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Commons:Deletion requests/Files in Category:Found photos from the Thomas Hawk collection

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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.

Files in Category:Found photos from the Thomas Hawk collection

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These are United States photos from the flickr "found photos" collection recently discussed in the Village Pump. The assumption is that these are mostly personal (family) photos never published anywhere else before they were scanned and published in the flickr collection. So, for example for File:Catherine Budy, March 13, 1938.jpg, {{PD-US-no notice}} wouldn't be applicable as this template relies on publication "in the United States between 1928 and 1977, inclusive, without a copyright notice". Or another example: File:Two women with a car, 11-1936.jpg. If we can assume that this is a personal photograph that was never published before (and it very much loooks like that) and the first publication was in the flickr "found photos" collection (thus, "2003 or later"), then per COM:HIRTLE, I assume it's protected for "95 years from publication OR 120 years from creation, whichever expires first". In this case of a 1936 photo, that would be 2056 (1936 + 120). As the pictures are now published (on flickr), I'm using the Hirtle entries for published works, not for unpublished ones, for my argument.

I will note that RAN has argued, also in other discussions, that "USA case law has sided with the concept that images found in the wild have been made public once they leave the custody of the creator", but I haven't seen him back that claim up with references, and I haven't found it in our Commons documentation. To me, assuming "publication" as soon as a photograph "leaves the custody" of the photographer (like: photographer takes photo, gives it to a family where it then rests in the family album) at least doesn't seem to be consistent with our usual assumptions regarding "publication". But I would be happy to accept this with reliable sources, we also then would need to adapt COM:HIRTLE and similar documentation pages, probably.

Gestumblindi (talk) 11:04, 5 November 2023 (UTC)[reply]

  •  Keep Mass deletion without real arguments. At least you should create individual DRs if you have an argument against a specific image. Some of them have obviously been publushed at the time of creation, e.g. File:Delta Gamma 1955.jpg (obviously distributed to people on the picture), File:Mr and Mrs Ova Mead, wedding portrait.jpg and File:Danha and Jules wedding day, 02-08-1969.jpg (distributed as wedding announcements), etc. Then we assume that documents are published as the time of creation unless proven otherwise. And them please read COM:L#Old orphan works. And then there are pictures from around 1900 which should be {{PD-old-assumed-expired}}: File:Portrait of a black man with a moustache and a tie.jpg. Then it is complete nonsense to think that 100-years old picture such as File:Two men in boater hat by the sea.jpg and File:Allen age 15 yrs, Emmius age 10 years, Mary Jean age 3 yrs, Summer 1922.jpg were never published before 1989 (yes, it still required a copyright notice until that date). Then you forgot some of my uploads. So not a well-thought DR. Should I continue? Yann (talk) 12:25, 5 November 2023 (UTC)[reply]
    I'm completely open to arguments for keeping specific pictures, and feel free to add "keep" votes to those. I think that for most certainly no kind of prior publication can be assumed, however. For File:Delta Gamma 1955.jpg, I wonder whether (assumed) distribution to the limited group of depicted persons already counts as "publication". Wedding portraits such as File:Mr and Mrs Ova Mead, wedding portrait.jpg are usually also not widely distributed. File:Allen age 15 yrs, Emmius age 10 years, Mary Jean age 3 yrs, Summer 1922.jpg is too recent for {{PD-old-assumed-expired}} and I don't see why you would assume that it is "complete nonsense to think" that this image was never published before 1989, as it looks like a family photo where it's actually quite likely that it was never published - unless we follow RAN's argument, but he hasn't cited any sources for the "publication once they leave the custody of the creator" claim in his response here either. File:Portrait of a black man with a moustache and a tie.jpg and File:Two men in boater hat by the sea.jpg aren't dated more precisely than "early 20th century" so we really can't say whether {{PD-old-assumed-expired}} would be applicable. - Regarding "forgetting some of your uploads", I only nominated the images in Category:Found photos from the Thomas Hawk collection for the time being, because they're all US photos. - And finally, I was really not happy how you introduced COM:L#Old orphan works in June 2023 with a proposal by yourself, which you then closed also yourself as "accepted", which I think is poor style and I don't think that the discussion was that unanimous. My own position there was "if a picture looks like it was created with publication in mind (especially publicity and similar photos), it is a reasonable assumption that it was published close to the time of creation; photos made for a family album are a different matter", and this is still the stance upon which also this DR is based. Gestumblindi (talk) 20:54, 5 November 2023 (UTC)[reply]
