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File:Quito sculpture - Avenida Brazil at corner with Avenida America.jpg with graffiti.JPG

This file was initially tagged by 1Veertje as Copyvio (copyvio) and the most recent rationale was: this illigal graffiti is a derivative from the Mario character owned by Nintendo and is thus a derivative work Sreejith K (talk) 02:24, 13 July 2012 (UTC)[reply]

I think this is rather de minims an the sculpture (the main object) is also "interesting" enough. Keep and maybe pixzelize. It's also open art and FOP. --Kungfuman (talk) 14:34, 15 July 2012 (UTC)[reply]

It is only FOP if it's permanent. And the photo does not present the sculpture as a whole, so the intent of display is clearly on the Mario graffiti.--141.84.69.20 12:35, 24 August 2012 (UTC)[reply]

I confirm the doctrine (as well as an arrêt from the France's Cour de cassation) considers graffiti as an ephemeral work (like sandcastle or ice sculptures), and not a permanent one. --Dereckson (talk) 14:42, 24 August 2012 (UTC)[reply]

We have hundreds of Graffiti images in Category:Graffiti and subcats. And Graffitis are considered permanently (at least in some countries, not sure about Ecuador). See this image and the license File:Flickr-spoogman-cc-by.jpg. I still think it's de minimis (compare the portions). If you remove or pixelize Super Mario the image would still showing a useful view of the monument and the location and maybe the background building, thus de minimis. But for my part it could be pixelized. --Kungfuman (talk) 16:07, 6 September 2012 (UTC)[reply]

FOP would have nothing to do with it if the person that painted the graffiti doesn't own the copyright. It is unlikely that an official Nintendo rep sprayed the graffiti. The focus of the current image is the ironic graffiti that makes the statue look like a Mario game, so I don't think de minimis would apply either. ▫ JohnnyMrNinja (talk / en) 17:00, 7 September 2012 (UTC)[reply]

Also, you can tell by the file's usage, it is being used to display Mario Brothers on WMF projects. I've uploaded an edit removing the ironic Mario graffiti (though I'm not a shop expert so someone might want to do a better job). Pixelating the art would create a distraction that would make the file near useless. ▫ JohnnyMrNinja (talk / en) 17:15, 7 September 2012 (UTC)[reply]

This is absurd, the file is used in some Mario articles, but there is no Mario, it's confuse. And about copyright infringement, come on guys, it's a photo of a monument, not a direct reproduction of Nintendo art work, and even if it was, can be considerer fair use.

Commons doesn't allow fair use. You can't have it both ways. If the image is used in Mario articles, obviously the Mario in the image is not de minimis, but rather it was the focus of the image. A graffiti artist does not have the right to release Nintendo's copyright, and Nintendo did not choose to have their IP used in this manner. Besides, if it is fair use, then why not use an actual picture of Mario, instead of this half-assed work-around? ▫ JohnnyMrNinja (talk / en) 19:41, 9 September 2012 (UTC)[reply]

• Delete any revision where Mario is not obscured or removed, as this is being abused as a FOP/de minimis/fair-use workaround. Keep any revision that does not feature Mario. ▫ JohnnyMrNinja (talk / en) 19:44, 9 September 2012 (UTC)[reply]

  You're wrong, we couldn't abuse of FoP in this case, as (i) FoP in Equador only applies to permanent work ("... situada en forma permanente ...") (ii) we've a legal opinion from a court graffiti is an ephemeral work with solid arguments (the fact anybody could retoy or erase it) (iii) we don't have any legal opinion graffiti could be instead a permanent work (I ignore here the Kungfuman comment, as long as he doesn't note what jurisprudence or doctrine consider them as permanent works).

  You're again wrong, as fair use isn't allowed on Commons.

  Are you willing to help with copyright analysis or only hunt with stupid arguments any video game related file only because I deleted your Ninja Turtles logos for copyright infringement?

  DR aren't a game, it's serious business. --Dereckson (talk) 08:47, 12 September 2012 (UTC)[reply]

Kept: Graffiti is illegal, therefore no copyright. In this case, it is also de minimis. Yann (talk) 10:36, 12 September 2012 (UTC)[reply]

File:Quito sculpture - Avenida Brazil at corner with Avenida America.jpg with graffiti.JPG

The previous DR was wrongly closed; it is irrelevant whether the graffiti artist can claim copyright on the creativity in their graffiti. What matters is whether their graffiti violated Nintendo's copyright on Mario, which it clearly does. Nor is this violation incidental to the image (de minimis) - the violation is the primary motivation for the photo, as demonstrated by the file description given by the uploader ("There was this art/monument in Quito, Ecuador on Brazil Ave. at America Ave., which nobody understood what stood for, until someone painted Mario Bros and the question mark over it. Now it makes sense."), and the filename given by the uploader ("File:Mario Bros with Cube - Graffiti.JPG"). The copyrighted material is absolutely not incidental to the image ("look, here's a sculpture - someone's graffitied it, how annoying, I wish it wasn't in the photo"), it is the point of, and motivation for, the photo. The file is even in use on Wikipedia to illustrate Mario (de:Super Mario Bros. 3). There may be good uses for this file, but they will all require reliance on fair use of copyrighted material, which Commons does not allow (Commons:Fair use). Now, a version of the file with the copyrighted material photoshopped out has been uploaded at File:Quito sculpture - Avenida Brazil at corner with Avenida America.jpg; this file should be deleted. Rd232 (talk) 12:12, 13 September 2012 (UTC)[reply]

 Delete, due to the violation of Nintendo's copyright on Mario. In view of the real use of this image on our projects, calling it de minimis is wishful thinking.

