Commons:Deletion requests/File:Selection Birkenau ramp.jpg

From Wikimedia Commons, the free media repository
Jump to navigation Jump to search
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:Selection Birkenau ramp.jpg

[edit]

We are missing a United States copyright tag. According to w:Wikipedia:Non-free content review/Archive 60#File:Selection Birkenau ramp.jpg, it seems that the photograph was taken by some person at the Auschwitz-Birkenau camp, and it seems that the photographer was also unidentified by the person who found the photograph. The photograph later ended up being published somewhere, but as there doesn't seem to have been any way for the publisher to identify the photographer, the publisher can impossibly have asked the photographer for permission, nor can any later publisher have done, so this didn't count as 'publication' in the legal sense. This means that the photograph seems to count as an 'unpublished' photograph with respect to United States copyright law, and unpublished photographs by unknown photographers are unfortunately protected for 120 years from creation, regardless of source country. See Commons:Subsisting copyright and {{PD-US-unpublished}}. Stefan4 (talk) 22:31, 27 March 2015 (UTC)[reply]

This image is part of the Auschwitz Album, 193 photographs taken by the SS inside Auschwitz in 1944, at the height of the Holocaust in Hungary. All knowledgeable sources have said they're in the public domain, including Yad Vashem, [1] and the United States Holocaust Museum. If you're proposing one for deletion, you'll have to do the same for Category:Auschwitz Album. SlimVirgin (talk) 23:45, 27 March 2015 (UTC)[reply]
The United States provides a copyright term of 120 years from creation for photographs which have never been published with the consent of the photographer. According to w:Auschwitz Album, 'The identity of the photographer has never been determined.' This means that photographs from that collection impossibly can have been published with the consent of the photographer, meaning that the whole set is copyrighted in the United States until 120 years after they were created.
According to w:Yad Vashem, Yad Vashem is located in Israel, so the web site probably only reports the copyright status in Israel. According to Israelian copyright law, photographs taken before 25 May 2008 are protected by copyright for at most 50 years from creation, so no photographs from WWII are protected by copyright in Israel. However, quite a lot of them are protected by copyright outside Israel. The United States Holocaust Museum seems to provide incorrect information. --Stefan4 (talk) 23:54, 27 March 2015 (UTC)[reply]
You're arguing that Commons must respect Nazi copyright, that publishers should have asked the SS's permission before publishing their images, and that the United States Holocaust Museum knows nothing about the copyright status of the Holocaust material it curates. None of those arguments are sustainable. SlimVirgin (talk) 02:45, 28 March 2015 (UTC)[reply]
SS was not a person but an organisation, so SS can't be the copyright holder. --Stefan4 (talk) 00:51, 29 March 2015 (UTC)[reply]
Why could the SS not have been the copyright holder? SlimVirgin (talk) 16:22, 29 March 2015 (UTC)[reply]
The copyright laws of the vast majority of European countries assign the copyright to the author, not to the author's employer. SS is not an author but an employer. --Stefan4 (talk) 23:19, 4 April 2015 (UTC)[reply]
Pinging the editors who took part in the other discussion: @ARTEST4ECHO, Masem, and B: and Coretheapple, who has expressed an interest in how we handle Holocaust images. Stefan, can you say why you're focusing on this image for deletion, but ignoring the rest of the collection? Or are you arguing that they should all be deleted? SlimVirgin (talk) 05:23, 28 March 2015 (UTC)[reply]
They all need to be deleted, yes. --Stefan4 (talk) 11:48, 5 April 2015 (UTC)[reply]
  • FWIW the album was submitted in evidence at the Nuremburg trials as USSR-30 (for example Vol VII of Trial of the Major War Criminals before the International Military Tribunal[2] as "captured German originals".[3] Some photos were included in the printed transcripts which were formally published. Don't know whether the whole album was published as part of this. The individual speculated to be the most likely photographer later wisely denied taking them.[4]Thincat (talk) 11:36, 28 March 2015 (UTC)[reply]
  •  Keep The photo was created by a Nazi guard. A Holocaust survivor took the photo home with her. She then donated the physical image to Yad Vashem. I have no idea who owns the copyright. But everyone everywhere who isn't Wikipedia seems to think they're public domain and that's good enough for me. Under en:Pushman v. New York Graphic Society, Inc. prior to the Copyright Act of 1976, if the only tangible embodiment of a copyrighted work was transferred, that also transferred the copyright. So once the survivor took the photo home with her, the Nazi guard didn't own the copyright any more as far as the US is concerned - she did. So we don't need to be concerned at all about violating the copyright of the Nazi guard under US law - he lost his rights to it when he lost the photos. She donated the collection to Yad Vashem in 1980. I have no idea if her donation included any kind of statement of transfer of copyright. But she lived until 1999 and presumably would have objected if she thought the images were not public domain and Yad Vashem was going around telling people they were. But again, this is all academic - Yad Vashem and the US Holocaust museum both say they're public domain and we normally take those claims at face value. We are not lawyers and this is not a simple case to evaluate. I'd say take the word of the people who know what they are talking about. --UserB (talk) 12:00, 28 March 2015 (UTC)[reply]
    • w:Pushman v. New York Graphic Society, Inc. is only applicable to United States works, or if the copyright transfer takes place within the United States. Other works follow the rules in the work's source country, see w:Itar-Tass Russian News Agency v. Russian Kurier, Inc. Under German and Polish law, the original copyright holder is the SS employee who created the image, and copyright is only transferred through inheritance. As the United States copyright holder is determined according to source country law, the United States copyright holder is the SS employee who took the image, or, should the employee be dead, the heirs of this SS employee. --Stefan4 (talk) 00:51, 29 March 2015 (UTC)[reply]
