proposed policy - Commons:Trademarks

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proposed policy - Commons:Trademarks

Brianna Laugher
It's pretty simple: I propose we formalise the policy of not accepting
trademarks, regardless of their copyright status.

http://commons.wikimedia.org/wiki/Commons:Trademarks

Comment, discuss, support, oppose, etc, on Talk page.

thanks,
Brianna
user:pfctdayelise
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Re: proposed policy - Commons:Trademarks

David Gerard-2
On 06/09/06, Brianna Laugher <[hidden email]> wrote:

> It's pretty simple: I propose we formalise the policy of not accepting
> trademarks, regardless of their copyright status.
> http://commons.wikimedia.org/wiki/Commons:Trademarks


Sounds plausible on the surface. But.
    * What about spurious trademark claims? Apple has been threatening
everyone who uses the prefix "i-" or the suffix "-pod".
    * Trademark law is far from uniform internationally. Which sets of
trademark laws do we decide to ignore?
    * How many and which countries must it be trademarked in?
    * How do we deal with claimed trademarks that are not registered trademarks?


- d.
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Re: proposed policy - Commons:Trademarks

Brianna Laugher
On 06/09/06, David Gerard <[hidden email]> wrote:
> Sounds plausible on the surface. But.
>     * What about spurious trademark claims? Apple has been threatening
> everyone who uses the prefix "i-" or the suffix "-pod".

Well, images don't suffer the problems of text in that regard.
Restrict it to demonstrated trademarks. Many things are obviously
trademarked which don't need to be examined that closely. There are
trademark offices, right? So we look them up. Or whoever's so keen to
delete looks something up.

But basically stick to the idea of: is it intending to primarily show
a trademark? If so, then this applies.

>     * Trademark law is far from uniform internationally. Which sets of
> trademark laws do we decide to ignore?

Well it's just like copyright then :) The general principle of
respecting the laws of the country of origin [of the thing, not the
image creator] works well IMO.

>     * How many and which countries must it be trademarked in?

See above, potentially just one.

>     * How do we deal with claimed trademarks that are not registered trademarks?

Hm... I mostly intend this to apply to registered trademarks. So I
don't know - status quo - they can stay?

cheers,
Brianna
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Re: proposed policy - Commons:Trademarks

Anthony DiPierro
In reply to this post by Brianna Laugher
On 9/6/06, Brianna Laugher <[hidden email]> wrote:
> It's pretty simple: I propose we formalise the policy of not accepting
> trademarks, regardless of their copyright status.
>

Why?
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Re: proposed policy - Commons:Trademarks

Brianna Laugher
On 06/09/06, Anthony <[hidden email]> wrote:
>
> Why?

This is answered on the Talk page.

Also to resolve the uneasy situation of especially German copyright
law, which appears to consider many designs "PD-ineligible" which
other countries would not. We have had many repetitive arguments about
this issue and a clear policy statement should cut a lot of them down.

Lest this sound terribly anti-dewiki, it's not about trying to catch
them out. It's about making our policies more in line with our
ultimate aim, to provide freely usable media. If we're doling out
trademarks, *regardless of their copyright status* we're not really
achieving that.

Brianna
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Re: proposed policy - Commons:Trademarks

Anthony DiPierro
On 9/6/06, Brianna Laugher <[hidden email]> wrote:
> On 06/09/06, Anthony <[hidden email]> wrote:
> >
> > Why?
>
> This is answered on the Talk page.
>
The talk page suggests that anything restricted by trademark law is
non-free.  That would mean that pretty much every page about any
product in any language Wikipedia is non-free, as the pages invariably
mention the product name.

I'd say that's moved out of the realm of reasonableness.

> Also to resolve the uneasy situation of especially German copyright
> law, which appears to consider many designs "PD-ineligible" which
> other countries would not. We have had many repetitive arguments about
> this issue and a clear policy statement should cut a lot of them down.
>
Are you sure this would resolve that situation?  Are all of these
designs registered trademarks?

Commons is global, and I don't think an image should be ineligible for
commons simply because it is public domain in a single country.  But
that's just my opinion.  If things are decided the opposite way I
still don't see the big deal.

