
I saw you essay, and I have had exactly the same thought as Jim. So car or plane prototypes have a copyright? Anyway, you made a good and well documented research. Thanks, Yann (talk) 18:53, 5 March 2013 (UTC)

Hi Yann, that's actually a complex question because there are many different kinds of prototypes. There are, for example, "visual" and "form study" prototypes which are intended to simulate appearance and design aesthetic. Accordingly, because the primary function of these prototypes is "portrayal of appearance," they would likely indeed be eligible for copyright protection. Conversely, however, there are "proof of principle" and "functional" prototypes that are truly functional industrial objects which are merely incomplete, unrefined, and/or not in large-scale production. These prototypes would likely be ineligible for copyright protection on the basis of having a utilitarian function beyond mere portrayal of appearance. So again, as I responded to Jim, the test is not necessarily what the object is (model, prototype, etc or RC plane, UAV, etc.) but what it's intended function is. Эlcobbola _talk 19:13, 5 March 2013 (UTC)

Thanks for this much needed essay, even though it will be painful to implement. A lot of our scale model files, unless scratch built by the uploader will need to be purged, but the law is the law. However before such a purge takes place, do you have any jurdistictions where the law is more permissive? could some files be migrated to wikilivres say?--KTo288 (talk) 13:19, 8 March 2013 (UTC)

Am I correct that wikilivres is Canadian? Canadian law, to my understanding, has the same position as the United States in that "sculpture" is explicitly defined as including models: "'“sculpture' includes a cast or model" (R.S.C., 1985, c. C-42, s.2). Otherwise, I deliberately considered only the US when writing this, as that is the jurisdiction that applies to all media on the Commons (as you no doubt know, and as explained in the lead). It's certainly possible other jurisdictions have a contrary position but I truly wouldn't expect it; the notion that models don't get copyright is a bizarre one. Эlcobbola _talk 15:43, 8 March 2013 (UTC)

Yes I understand that US law is the pertinent jurdistiction, that was why I talked of migration of some images to wikilivres, which is Canadian, a work around that came up in the debate about the take down of FOP images.--17:57, 9 March 2013 (UTC)

I think you dismiss the static model > string guided model > RC model > UAV question a little too easily. Hobbyist companies make large RC models as toys for the enjoyment of their users, but under the still developing FAA rules for UAVs, a buyer could put a camera in one and use it for agricultural, real estate, or emergency responder photography. As a simple RC model it can have a copyright. With the camera installed it has clear utility and, presumably, no copyright. Where's the line? I can't imagine that the same plane could have a copyright until the instant that a camera was installed. .     Jim . . . . (Jameslwoodward) (talk to me) 17:08, 8 March 2013 (UTC)

I don't consider my response dismissive, but I apologize if that's how it came across. You say "a buyer could put a camera in one and use it for agricultural, real estate, or emergency responder photography," which they certainly could do. If I were to mount a camera on a "traditional" sculpture, however, would that invalidate the sculpture's copyright? Assuming Michelangelo were still alive to avoid the PD-Old issue, would we allow the free licensing of pictures of David if someone installed a camera in him? The answer to me seems an obvious no; we consider the object as it was created, not as it was modified. I did say, perhaps not universally enough, that this is the genuine issue for deletion discussions. If a company, for example, simultaneously produced a RC plane model in camera and in non-camera version, I would expect a debate to discuss things like which version (if any) was produced first, whether the camera is intended to be used for simple amusement or for "serious" applications (emergency responce, etc.) Some issues simply have no case law precedent, and thus no "right" answer. All we can say is that the line is drawn at original/intended function and discuss from there. And, as a bit of an aside, this is why I mentioned the belt buckle case; an object can have an inherent utilitarian purpose and still be eligible for copyright. Эlcobbola _talk 17:33, 8 March 2013 (UTC)

Implications and implementation

I've been working through some of the implications of what adoption of as this policy would entail, we really don't want to be bogged down in mass deletion reviews so once this becomes policy, massed speedy deletes would seem to be the order of the day, with an announcements on the welcome page,title banners and category pages so people are not too taken by surprise. Would the following be what people understand to be the consequences of adoption.