  •  Keep based on UserB's explanation with the end fact being that reasonable expert authorities on the nature of these images are calling them public domain, as opposed to some random person. They might be wrong, but if we point to where both Vashem and the museum make this aspect clear in the file description page, we're indicating our assessment is based on their assessment, and if copyright trouble on these images come along, that gives us the "out" in case someone made a mistake. --Masem (talk) 14:09, 28 March 2015 (UTC)[reply]
    • The so-called 'reasonable expert authorities' make the big mistake of not telling with respect to which jurisdiction the public domain claim is made. For example, the Israeli website probably only cares about the copyright law of Israel, which gives a copyright term of 50 years from creation. However, the United States gives a copyright term of 120 years from creation, provided that the picture never has been published with the consent of the unidentified SS employee. --Stefan4 (talk) 00:51, 29 March 2015 (UTC)[reply]
      • If that contention is correct, then why doesn't Yad Vashem say that every single World War II photo on their website is public domain? Also, is en:Copyright law of Poland right? It says "According to the Art.21 of copyright law of March 29, 1926 (valid until 1952) photographs lose copyright protection ten years after picture was taken." (Note: taken, not "published".) Also, from randomly clicking on some things in Category:Poland during World War II, some have the obviously incorrect {{PD-old}}, but most have {{PD-Polish}}. The only way this is (possibly) copyrighted is if we claim that the source country is Germany. Certainly, I would think that basically every court everywhere would dispute that since it would give legitimacy to the Nazi occupation. Has any court anywhere ruled that German copyright law controls the copyright status of images created in the occupied countries? --UserB (talk) 10:20, 29 March 2015 (UTC)[reply]
        • We don't seem to have any template for Polish photographs taken more than 10 years before 1952. Should we have one? In any case, this wasn't taken more than 10 years before 1952 as it was taken in 1944. {{PD-Polish}} can only be used if Poland was the country in which the photograph was first published with the consent of the SS guard, and it can't be used at all if the photograph never has been published with consent from the SS guard.
As stated, the problem is with United States law. See COM:HIRTLE, section 'Never published, Never registered works'. A photograph which has never been published with the consent of the copyright holder (in this case, the SS guard or his heir) is 'unpublished' with respect to United States law. Check the column 'What was in the public domain in the US as of 1 January 2015'. It says that the picture must have been 'Created before 1895' in order to be in the public domain in the United States (for anonymous works and works for hire, that is - this is anonymous and presumably also a work for hire). No mention of any source country anywhere in the 'unpublished' section of COM:HIRTLE. The rule is simple: the same rule is used regardless of which country the picture comes from. --Stefan4 (talk) 23:19, 4 April 2015 (UTC)[reply]
If Yad Vashem claims that some photographs from WWII are copyrighted and that some are in the public domain, then it seems that the website doesn't use the Israeli copyright rules but some other country's copyright rules. It is unfortunate that the website doesn't reveal which country's copyright rules it relies on. For example, Germany and the United States have very different copyright rules for WWII photos, and the rules for determining the copyright status in Germany have absolutely nothing in common with the rules for determining the copyright status in the United States, provided that the source country either is some European country or the United States. --Stefan4 (talk) 11:48, 5 April 2015 (UTC)[reply]
  •  Keep No US court would uphold a claim to copyright from an SS guard or an exclusive rights claimant (the SS?) or their inheritors. The idea is ridiculous. Courts' decisions can and do go beyond a textual analysis of copyright acts. The activities involved were criminal (to put it literally and mildly). And without any valid claim to copyright the photographs are public domain. Thincat (talk) 09:39, 30 March 2015 (UTC)[reply]
  •  Keep Responding to ping. Keep per Thincat. Is this some kind of premature April Fool's Day joke? This was a photo of Auschwitz taken by an SS man. It stays. This is not an IAR situation it s a WTF situation. Note: I am rarely on Commons, so it's best to ping me at Wikipedia. Coretheapple (talk) 02:00, 1 April 2015 (UTC)[reply]
  • The last two !votes bother me a tad bit. We should keep this image because it actually IS public domain - not because we don't feel that copyright law should not be respected for really, really mean people. I believe that the image is public domain - both because I trust the source website that says it is public domain (and they don't make that claim on every single WWII image they have so they're presumably doing something more than just looking at Israeli copyright law) and because my reading of our article on Polish copyright law is that the copyright has expired. If I believed that it was copyrighted, I would argue just as vehemently to delete the image, even if the copyright holder was a Nazi. --UserB (talk) 02:54, 1 April 2015 (UTC)[reply]
Oh dear. I am not arguing that the photos should be PD, I am arguing that they are PD. First, I agree with the opinion you had given above (and I should have said so). But, the conduct of the Auschwitz camp was decided to be criminal both under international law (Nuremburg trials) and German law (Frankfurt trials) and so the photographs were taken as part of a criminal act both in the US and Germany. Acting under orders was specifically excluded as a defence under the Allied Control Commission laws. Such photographs do not benefit from copyright protection. Thincat (talk) 08:48, 1 April 2015 (UTC)[reply]

Kept: as above. Non sense request. Yann (talk) 20:19, 5 April 2015 (UTC)[reply]

Retrieved from "https://commons.wikimedia.org/w/index.php?title=Commons:Deletion_requests/File:Selection_Birkenau_ramp.jpg&oldid=156015152"