> Lest this sound terribly anti-dewiki, it's not about trying to catch
> them out. It's about making our policies more in line with our
> ultimate aim, to provide freely usable media. If we're doling out
> trademarks, *regardless of their copyright status* we're not really
> achieving that.
>
I disagree strongly with that statement.  Even if you restrict it
severely to just registered trademarks, I still don't agree.

By this line of thinking do you also want to exclude all images of
living people from the commons, because images of people are not
completely free to use in any context.  Just as you can't use someone
else's trademark to sell a product, you can't use their photograph
either.  And some jurisdictions even extend this right to publicity
after death.  So we couldn't even keep pictures of some dead people on
commons.

I suppose this is a slippery slope argument, but slippery slope
arguments are pretty easy to defeat.  Just explain why trademarked
images are less free than images of living people, or modify your
proposal to exclude images of living people from commons too.

And if your proposal, with that modification, is accepted, then I
propose we start a Wikipedia Commons (note the "p") to put images
which can be freely used in an encyclopedia, even if they can't be
used on a bottle of dish detergent.

Anthony
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Re: proposed policy - Commons:Trademarks

David Gerard-2
On 06/09/06, Anthony <[hidden email]> wrote:

> And if your proposal, with that modification, is accepted, then I
> propose we start a Wikipedia Commons (note the "p") to put images
> which can be freely used in an encyclopedia, even if they can't be
> used on a bottle of dish detergent.


You mean, a service project designed to hold common images used on the
Wikipedias so that they don't have to keep duplicate images on the
projects? That's a great idea, and we should propose it to the
Foundation immediately! I wonder if we need to change anything in the
software to support it.


- d.
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Re: proposed policy - Commons:Trademarks

Anthony DiPierro
On 9/6/06, David Gerard <[hidden email]> wrote:

> On 06/09/06, Anthony <[hidden email]> wrote:
>
> > And if your proposal, with that modification, is accepted, then I
> > propose we start a Wikipedia Commons (note the "p") to put images
> > which can be freely used in an encyclopedia, even if they can't be
> > used on a bottle of dish detergent.
>
> You mean, a service project designed to hold common images used on the
> Wikipedias so that they don't have to keep duplicate images on the
> projects? That's a great idea, and we should propose it to the
> Foundation immediately! I wonder if we need to change anything in the
> software to support it.
>
I assume you're being sarcastic, as Wikimedia commons does exactly
this, but just thought I'd mention it because in your first post to
this thread you seem to like the idea of restricting trademarked
images.

Anyway, thinking about this more I have to say that providing free
images for people to use on their bottles of dish detergent is at
least currently outside the scope of Wikimedia.  The same could be
said of most other products too.  So unless trademark law restricts
the ability to use an image on textbooks, or encyclopedias, or
dictionaries, or newspapers, or quote books, or species directories,
then I don't see the problem with it being on commons.  Ironically,
the only image I can think of which this would restrict is the same
image which isn't even free wrt copyright law and would probably
continue to get grandfathered in anyway - the Wikimedia logo.

Anthony
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Re: proposed policy - Commons:Trademarks

Brianna Laugher
On 06/09/06, Anthony <[hidden email]> wrote:
> Anyway, thinking about this more I have to say that providing free
> images for people to use on their bottles of dish detergent is at
> least currently outside the scope of Wikimedia.

So you propose to change (or make more specific) the [[Commons:Project
scope]]. I am not necessarily opposed to that either. I just dislike
living in perpetual limbo-land and with the lack of guidance from
on-high, making concrete policies is one way to resolve it.

But anyway, I note that we've (the collective Wikimedia community,
that is) abolished WikipediaOnly permissions. Do you support that or
not? Because you can use those in Wikipedia et al, yet we require
stronger permissions. We also abolished non-commercial (NC) clauses,
even though Wikipedia itself is a non-commercial enterprise. Do you
support that?