• model built from a commercially available kit, of which the kit maker has not released copyright-speedy delete
• model built from scratch from plans of which the plan maker has not released the copyright-speedy delete
• model built from scratch from the makers own plans and uploaded by maker with a valid license-keep
• kit bashed model in which major visual elements of the original kit survive, e.g. building a Ta-152 from a Fw190 kit-delete
• kit bashed model in which it is impossible to discern the original kit and uploaded by maker with valid license-keep
• One off scale models displayed in for example museums-keep or delete according to Freedom of panorama of country in question
• One off 1:1 or close to full scale models displayed in museums or used for example as gate guardians-treat as sculpture and apply FoP rules
• Buildings in the shape of planes and boats etc (e.g. cafe in the shape of a near full scale concorde)-apply FoP rules

Ideas on wind tunnel models, they have a utilitarian purpose of generating aerodynamic data, so I would say that they are utilitarian? Full scale mock ups wise using the Space shuttle as an example Pathfinder originally had a utilitarian purpose so can be kept, but how about Explorer as sculpture US FoP rules would suggest deletion, could we argue that it is a building?--KTo288 (talk) 13:32, 11 March 2013 (UTC)

There is also another issue: a lot of countries do not care if a work is utilitarian or not, and copyright is provided anyway. If you can't take a photo of a model of a car, then does this also mean that you can't take photos of real cars in countries like France where utilitarian objects are protected by copyright? If we are going to delete photos of real cars, then how is this going to be decided? The country where the photo was taken? The country where the car was made? It's easy to transport a car to a different country. --Stefan4 (talk) 13:54, 11 March 2013 (UTC)

I understand what you are saying, the foundation's actions would seem to imply that their opinion is that US law trumps what is legal or illegal is based on whether they can be successfully sued in a US court. e.g. the decision to apply PD-art to files created by institutions in countries with sweat of the brow copyright laws, and taking down images taken in countries with FoP but created by US born/based artists.--KTo288 (talk) 14:05, 11 March 2013 (UTC)

I agree that wind tunnel models should generally be considered utilitarian if constructed for that purpose (i.e., merely placing an existing model in a wind tunnel is a different matter). I suspect it would be argued that Pathfinder and Explorer are works of the federal government, and would thus not receive copyright protection even if sculpture. Эlcobbola _talk 14:58, 11 March 2013 (UTC)

My knee-jerk reaction is to be weary of anything en masse, lest we get situations like this where genuine issues are ignored when several images in the group can be kept. I know the proposal is to speedy delete images at issue -- which I agree with -- rather than open a DR, but I'm concerned that we'll get cries of "copyright paranoia", "abuse of power" and the similar nonsense I'm sure we've all seen before. If history is an indicator, I don't think mass purges, however well supported, will be accepted without a formal backing by the Foundation. Am I being too pessimistic? My thought, alternatively, would almost be to apply this immediately to new uploads and slowly to apply it to existing uploads in relatively small batches. I hope this would also allow us to encounter concerns and misconceptions and to amend the policy accordingly. For example, I opened Commons:Deletion requests/File:Tiger I model.jpg to test an acknowledged Tamiya model that had been previously kept and got a rather bizarre response that prompted the introduction of the "ownership of rights" section to the essay. Эlcobbola _talk 14:58, 11 March 2013 (UTC)

If it is something like this, then I definitely think that we should use individual nominations. If nothing else, this makes it possible for the uploaders to see the reason before the files are deleted. For example, there was recently a post at the copyright village pump (COM:VPC#Abuse of administrator right) where a user was complaining that images had been deleted. If there had been a deletion request, the user would have seen the reason for deletion there, and if you know why a file violates copyright, then you can avoid uploading similar images in the future. --Stefan4 (talk) 15:08, 11 March 2013 (UTC)

Okay point taken, no speedies until this has had time to bed down and has become established practise.--15:30, 11 March 2013 (UTC) — Preceding unsigned comment added by KTo288 (talk • contribs)

Well, speedies are certainly okay, just not in imprudent mass. Perhaps it would have been better to say, for now, to speedy smaller subsets of larger groups. For example, [[Category:Wax figures]] is a problem; perhaps find sets within that category (and others) to be speedied. For example File:Michael Herbig 5848-2.jpg, File:Michael Herbig 5848.jpg, and File:Michael Herbig 5856.jpg (although those particular ones aren't a perfect example, as the real person could perhaps be usable if cropped out). A better example would be File:Wax museum in Saint Petersburg.jpg, File:Wax museum in Saint Petersburg1.jpg and File:Wax museum in Saint Petersburg2.jpg (and no FoP in Russia). Эlcobbola _talk 15:43, 11 March 2013 (UTC)

If anyone is still following, I've nominated the files in a (large) category here: Commons:Deletion requests/Files in Category:Tin toy aircraft to test the waters of larger scale requests. Эlcobbola _talk 19:06, 25 March 2013 (UTC)