    Then close this, and open new DRs for specific cases. I am going to repeat myself: at that time, publication occurs when the photos left the photographer's custody. Yann (talk) 21:23, 5 November 2023 (UTC)[reply]
    Certainly not, because I would need to nominate nearly all of the photos in the category. As I said above, you certainly can add "keep" votes to individual files in this nomination if you think there is a strong argument for keeping those. Regarding "publication occurs when the photos left the photographer's custody", neither you nor RAN have cited any sources for this assumption so far. As I said in my nomination, if you have good sources you can cite (and then please add to the appropriate Commons documentation pages), I will gladly accept it - and then also withdraw my deletion request. Gestumblindi (talk) 21:27, 5 November 2023 (UTC)[reply]
    We usually assume old pictures were published at the time of creation. I am being bold here, but that's what is done on Commons recently. Yann (talk) 21:30, 5 November 2023 (UTC)[reply]
    @Yann: "We usually assume old pictures were published at the time of creation" - I'm actually quite on the same page there as you and have advocated for such a view in the past as well, but I think that "found photos" that seem to come from family albums (mainly) are a different matter. The default assumption of publication at the time (or close to the time) of creation isn't applicable for those, in my opinion. Most prior discussions didn't focus on photos of that type. Gestumblindi (talk) 21:34, 5 November 2023 (UTC)[reply]
    @Gestumblindi: There are at least 5 different cases regarding copyright here: 1. pictures from around 1900 (PD-old-assumed-expired), 2. pictures from 1904-1928 (PD-US-expired), 3. pictures from 1929-1977 (PD-US), 4. pictures from 1978-1988 (PD-US-1978-89), 5. pictures from booth machines which should be {{PD-ineligible}} or {{PD-algorithm}}. And then there are prints and slides, for which there are different publication arguments. Combining all in one DR is very bad practice whatever are your arguments. Yann (talk) 22:09, 5 November 2023 (UTC)[reply]
  • I'm not sure I follow the logic here. The argument seems to be that if a random person finds an unpublished photo and posts it on Flickr, a new copyright is created and we can't use it here. But if they post it here first. we deem it {{PD-US-unpublished}} and it can then legally be posted on Flickr. Why the difference? Also, is the nomination for everything in the category, or just the images listed above? Andy Mabbett (Pigsonthewing); Talk to Andy; Andy's edits 12:46, 5 November 2023 (UTC)[reply]
    The nomination is for everything in the category at the time when I created this request, which is all of the images listed above. I didn't see any images in this category that would be old enough (pre-1903) for {{PD-US-unpublished}} but of course it's possible that there will be some in the collection that would qualify for that, though I think that none have been uploaded to Commons so far. See COM:HIRTLE - {{PD-US-unpublished}} is only for works by known authors who died before 1953, or which have been created before 1903, if the author isn't known. Gestumblindi (talk) 20:40, 5 November 2023 (UTC)[reply]
    PS: @Pigsonthewing: I notice that Yann uploaded more images to the category today, so there are now more images than I nominated (when I nominated all that were in the category at this point). I'm not going to nominate the new uploads for now, but await the outcome of the deletion request. Gestumblindi (talk) 21:07, 5 November 2023 (UTC)[reply]
  •  Keep If we assume that publication happens the first time something is posted on the internet and not once it leave the custody of the creator then there would be a ton of images on here from GLAM organizations that suddenly wouldn't be OK because they were the first ones to "publish" the images. So its clearly a flawed and unworkable standard even if correct, which I don't think it is, but why should GLAM organizations be able to upload what are essentially found photos on their end in mass and that be OK, but a user doing the same with a few photographs from Flickr not be? It really doesn't make sense. --Adamant1 (talk) 13:10, 5 November 2023 (UTC)[reply]
    GLAM uploads actually usually are of pictures with known provenance, authors, and copyright status, not "found photos" without any of the essential information, so I don't think that comparison fits. Gestumblindi (talk) 21:16, 5 November 2023 (UTC)[reply]
    Some sure. Quit a lot of photographs are donated or baught from private collections and the GLAMs thrmselves don't gurantee their copyright status. People on Commons just tends to take their word at face value and don't bother to read fine print, which usually says they don't know the copyright status of the photograph, "because GLAM." I'm sure a lot of photograps from GLAMs on here would have questionable copyright status' or be copyrighted if we scrutinized them as much as we do with photographs from other sources. --Adamant1 (talk) 21:27, 5 November 2023 (UTC)[reply]