I am not trying to be paranoid here, but I feel uneasy that we
recognise a (2D) video cover design is not free and yet somehow we
accept the infamous "Pringles photo" (
http://commons.wikimedia.org/wiki/Image:Pringles_(aka).jpg ) simply
because the original object is 3D. And also
http://commons.wikimedia.org/wiki/Image:BibelTV-logo.jpg ... doesn't
seem quite right.

Brianna
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Re: proposed policy - Commons:Trademarks

Anthony DiPierro
On 9/6/06, Brianna Laugher <[hidden email]> wrote:

> On 06/09/06, Anthony <[hidden email]> wrote:
> > Anyway, thinking about this more I have to say that providing free
> > images for people to use on their bottles of dish detergent is at
> > least currently outside the scope of Wikimedia.
>
> So you propose to change (or make more specific) the [[Commons:Project
> scope]]. I am not necessarily opposed to that either. I just dislike
> living in perpetual limbo-land and with the lack of guidance from
> on-high, making concrete policies is one way to resolve it.
>
Actually, I don't see anything in the project scope that needs to be
changed.  It says it right in the project scope: commons is for media
that is "useful for some Wikimedia project".  The purpose is not to
collect images to use on your products.

> But anyway, I note that we've (the collective Wikimedia community,
> that is) abolished WikipediaOnly permissions. Do you support that or
> not?

Yes, I support that.

> Because you can use those in Wikipedia et al, yet we require
> stronger permissions.

You can legally use them in Wikipedia, but you can't use them in any
other encyclopedia.  That's the problem.  Furthermore, they *are*
banned from Wikipedia, not just the commons.  Trademarked images
*aren't* banned from Wikipedia.  Do you think they should be?

> We also abolished non-commercial (NC) clauses,
> even though Wikipedia itself is a non-commercial enterprise. Do you
> support that?
>
Actually I think it's debatable whether or not Wikipedia is a
non-commercial enterprise.  They're non-profit, but they do engage in
commerce under the definition in US law.  But anyway, I'd go back to
my comment about Wikipedia-only permissions.  NC-only images are
banned in Wikipedia, not just commons.

> I am not trying to be paranoid here, but I feel uneasy that we
> recognise a (2D) video cover design is not free and yet somehow we
> accept the infamous "Pringles photo" (
> http://commons.wikimedia.org/wiki/Image:Pringles_(aka).jpg ) simply
> because the original object is 3D. And also
> http://commons.wikimedia.org/wiki/Image:BibelTV-logo.jpg ... doesn't
> seem quite right.
>
> Brianna

IMO the Pringles photo is restricted by copyright and is not free.
The pringles can design is a 2D work which is not freely licensed.

The Bibel TV logo is trickier.  I think it's a borderline case,
because it's somewhat free in many jurisdictions.  But this has far
more to do with copyright law than it does with trademark law.

In what jurisdictions is it legal to put the Bibel TV logo in an
encyclopedia article?  Presumably Germany (not copyrightable) and the
United States (fair use), but I don't know the complete answer to this
question, and I think the answer to it is the key to whether or not
it's an acceptable image.

Anthony
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Re: proposed policy - Commons:Trademarks

Anthony DiPierro
On 9/6/06, Anthony <[hidden email]> wrote:
> In what jurisdictions is it legal to put the Bibel TV logo in an
> encyclopedia article?  Presumably Germany (not copyrightable) and the
> United States (fair use), but I don't know the complete answer to this
> question, and I think the answer to it is the key to whether or not
> it's an acceptable image.
>
Thinking about this some more, I see two possible answers to get out
of "limbo-land".

1) If an image is useable under the rules of more than one project
(such as German Wikipedia and English Wikipedia), then it can be in
commons.

OR

2) If an image is useable under the rules of every single project,
then it can be in commons.

I could see arguments for either policy.  But the restrictions
certainly shouldn't be tighter than that.  If an image is useable
under the rules of every single project, then it certainly should be
allowed in commons.

Are trademarked, but public domain, images disallowed (per se) from any project?

