Commons:Deletion requests/Derivative works of Sesame Street puppets

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Derivative works of Sesame Street puppets

[edit]

Jim Henson (and subsequent copyright owner, Henson Associates Inc or Childrens' Television Workshop, CTW) has been very protective over the copyrights of the Muppets.[1][2] They have won at least 2 cases that involvement derivatives of the Muppets (2D and 3D), and Sid s Marty Krofft Television Productions, Inc. v. McDonald's Corp. has established it is still a copyright violation to create knock-offs (puppets/costumes) that are meant to imply a root to the original characters.[3] Without permission from CTW, the following photographs should be deleted per Commons:Derivative works ("If I take a picture of an object with my own camera, I hold the copyright to the picture. Can't I license it any way I choose? Why do I have to worry about other copyright holders?" and "If I take a photograph of a kid who is holding a stuffed Winnie the Pooh toy, does Disney own the copyright in the photo since they own the Pooh design?"). Jappalang (talk) 02:30, 8 February 2011 (UTC)[reply]

  •  Keep Toys and costumes are the modest percentage of the photos and not are always true copies of dolls used in the TV program. You should to every photo add individual the deletion requests. Some files originate from official pages sides of the American federal government. --Starscream 15:28, 8 February 2011 (UTC)[reply]
  •  Keep, at the very least the top two per this. Apparently Wikipedia Attorney Mike Godwin said costumes are allowed. Ctjf83 (talk) 21:11, 8 February 2011 (UTC)[reply]
  • Keep per Ctjf's comments, except the two for which Nick Moreau says "No contest to this one". By definition, images created by employees of the US federal government in the course of their official duties are in the public domain; if the law says that they're PD, they can't be copyvios. Nyttend (talk) 05:04, 9 February 2011 (UTC)[reply]
I think there are two misconceptions here from the above responses (and it seems none of the above has read Commons:Derivative works).
  1. They are photographs taken by US government employees, so the muppets are not copyrighted.
    The photographs are indeed taken by government employees, but the subjects are not created by government employees. They are copyrighted materials. The photographs are derivatives of these copyrighted materials; although the photographs are in the public domain, the subject matter is not and deserves the consideration demanded as derivative works (per Commons:Derivative works#If I take a picture of an object with my own camera, I hold the copyright to the picture. Can't I license it any way I choose? Why do I have to worry about other copyright holders? andCommons:Derivative works#If I take a photograph of a kid who is holding a stuffed Winnie the Pooh toy, does Disney own the copyright in the photo since they own the Pooh design?). As stated in US Copyright law § 103 (b):

    The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.

    The Muppets are copyrighted material regardless of whoever takes photographs of them. While the government and its employees can freely use copyrighted materials without permission in several cases (read the US Copyright law), they are not exempt from infringement if the items are used not within the government only or for commercial purposes per § 501 (a):

    Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 or of the author as provided in section 106A(a), or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright or right of the author, as the case may be. For purposes of this chapter (other than section 506), any reference to copyright shall be deemed to include the rights conferred by section 106A(a). As used in this subsection, the term "anyone" includes any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity. Any State, and any such instrumentality, officer, or employee, shall be subject to the provisions of this title in the same manner and to the same extent as any nongovernmental entity.

    That is why government sites tend to have a non-commercial clause for use of their material (to address the copyrighted subject concern).
  2. Mike Godwin says costumes are okay.
    Godwin is correct when he says functional costumes cannot be copyrighted, but his words (which has basis in law) have been misinterpreted. Clothing are granted copyright protection because they are "useful items"; however, it also depends on whether there are copyrightable elements in the costumes.

    "Clothing is a useful article, which means that clothing designers must satisfy the separability standard in order to obtain copyright protection. The Copyright Office considers Halloween costumes to be useful articles, as well, because they serve the dual purpose of clothing the body and portraying the appearance of something. However, the Copyright Office considers fanciful face masks not to be useful articles, since they have no inherent utility other than their appearances."[4]

    "Fanciful costumes (like a Wookie costume) are also useful articles, subject to the separability analysis. But they will sometimes pass the separability test because they may have separable pictorial or sculptural elements."[5]

    Kieselstein-Cord v. Accessories By Pearl, Inc. held that the "ornamental elements of a belt buckle were protectable because they were conceptually distinct from the utilitarian function of the buckle."[6] Non-useful costumes (and non-useful elements of the costumes) are indeed copyrightable:
    • Sid & Marty Krofft Television Productions, Inc. v. McDonald's Corporation won victory for the plaintiffs against the defendants, establishing the precedent that anthromorphic costumes are copyrightable.[7]
    • Lyons Partnership, L.P. v. Morris Costumes, Inc. 243 F.3d 789 (2001) found that the costume company unwillfully infringed the copyright of Barney the Dinosaur by producing two knockoff costumes.
    • New Line Cinema Corp. v. Russ Berrie & Co. 161 F.Supp.2d 293 (2001) held that Freddy Krueger's copyright extended to his glove, of which the defendant was guilty of unwilfully making a knock-off (Ghostly Gasher), because it "was a component part of the character which significantly aids in identifying the character."
    If an article was designed on the basis of aesthetics than for utilitarian purposes, then separability is existent. The Muppets were designed first as puppets (controlled by human operators through hands, sticks, or mechanisms) with sculptural elements, not wearable costumes; hence the conceptual separability is more than fulfilled. This is more than demonstrated by the quoted case laws.
    As for parody, I believe the copyright exemption applies only to the makers of the parody and not to re-users of derivatives of their material. In any case, while File:Bert and Ernie Married.jpg can be construed as a parody, File:MissPeggyGustavo.jpg does not (the latter has no intent to demonstrate certain ideas that is a parody of Kermit and Miss Piggy, but simply alludes to the nature of the copyrighted characters), per Lyons Partnership v. Giannoulas 179 F.3d 384 (5th Circ. 1999)[8].Jappalang (talk) 21:29, 9 February 2011 (UTC)[reply]
So, is there no free license out there saying "the photo itself is free, but careful about the contents"? It would seem like these photos should have some sort of preferential treatment over a generic publicity photo for the series. -- Nick Moreau (talk) 15:53, 12 February 2011 (UTC)[reply]
As far as I know, we have templates that provide disclaimers for trademarks ({{trademark}}), official representations ({{insignia}}), and personality rights ({{Personality rights}}). These, however, deal with non-copyright issues. The concept of de minimis comes close to what you say, but it demands that the copyrighted subject is not the focus of the image and is minor in proportion or indistinct on the whole (which none of these photographs qualify). Unless we scrap the concept of Commons:Derivative works, I am not aware how these images should be kept while abiding case laws and project rules. Jappalang (talk) 00:44, 13 February 2011 (UTC)[reply]

Deleted: I see no reason why the Muppets are different from other characters, both solid, and cartoon.      Jim . . . . Jameslwoodward (talk to me) 22:25, 21 February 2011 (UTC)[reply]

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