  •  Keep Photo booth images would not be eligible for copyright in the USA, there is no one operating the shutter. The Wikimedia Foundation upheld this as recently as 2011. See: Monkey selfie. I can see arguing that an image has never been made public if we find a copy in a commercial archive like Getty Images, where they are making an active copyright claim. Getty Images buys negatives directly from photographers, and we assume they have been unseen by the public since creation, until proven otherwise. We have also accepted that reliable institutions can release images found in the wild under "no known copyright restrictions" at Flickr Commons, and we have honored claw backs from the public domain if a creator is identified. --RAN (talk) 16:01, 5 November 2023 (UTC)[reply]
  • ( Comment As largely personal family photos, how do these images pass the requirement for commons images to be educational? I just don't see a reasonable use case for most of these images. Many of the image descriptions contain personal information about non notable people. Hemiauchenia (talk) 22:45, 5 November 2023 (UTC)[reply]
    It seems like there's a pretty lax standard in general on here when it comes the educational merits of historical photographs. You could probably argue that this image of a black man with moustache isn't educational, but it's no different then hundreds of thousands of other similar images that are already being hosted on here. Not to say that's an excuse to keep the image, but there's clearly consensus that images of black men with moustaches, modern or otherwise, are in scope. And this isn't really the venue to have that changed. --Adamant1 (talk) 23:17, 5 November 2023 (UTC)[reply]
    • Every image from every time period captures fashion and interior design. You can earn a degree in either, I imagine to earn a degree in either you need factual material to study. You can look at any single image and question whether we need it or not. --RAN (talk) 04:44, 6 November 2023 (UTC)[reply]
 Keep RAN is paraphrasing U.S. case law that basically says that publication before 1978 occurred when a photograph left the custody of the original photographer. There is a DR that has citations of this, and I'm sure @Clindberg: can remind me again of which one that was. Abzeronow (talk) 15:42, 6 November 2023 (UTC)[reply]
It had to do with the dividing line between "limited publication" (which did not lose copyright) and "general publication" (which did). A canonical example is that a book author distributing copies of manuscripts to publishing houses would be "limited publication", with the general publication happening when the publishing house actually distributed copies to the public. Naturally, different U.S. circuits have come up with some different tests for it. A common one though is distributing copies to a limited set of people, for a limited purpose, and no right of further distribution. If it fails any of those three tests, it would be general publication. That definition is mentioned in the Copyright Compendium section 1905.1 -- Generally, a limited publication is the distribution of copies of a work to a definitely selected group with a limited purpose and without the right of diffusion, reproduction, distribution, or sale. A limited publication is not considered a distribution to the public and, therefore, is not publication. See White v. Kimmell, 193 F.2d 744, 746-47 (9th Cir. 1952) (explaining that a publication is limited if it “communicates the contents of a [work] to a definitely selected group and for a limited purpose, and without the right of diffusion, reproduction, distribution or sale ... [and is] restricted both as to persons and purpose.”). One of the examples they give there says Giving away copies of a photograph without further restriction constitutes publication of that work. Such giving away had to happen before 1989 of course, and with authorization of the copyright holder. So, it's a pretty common question to find out how a copy left the control of the copyright owner, and whether that action constituted general publication. Lots of gray area, naturally. Carl Lindberg (talk) 21:23, 6 November 2023 (UTC)[reply]
Thanks Carl for the detailed explanation. I think all these files can be considered to meet "general publication", as when the photographer distributed these, even if to one person only, s/he didn't restrict further distribution. Yann (talk) 19:52, 9 November 2023 (UTC)[reply]
I beg to differ. Giving photos to a family which intends to keep them in their family album doesn't necessarily amount to "giving away copies of a photograph without further restriction", in my opinion. Also, we don't really know anything about the circumstances in which most of these photographs were taken / transferred / kept. Several look like amateur photos taken directly by family members, so they haven't necessarily been "given away" by the photographer - if a family member took the photo, then put it in an album, until it was later "found" (maybe sold on ebay), scanned and published on flickr. @Clindberg: What is your opinion on the files nominated here? Gestumblindi (talk) 22:56, 9 November 2023 (UTC)[reply]