Anthony
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Re: proposed policy - Commons:Trademarks

Platonides
I don't like the terms in what it's formulated, as it would fall down much
photos i feel free.
However, i don't think [[Image:Pringles (aka).jpg]] free, and
[[Image:BibelTV-logo.jpg]]
is a {{logo}} for me.

I like the way Anthony tries to go.
Useable under the rules of more than one project is not good for me. e.g:
dewiki & dewikisource?
It'd be the image is free under the terms of X projects (as English
Wikipedia is not usable).
What really matters is probably the scope of the licensing. if an image is
free on EEUU and Europe,
it should be allowed on commons, while not being copyrighted on Brunei is
probably not.

The problem with the {{Logo-Germany}} is that it's a box-for-all, quite
similar to the fair-use.
If it's PD on the trademark registration country, it should be ok, but *who
decides the ineligibility?*
Quite problematic. But i wouldn't go so far as your proposal.



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Re: proposed policy - Commons:Trademarks

Alison M. Wheeler
On Wed, September 6, 2006 16:07, Platonides wrote:
> If it's PD on the trademark registration country, it should be ok, but
> *who decides the ineligibility?*

The way this thread is starting to read I'm almost wondering if we're
heading towards the conclusion that 'one size will never fit all' as each
country / jurisdiction will operate different restrictions for the same
material and for us to define something as 'commons' usuable worldwide
will be close to impossible.

I hate to suggest it, but are we looking towards some sort of infobox on
each image/media page with a table of country/ies and statuses, leaving it
to the user in each instance to confirm what status applies to their
proposde use?

Alison Wheeler
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Re: proposed policy - Commons:Trademarks

Matthew Brown-5
In reply to this post by Brianna Laugher
As posted on the talk page: copied here for those not following there:

I would '''strongly''' disagree with any attempt to bar depictions of
products on Commons.  If Commons goes down the road of prohibiting any
content where there may be any restriction on its use under any
circumstances, the project will prove utterly worthless for my use,
and many others'.  The fact is that almost any product of humankind in
recent times has some kind of restriction on use, somewhere.
Manufactured objects, almost certainly, especially if they have
visible trademarks on them (which almost all do, these days) or a
distinctive design (whether considered copyrighted or design protected
in another way).  This covers pictures of cars, computers, electronic
devices of all kinds, buildings, and nearly everything I can think of.

Pictures of living people also have restrictions on them.  In some
jurisdictions, there is in fact no way for any model release or
contract to remove all restrictions; the person depicted still has
some rights over the image.  Pictures which contain living people even
incidentally are also restricted, especially if no model release or
contract has been signed.  The picture as a whole is PROBABLY legally
non-problematic, but if cropped down to show only a person or group as
the main subject would be a problem.

Also, in many countries, creators have inalienable moral rights over
their creations that cannot be signed away.  These are legal
restrictions over and above those of the GFDL or other free license.

If commons goes down the road that any restrictions on use at all
except those specified by GFDL or CC-By-SA are unacceptable, then
Commons will be a repository only for public-domain art (but beware of
those copied without the consent of the current owner!), pictures of
landscapes and growing things (but even then, beware!  Some landscape
features have been trademarked ...) and suchlike.  That Commons is
nearly useless to me, and I will not use it or contribute to it.

-Matt
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Re: proposed policy - Commons:Trademarks

Brianna Laugher
In reply to this post by Alison M. Wheeler
On 07/09/06, Alison Wheeler <[hidden email]> wrote:
> I hate to suggest it, but are we looking towards some sort of infobox on
> each image/media page with a table of country/ies and statuses, leaving it
> to the user in each instance to confirm what status applies to their
> proposde use?

We have something a bit like this with
http://commons.wikimedia.org/wiki/Template:Logo-Germany .

Maybe this is the way to go. Many users will ignore such fine print,
though. Though I guess that's a problem then for individual projects,
not Commons...

I don't know. Copyright law also seems to be very difficult to resolve
sometimes, but we are muddling along.