Move

It's now been a full week since I asked for feedback at the village pump. As I've not heard back there, would there be any objection here--if people are still following this page--to moving it to the mainspace? Not necessarily adding {{Guideline}}, but just to make it something more actionable. Does anything seem half-baked or incorrect? Is a formal write-up of the UAV issue needed? Эlcobbola _talk 14:46, 12 March 2013 (UTC)

Go for it! And good work! I haven't read it all but you may wish to add a note that photos of The Batmobile may have copyright issues in the future. We may need a warning template for any images we have of it that states that they may be copyvio.--Canoe1967 (talk) 18:44, 28 March 2013 (UTC)

Time for an rfc for promotion to guideline may be in order.--KTo288 (talk) 15:55, 18 April 2013 (UTC)

I've been thinking about this and I'm now not sure this is appropriate as a guideline. The only current guideline dealing directly with copyright is COM:DW, and that is a broad and fundamental concept. This essay, however, is merely background and support on a very narrow issue; indeed, it doesn't even really provide guidance. To that end, at best it should just be in main space, like COM:CB - something more than an essay but not really a guideline or policy. Эlcobbola _talk 20:35, 18 April 2013 (UTC)

s:Meshwerks, Inc. v. Toyota Motor Sales U.S.A., Inc.

Should this court case be mentioned somehow? The case suggests that models aren't always copyrightable. I'm wondering how this affects Commons. If you make a toy car, there are some things which will be very similar to the original and some other things which will be different. The outside will often be very similar to the original car, but the inside will always be very different as you don't have an engine, buttons, pedals and various other things. Does the copyright for models come from these differences at the inside of the toy? You should consider that the registrations and court cases mentioned at User:Elcobbola/Models relate to models and not to photos of models. Are photos permitted if the photo only shows those parts which are faithful to the original object?

Further up, User:Jameslwoodward compared models to bronze lions, but I think that there is a huge difference. A real lion is a living animal. Sometimes it is standing up, sometimes it is sleeping and sometimes it is running. If you make a bronze lion, then you will always have to decide how the lion is posing in the statue. However, a car looks the same when it's "sleeping" and when it is "running", the main difference is that the wheels can be turned around and that they are rolling. Therefore, there are a lot fewer creative choices when deciding what the toy car's exterior should look like (providing that you are modelling it after a real car). In both the car and the lion case, there will be some differences as the statue and the model won't contain a car engine or a lion heart. --Stefan4 (talk) 20:21, 17 October 2013 (UTC)

In reverse order: I’m not sure I agree with your comments here related to animate and inanimate objects. In modeling an F-14, for example, inputs unique to the author (i.e., originality) include, among others, to what degree the wings are swept, the level of detail (e.g., whether rivets are depicted), whether the landing gear is up or down, the position of the afterburner petals, whether armaments are attached, whether miniature pilots are in the cockpit, whether it has US or Iranian livery, etc. So too with your car example: what sort of tyres will be modeled, how many exhaust pipes (to use Toyota, the mark from Meshworks: V4 Camry models have a single exhaust pipe; V6 models have two), what level of detail (e.g., will there be shallow grooves to represent the spaces between body panels), will a door, boot or bonnet be ajar, will there be a miniature driver, etc. The foregoing—and this is why I went in reverse order—are examples of originality that the digital wireframes in Meshworks lacked. Indeed: the court found that:

“key to our evaluation of this case is the fact that Meshwerks' digital wire-frame computer models depict Toyota's vehicles without any individualizing features”

and

“Meshwerks did not make any decisions regarding lighting, shading, the background in front of which a vehicle would be posed, the angle at which to pose it, or the like—in short, its models reflect none of the decisions that can make depictions of things or facts in the world”.

Consider the corollary of cartography: geographical features and coordinates are facts of the world and thus ineligible for copyright protection. Copyright protection is available to maps, however, because of an author’s ability to produce a unique visual representation of that underlying geographical data via line thickness, coloring, shading, etc. Meshwork’s wireframes, conversely, were merely a mechanical visual representation of underlying data points with no such original contributions thereto. Accordingly, copyright does not necessarily arise from “differences at the inside of the toy”, but from an original contribution by the author of the model. Meshworks is not a case about models in general, but the threshold of originality related to the digitalisation of physical measurements. The related question for all works, whether model or otherwise, is that of originality. I eschewed Meshworks because I assumed originality would be considered before the moving to “secondary” issues of utilitarian function (as Commons:Currency, for example, does not first bother to explain that certain coins may be below the threshold of originality; it assumes that condition has been met). That said, however, I would be happy to add commentary on Meshworks if it would improve the essay. Эlcobbola _talk 17:39, 28 October 2013 (UTC)

In many cases, model cars should not fall under copyright protection.