What the photographer's client does with the picture doesn't matter. What does matter is that when selling a picture, the photographer doesn't restrict what the client will do with it. Yann (talk) 11:58, 10 November 2023 (UTC)[reply]
I presume that many, if not most of these photographs were never sold by a professional photographer, but, like File:1951 Pontiac Chieftain.jpg which looks like an amateur photo, directly taken by a family member or friend and kept in the family until the album was sold in a yard sale, on ebay or the like. Gestumblindi (talk) 10:57, 11 November 2023 (UTC)[reply]
It's kind of pedantic, but at least in the United States most, if not all, photographs taken between like 1910 and the mid 1950s were printed professionally (or semi-professionally) through either a photography studio or local pharmacy. Sometimes there were amateurs who would do it in their garage or a spare room, but they were the rare exception. Cameras weren't super available at that point either. So 99% of the time one person in the family would take photographs on a family trip or they would have a stuido photograph do portraits. Then the negatives would have to be professionally developed. Those professionals would then keep copies of the negatives in case the original person who ordered the prints or someone in their extended family wanted copies. Sometimes they also republished images from the negatives as postcards or include them in small run, independently published photography books.
Anyway it's hard to tell who owns the original copyright in those cases. Since the negatives aren't "published." The printed photograph is. So who would own the copyright in that case? Who knows. I do know that "publication" would have taken place at the time of printing though since the "printer" would often save and reprint copies of the negatives. Otherwise you'd have to argue the person who printed these photographs was the original photographer, who developed the negatives in their spare room by mixing chemicals on some photosensitive paper, but you'd have a hard time doing that. So...--Adamant1 (talk) 21:16, 11 November 2023 (UTC)[reply]
Have to admit, the "found photograph" thing does rub me the wrong way. I think if a photo was taken by a family and remained in that family, there is a good chance it remained unpublished. Actual copies needed to be distributed to others (even if just loose friends) to lose copyright. In terms of who actually developed the photos, I don't think that mattered -- just who actually took the photo and thus had the initial copyright. For say an old studio photograph, the photo was distributed from the photographer to the family, and almost certainly with no restrictions on further distribution. Nothing is 100% in this area, of course. Looking at a sampling... there are some I would go both ways. Stuff that looks like it could been actually taken by a family member, and remained in a family photo album until recently, could well be issues if not old enough. How were these images "found"? If someone sold family photograph albums long ago, that would probably be OK, but otherwise not sure. Normally I don't like keeping stuff with that little provenance. That said, there are several which appear to be studio photos (say File:Booth photograph of an unknown girl, 2.jpg or File:Three portraits of Libby Goldberg.jpg) and were probably published then. File:Seated woman with flowers.jpg for sure looks like that. File:US Air Force man portrait.jpg has a PD-USGov license. File:La Jolla shore on Pacific Ocean, Bird haven at Pelican Rocks and far away to get the birds, October 5, 1929.jpg looks like a more professional print when you look at the Flickr original. A lot of the others though leave me nervous, as date of publication is more likely when the photo album was distributed outside the family, which I don't think we know. Some may be scope issues too, just photos of random people. I'm sure some to an extent are interesting to document typical dress of the day, but not sure about all of them. I'm not sure it's possible to vote on the list as a whole -- there are definitely some I'd keep, and some where I don't think we know enough. Obviously the real-life risk is minimal, but for some I'm not sure we really have enough info. Carl Lindberg (talk) 18:44, 12 November 2023 (UTC)[reply]
How would anyone prove who took the original photograph anyway? Like I don't think someone saying they seem to remember their great uncle having a camera in the 30s would hold up in court. Not to mention my guess is that most, if not all of these photographs probably lacked/lack copyright notices. So they wouldn't have been copyrighted to begin with. --Adamant1 (talk) 20:13, 12 November 2023 (UTC)[reply]