Brianna
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Re: proposed policy - Commons:Trademarks

Brianna Laugher
In reply to this post by Matthew Brown-5
On 07/09/06, Matt Brown <[hidden email]> wrote:
> Pictures of living people also have restrictions on them.  In some
> jurisdictions, there is in fact no way for any model release or
> contract to remove all restrictions; the person depicted still has
> some rights over the image.  Pictures which contain living people even
> incidentally are also restricted, especially if no model release or
> contract has been signed.  The picture as a whole is PROBABLY legally
> non-problematic, but if cropped down to show only a person or group as
> the main subject would be a problem.

Yes... well probably it would do no great harm to have much stronger
requirements with regards to model releases and the like. I don't
think policy on this area is complete. Morally we have more of a
responsibility to develop something watertight here, but from a legal
perspective trademarks seem more dangerous to me due to large
companies' deep pockets (and attraction to the courts).

> If commons goes down the road that any restrictions on use at all
> except those specified by GFDL or CC-By-SA are unacceptable, then
> Commons will be a repository only for public-domain art (but beware of
> those copied without the consent of the current owner!), pictures of
> landscapes and growing things (but even then, beware!  Some landscape
> features have been trademarked ...) and suchlike.  That Commons is
> nearly useless to me, and I will not use it or contribute to it.

OK, but you don't need to be so dramatic. No one wants to see that
happen. It's not like I am the last authority on policy anyway -- I
posted this to get other people's opinions, not merely inform you
before it was enacted. ;)

I didn't think this up to be the ultimate killjoy. I thought it up to
try and solve some of the contradictions I see in how we handle images
today. Do you think the Pringles image is free? The German logos?

What about version 2: instead of applying to all registered
trademarks, apply to all registered trademarked logos. This should
remove the ridiculous cases like you mentioned above (car body shapes,
landscape, device designs etc). But still includes Pringles boxes &
German logos.

cheers,
Brianna
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Re: proposed policy - Commons:Trademarks

David Gerard-2
On 07/09/06, Brianna Laugher <[hidden email]> wrote:

> What about version 2: instead of applying to all registered
> trademarks, apply to all registered trademarked logos. This should
> remove the ridiculous cases like you mentioned above (car body shapes,
> landscape, device designs etc). But still includes Pringles boxes &
> German logos.


I think it's the wrong place to apply a policy.

If the usage is the problematic thing, we can't protect people from
using something in a way that contradicts local law, any more than we
can stop them from reusing a GFDL image in print without reprinting
the entire GFDL next to it. A licence template does not constitute
legal advice either, and we can't guarantee something marked with a
particular licence is in fact under that licence - do we remove all
images the Foundation doesn't have signed paper on? (i.e., operate at
the level of assurance the FSF operates at.)

Ultimately we can only be people's mothers to a certain extent.

Commons was conceived as a service project for the Wikipedias, then
people started treating it as an area to make a personal name for
themselves on as if it were a wholly separate entity; if the second
group of people make it useless for the first purpose, then we would
have to duplicate the service project aspect. Which strikes me as
ridiculous.


- d.
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Re: proposed policy - Commons:Trademarks

Alison M. Wheeler
In reply to this post by Brianna Laugher
On Thu, September 7, 2006 04:38, Brianna Laugher wrote:
> Maybe this is the way to go. Many users will ignore such fine print,
> though. Though I guess that's a problem then for individual projects,
> not Commons...
> I don't know. Copyright law also seems to be very difficult to resolve
> sometimes, but we are muddling along.

I've put up an idea of what I meant as a status table at
http://commons.wikimedia.org/wiki/User:AlisonW/Licensestatustest Obviously
a template solution would be used to get the countries and standard texts
inserted, but it might work and also provides us with a caveat for when
(rather than if!) images get used where they shouldn't be ...