I understand your argument, see previous legal precedents and appreciate your piece. Here are some thoughts to take into account regarding model cars, aircraft, ships, etc.:

1. They are utilitarian. Toy cars produced in miniature, as extensions of the real cars they copy, are essentially utilitarian. Though they do not function like real machines, they normally exist as playthings, usually for children, which is a utilitarian function, just perhaps not an adult one. They also usually serve a promotional function as children playing with, for example, Chevrolets, are then encouraged to grow up and buy Chevrolets, a promotion of the automobile industry. An inherent truth in the business of toy cars, as seen in the fact that in many cases the real manufacturers would make in-house toy models for play to be distributed or sold to children (Hudson, Citroen, Alfa Romeo). This is a traditional purpose for toys which has existed at least since about 1930.

2. Replication of the real thing. Most toy and model makers in replicating real cars are not seeking the uniqueness of artistic representation. In fact, quite the opposite is true. When Matchbox makes a Mercedes-Benz C-Class sedan, its goal is the same as when Corgi Toys makes a C-Class sedan – to make, within the craftsman’s skills, the most accurate representation possible. The goal is normally the most accurate portrayal possible of the real car in miniature, not a unique artistic expression. In other words, the fact that one maker chooses to paint on rear lights while another manufacturer chooses tinted plastic lenses is not an effort to produce an artistic rendering - it is an attempt to replicate the real car as closely as possible – so adults and children will buy the ‘car of their dreams’, etc. Local choices in manufacturing serve only to transmit the idea of utilitarian function to the smaller replicated object. The goal is to recreate the real car, not artistically diverge from it. Over time, as manufacturing processes have become more precise, model manufacturers replicate the real car with greater and greater accuracy, thus emphasizing the real, usable, actual purpose of the object. The concept, of course, does not apply to Hot Rods, Customs or other fantastical creations (for instance by Mattel Hot Wheels) which do not replicate any real vehicle. These would be covered by copyright law. Attempts to recreate the real vehicle would not.

3. Licensing backs the idea of utilitarian function. Until the late 1980s, toy producers could recreate any vehicle they liked without paying royalties. After this, GM, Chrysler, Ford and other manufacturers required royalties of the toy manufacturers. This process resulted in two things. Fewer manufacturers who could afford the licensing and more precision replication in the toy or model as firms had closer contacts with blueprints and plans. This enhances the theme of utilitarian function in models. Auto companies want to maximize profits and protect their creations. Model manufacturers strive to make the most accurate representations of models possible – as much as possible, to recreate utilitarian and promotional function of the vehicles in miniature, thus the idea that different toy makers strive for uniqueness or artistic representation in their product is, at best, an imprecise argument.

4. Commercial exploitation generally does not apply. After the above, one might say, “Well there is always the possibility that images of these toys and models may be sold or used without due remuneration to the owners” - and this is a possibility, I suppose. Many, many books, from well-known publishers, though, discuss models of many kinds, from many companies and many different countries without direct permission from manufacturers. Most photos in a Wikipedia environment are examples, and, in any event, show only portions of vehicle or a car from one angle. To steal a design to develop a real car, one needs more sophisticated plans or blueprints than can be obtained from a picture or two.

Of course much of this is exists in my ideal legal world. Thanks for your time.--Cstevencampbell (talk) 16:06, 1 December 2016 (UTC)

I don’t think this is deserving of a response, but I offer brief comments which may perhaps offer context and clarity to others: above you say "much of this is (sic) exists in my ideal legal world" and, in a parallel post on Storkk's talk page, you said "These are my own creation for thought"[1]. Accordingly, I understand this is be fantastical musing rather than an engagement with the world as it truly is or a rebuttal of the essay. If not, the above is akin to the anti vaccination movement - a rejection of overwhelming, objective evidence in favour of a layperson's subjective beliefs. Although not similarly life threatening, when you continue to upload images (including reuploading deleted images) you know, or should know, are copyright violations (whether you personally agree with the law or not), you are: 1) violating Common's policy; 2) recklessly misrepresenting intellectual property rights to our reusers, potentially putting them at genuine legal peril (however unlikely in your estimation); and 3) arrogantly presuming to know the will of the copyright holders. You may wish to explore, among others, Flickr and Imgur, image services which do not have the Commons' freedom requirement. Эlcobbola _talk 23:15, 1 December 2016 (UTC)