Copyright notice only mattered if they were generally published; that is why the question is important. If none or only limited publication, then they kept their common-law copyright (at least until 1978, when it changed to 70pma if a known photographer or 120 years from creation). If they were published before 1989 though, the lack of notice would be meaningful, but you only needed a copyright notice on published copies, since that is the point where common-law copyright ended and federal copyright started, and federal protection needed notices. Carl Lindberg (talk) 00:39, 13 November 2023 (UTC)[reply]
@Clindberg: Could we at least agree that "booth photographs" were published? These were most probably used for some official documents anyway. And File:Delta Gamma 1955.jpg was certainly published, as well as pictures from the 1920s. What about wedding photographs? Yann (talk) 20:23, 12 November 2023 (UTC)[reply]
Wedding photos comes into that gray area of who owned the copyright of commissioned works before 1978. By the photo studio example, they could be published. Copies likely go to several people. Agreed on File:Delta Gamma 1955.jpg, that is fine. If booth photographs means a photo booth, there may be copyright eligibility issues as well, but yeah I'd say those are OK. Carl Lindberg (talk) 00:39, 13 November 2023 (UTC)[reply]
I'm always open to reasonable arguments, so I'm going to withdraw my deletion requests for all photos that look like photo booth photographs as well as for File:Delta Gamma 1955.jpg. I'm striking them from the list and will remove the DR template from the file description pages myself. Note, I'm upholding my request for File:Catherine Budy, March 13, 1938.jpg because the background doesn't look like a photo booth to me. The other photos (including wedding photos) I still think are problematic, also in light of Carl's comments. I also don't see why pictures from the 1920's should be considered "certainly published". I have family photos of our own family from this time that never left the family album which is still in the family's possession. Gestumblindi (talk) 21:05, 13 November 2023 (UTC)[reply]
  •  Comment This is just my assessment of the files that are left and can be kept based on Carl Lindberg's comments and my research, but I have a lot of experience in the area. So I think it fits.
  • I'm going to quibble here. We agree that it looks like a personal family photo, and from my personal experience with old family albums, these can stay for decades in an album without any copies being made. My assumption here would still be "unpublished before the flickr publication". Gestumblindi (talk) 20:00, 14 November 2023 (UTC)[reply]
  • "Semi-posed press photograph"? Why do you think that? I don't think these are well-known people and the Exif data says "handwritten on back of photograph, "Carol Ralston, Ursula Reimer, Ruth Magee, Joan Hess, Patty Lynas, Nedra Greer, waiting for mail at P.O." - so it looks like a personal photo of someone's acquaintances waiting for their mail to me. It has all the characteristics of a personal snapshot. Gestumblindi (talk) 20:00, 14 November 2023 (UTC)[reply]
  • Why do you assume it is a postcard? The corners show that the photo was printed on thick, robust paper or rather cardboard, which makes it look like a Carte de visite to me. As a carte de visite was made for distribution ("commonly traded among friends and visitors", as the article says), I can agree with keeping that one, though, even if I disagree with assuming it's a postcard. I will withdraw that nomination. Gestumblindi (talk) 20:00, 14 November 2023 (UTC)[reply]
— Preceding unsigned comment added by Adamant1 (talk • contribs) 00:44, 14 November 2023‎ (UTC)[reply]
@Adamant1: My assessment is partially different, I'm adding comments above to the files you commented upon. Gestumblindi (talk) 20:00, 14 November 2023 (UTC)[reply]
That's fine. I could quibble about a few of your points, but this is already long enough. If I can make a suggestion, it might be good to procedurally close this and renominate the remaining files for deletion in a separate DR. BTW, cartes de visite were usually regular photographs glued on a hard cardboard backing, not images printed on the cardboard itself like with postcards. --Adamant1 (talk) 20:59, 14 November 2023 (UTC)[reply]
As I have withdrawn a good deal of my requests and we had a quite thorough discussion on many cases, I think it would be more efficient if the processing admin made a decision on the remaining ones (also individually) directly here instead of me having to nominate the files again, which I would certainly do, but well, leaving that to the closing admin. Gestumblindi (talk) 10:56, 16 November 2023 (UTC)[reply]
That works to. --Adamant1 (talk) 13:20, 16 November 2023 (UTC)[reply]

Kept: per discussion. Flickr is not the first publication of the photos: this happened when they were print. For family photos this happened probably long time ago, enough to be PD (e.g. Allen age 15 yrs.). If there is a serious doubt that the first publication ever is on Flickr (e.g. the positive was rendered via software in that occasion, please open a separate DR). Ruthven (msg) 09:13, 24 January 2024 (UTC)[reply]

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