However, as Nintendo might even benefit from this image (showing the reputation of Mario), it might not be impossible to get a permission from them for this image. Anybody willing to contact their legal dep. (Nintendo, US) noalegal@noa.nintendo.com? --Túrelio (talk) 07:19, 14 September 2012 (UTC)[reply]

I don't know of any precedent for that. What form of permission would they give? I'm all for trying to save an image in use, but I'm a bit stumped as to how this would work. If there is no precedent, it's certainly worth trying to create one, and documenting it! Rd232 (talk) 12:18, 14 September 2012 (UTC)[reply]

Well, I think if we get an email from Nintendo legal dep. saying they have no problem with using/publishing this image, I think this would be sufficient for us to keep the image. Asking for a license might be too complicated (3 different copyrights in this photo) and might put the barrier too high. --Túrelio (talk) 12:59, 14 September 2012 (UTC)[reply]

Mm, I would worry about such an email being enough for Commons reusers. It would be fine for Wikipedia (and more likely for agreement to be had if permission is for that specific purpose). Rd232 (talk) 14:14, 14 September 2012 (UTC)[reply]

We could ask WMF legal to consult us on that issue. They can't file the request by themselves, for wellknown reasons. --Túrelio (talk) 15:51, 14 September 2012 (UTC)[reply]

Sure - but I'm not going to pursue it myself, I don't think the chances of success are high enough that I'm going to take it on. Rd232 (talk) 17:46, 14 September 2012 (UTC)[reply]

 Comment I think deleting this is en error, but I am not going to fight for it. It is not either a good or important picture. I have more useful thing to do. Yann (talk) 13:30, 14 September 2012 (UTC)[reply]

 Delete Clear violation of our copyright policies, per Rd232. --Philosopher ^{Let us reason together.} 15:40, 14 September 2012 (UTC)[reply]

 Comment': "(Copyright) Protection does not, however, extend to the title or general theme for a cartoon or comic strip, the general idea or name for characters depicted, or their intangible attributes."^[1]

Cartoon characters are trademarked to their creators, and Artwork of cartoon characters are copyrighted to their Artists. --Eternal-Entropy (talk) 04:26, 15 September 2012 (UTC)[reply]

Can you explain how this is different from File:Louvre 2007 02 24 c.jpg? Seeing that the pyramid is much more visible and central than the Mario graffiti? Yann (talk) 09:27, 15 September 2012 (UTC)[reply]

OMG, Yann, do you want to have that also re-opened? The closing admin said this was a borderline decision. Besides, as most of the discussion is in French, it would be of little practical help here. --Túrelio (talk) 09:37, 15 September 2012 (UTC)[reply]

No. I think it is accepted that in this image the pyramid can't be avoided as in all the panoramas in here, and that it is therefore OK. And I see so difference with the Mario case here. Yann (talk) 11:19, 15 September 2012 (UTC)[reply]

The Louvre pyramid is itself a problem case, but it qualifies largely because the pyramid is an intrinsic, unavoidable, and non-removable part of the Louvre scene. Using the criteria at COM:DM:

Rd232 (talk) 12:06, 15 September 2012 (UTC)[reply]

Thanks, your table is useful, but I have some issues. Some of these are objectives criteria, some of subjective ones. I think that objectives criteria are more reliable than subjective ones.

You seem to think that the file name is important to determine DM. Therefore I renamed it. No such issue anymore.

Criteria #4 can be easily changed.

Criteria #6 is your interpretation. Both pictures could be taken with or without this reason. Yann (talk) 12:27, 15 September 2012 (UTC)[reply]

So only criteria #5 is remaining. Yann (talk) 12:27, 15 September 2012 (UTC)[reply]

The aim is to determine the subject of the image - if the copyrighted element is incidental to the subject, it is de minimis. Or if the copyrighted element is an unavoidable and unremovable part of the subject, but not itself the subject, it is de minimis. #4 helps us determine #6 - though #6 is anyway clear in this case - read the File:Quito sculpture - Avenida Brazil at corner with Avenida America.jpg with graffiti.JPG file description. Rd232 (talk) 12:46, 15 September 2012 (UTC)[reply]

OK, I understand how you take your decision. Like I said above, I don't care much about that picture. I think you are too restrictive, but it seems that I am in a minority. I am not going to participate in this case further, unless you have new arguments, and you want specifically my opinion. Yann (talk) 12:56, 15 September 2012 (UTC)[reply]

I think you need to reconsider your views. De minimis is fundamentally the idea "yes, this is a violation of the law but it's too small a violation to matter, so it doesn't count. That basic understanding of what de minimis means has to inform our interpretation of how to apply it to particular cases of copyrighted works appearing in Commons files. Rd232 (talk) 14:16, 15 September 2012 (UTC)[reply]

To me, it is quite clear that your interpretation is often (if not generally) too restrictive. cf. the Le Corbusier's plaza. Yann (talk) 14:35, 15 September 2012 (UTC)[reply]

Deleted -FASTILY ^(TALK) 02:21, 21 September 2012 (UTC)[reply]