Additions

@Elcobbola: hello, I made a few additions. Feel free to modify my actions if they are not relevant. If it is OK then please give a little look to check if I have not made grammar or spelling errors. Thanks you. Christian Ferrer ^(talk) 14:22, 26 November 2017 (UTC)

I have some concerns:

• This addition (excluding the example) makes the statement untrue and is actually the opposite of the premise of the essay. In the case of an expired copyright, the original work was the genesis of a copyright; a faithful scale model of a PD work would generally not have a new (or any) copyright as a derivative work. The converse is true for a model of an object that never had a copyright, which is indeed the primary notion of the essay. The general idea as it would relate to a non-faithful model is good, though, so I think this addition will address it.
• This addition doesn't particularly make sense. The section is about who owns intellectual property rights related to scale models, not whether models have copyrights (i.e. the addition seems only to reiterate notions made previously in the essay. "What about a model of an object that was created naturally and is not protected by copyright? e.g. a rock, a mineral, a bone..." seems precisely the topic of the "Logical corollary" section; a mountain is essentially an enormous "rock" after all.)

I've reworked the first bullet and removed the problematic addition noted above. For the second, it doesn't make sense in its current location and, as above, seems redundant. Were you just trying to add more examples (e.g. less "complex" objects like a bone as opposed to a complete skeleton) or is there something else that is unclear? Эlcobbola _talk 17:02, 28 November 2017 (UTC)

I've tried to think about this differently: are you trying to make a distinction between a scale model of a man-made object (e.g., an automobile) and a "natural" object (e.g., a mineral)? I had thought the aforementioned Logical corollary section and the inclusion of Biological examples of copyright registrations would have made the point, but it could be made more explicit if you think there would be confusion. Alternatively, if you were just trying to get across that the modeler gets the copyright, my changes should hopefully make that more clear. Эlcobbola _talk 18:04, 28 November 2017 (UTC)

• Great thank you for having give a look. That is apparently an obvious english language mistake coming from me,

• I wanted to say the exact same thing you did with your correction, but with the auto mobile example.
• This addition "are you trying to make a distinction between a scale model of a man-made object and a "natural" object?" no exactly the opposite, I wanted to highlight that a creator who have created a model own a copyright on this model whether the thing he was inspired by (whether a man-made object or a natural thing (without copyright by definition)). Why? because I already saw in DR discussions (sorry I've not the links) this kind of thing:

persons arguing that a "model (exact copy) of a bone can't be copyrighted because there is no personal addition from the creator of the model"

persons arguing that a "decor showing false rocks (exemple in a Disney park) can't be copyrighted because we can found rocks in the nature"

Christian Ferrer ^(talk) 18:37, 28 November 2017 (UTC)

Okay, do you think the recent additions have helped? If not, we could certainly find a way to be more blunt, but it seems that people making those arguments haven't even bothered to read the essay, so adding more language that they also won't read might not get us anywhere. ;) Эlcobbola _talk 01:36, 29 November 2017 (UTC)

No it's ok, thank's you again :) Christian Ferrer ^(talk) 05:41, 29 November 2017 (UTC)

Your delition requests

Hallo Elcobbola, why are you requesting deletion of photos of toys and model cars? Are you a lawyer hired by the manufacturers (which I can't imagine) or perhaps by the United States government? There is no clear reason, for example, to delete the photo of the Wiking model VW 1303. Or can you name one? Best regards -- Spurzem (talk) 13:26, 22 March 2020 (UTC)

I think you are happy now. ;-) Best regards -- Spurzem (talk) 21:30, 2 May 2020 (UTC)

case law outdated?

Did you notice, that all the case law cited was way before Feist and the only recent decision denied any copyright based on lack of originality? Feist was a game changer in so far as for decades before, lack of originality was rarely claimed and even more rarely determined. As you don't cite any legal literature, textbooks or commentary, an essay based only on case law way before an pivot point in jurisprudence seems lacking conviction to me. --h-stt !? 16:49, 2 May 2020 (UTC)

That would be Feist Publications vs. Rural Telephone Service from 1991. Do you have links supporting your statement, contradicting The U.S. Code's explicit inclusion of "models" as pictorial, graphic, and sculptural works? Feist is mainly about copyright on facts and collections of facts, not models. Wammes Waggel (talk) 08:34, 12 August 2020 (UTC)