Alison Wheeler
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Re: proposed policy - Commons:Trademarks

Anthony DiPierro
In reply to this post by Brianna Laugher
On 9/6/06, Brianna Laugher <[hidden email]> wrote:

> On 07/09/06, Matt Brown <[hidden email]> wrote:
> > Pictures of living people also have restrictions on them.  In some
> > jurisdictions, there is in fact no way for any model release or
> > contract to remove all restrictions; the person depicted still has
> > some rights over the image.  Pictures which contain living people even
> > incidentally are also restricted, especially if no model release or
> > contract has been signed.  The picture as a whole is PROBABLY legally
> > non-problematic, but if cropped down to show only a person or group as
> > the main subject would be a problem.
>
> Yes... well probably it would do no great harm to have much stronger
> requirements with regards to model releases and the like. I don't
> think policy on this area is complete. Morally we have more of a
> responsibility to develop something watertight here, but from a legal
> perspective trademarks seem more dangerous to me due to large
> companies' deep pockets (and attraction to the courts).
>
Dangerous how?  Do you know of any cases where an encyclopedia was
sued for violating trademark law when it included a trademarked image
in one of its articles?  Are there any trademark holders threatening
to sue Wikimedia for trademark infringement, in cases where the
copyright status is clear?

What about the forks and mirrors?  Have any of them complained that
*they* were getting threatened over trademark issues?

I don't know the answer to these questions, so maybe it is a problem
and I just don't know about it.  If it is a problem (dangerous from a
legal perspective), then we should be talking about banning
trademarked images from all Wikipedias, not just from Wikimedia
Commons.  If it isn't a problem, then I see no reason for a new
policy.

I've decided to modify my suggestion slightly: "If an image is useable
under the rules of the majority of Wikimedia projects, then it can be
in commons.  Otherwise, it can't."  I suspect the difference between
"the majority of" and "all" is minor, but this removes some corner
cases (maybe French Wikipedia is especially paranoid about lawsuits
over photos of buildings, for instance).

Anthony
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Re: proposed policy - Commons:Trademarks

David Monniaux-2
Anthony wrote:

>Dangerous how?  Do you know of any cases where an encyclopedia was
>sued for violating trademark law when it included a trademarked image
>in one of its articles?  Are there any trademark holders threatening
>to sue Wikimedia for trademark infringement, in cases where the
>copyright status is clear?
>
>What about the forks and mirrors?  Have any of them complained that
>*they* were getting threatened over trademark issues?
>
>I don't know the answer to these questions, so maybe it is a problem
>and I just don't know about it.
>
The kind of things that do happen is as follows:
* In an article, we describe some product under a brand name, perhaps
with the false belief that this brand name is a "common term" and not a
trademark.
* In the same article, we use an image of a product from a competitor.
* Both the producer of the item described in the article and the
producer of the photographed item may argue that we infringe on their
trademarks.

See? It's a question of context.

(When I say "that do happen", I mean that I have actually seen such
complaints sent to the Foundation or local chapters.)

> If it is a problem (dangerous from a legal perspective), then we
should be talking about banning trademarked images from all Wikipedias,
not just from Wikimedia Commons.

I'm sorry, but the world is not in binary.

If you want not to risk trademark infringement, you would have to
prohibit ever mentioning a brand name in Wikipedia, since merely
mentioning a trademarked brand name in a context where the brand name is
misattributed to another holder may expose us to litigation. This is a
rather ridiculous proposal.

My humble opinion is that trademarks in images do not pose special
issues as long as the context of use of these images is reasonable for
our encyclopedic goals (i.e. we don't describe Foobie Cola by putting a
can of Foobar Cola).

Now, you will tell me that this makes in practice "unfree" images
because you won't be able to use them for any purpose. Another false
problem. Our images of living persons are not usable for any purpose in
a number of major jurisdictions, simply because misusing such images may
constitute an infringement on those person's privacy or "right to
image". As an example, if you take a photograph of a personality and
photoshop it onto a nude body, the personality may well argue that you
deliberately misrepresented her. Also, if you use a photograph of a
recognizable person in an advertisement, without that person's
authorization, that person, in many jurisdictions, will be able to argue
that you misused her image. Again, it's all about context.

>  maybe French Wikipedia is especially paranoid about lawsuits over
photos of buildings, for instance

I think a much more reasonable proposal, instead of trying to placate
all possible litigation aspects (which is ridiculous given how our way
of operating makes us a huge target for libel complaints), is to take a
pragmatic view: what do we reasonably risk?

-- DM
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