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A community member writes to ask about the following issue:
If a statue is made in the United States where there is no FOP for statues but copies of it are made and taken to a FOP country and put on display, say in a museum, can Commons host images?
Thanks for asking that interesting legal question! While we cannot provide legal advice, we can provide some information that might help clear up this issue.
It looks like there are two main issues to discuss here. First, does Freedom of Panorama (FOP) extend to statues? Second, would Wikimedia Commons be able to host a photo of a statue, whether under FOP or another provision?
Does Freedom of Panorama extend to statues?
To answer the first question:
Ordinarily, if you take a photograph of a work (such as a statue, building, or public art) that is under copyright, the resulting photograph is considered a derivative work of the copyrighted work that was photographed. This means that you would usually need permission from the copyright holder of the photographed work to share the photograph on something like Wikimedia Commons. Some countries provide an exception to this aspect of copyright protection called Freedom of Panorama (FOP). FOP allows for the publication of photographs (or other images) based on buildings, sculptures, or other art, as long as those buildings/sculptures/art are permanently located in a public place.
In some countries, FOP rights extend to statues. This means that, in those countries, even if a statue is otherwise copyright-protected, there might be a way for someone to publish a photo of the statue, based on the FOP exception. Whether FOP applies depends on a few factors, like where the statue is located. Other factors come into play for other objects; for example, only a few countries allow FOP for 2-D murals.
Can Commons host a photo of a statue?
As for the second question -- whether Commons can host a photo of a statue:
In general, Wikimedia Commons can only host photographs that are either in the public domain or licensed under a free license, both in the country where the photo was taken and in the United States. FOP is one of the areas in which American copyright law sometimes conflicts with the laws of other nations.
In the United States, FOP is mostly limited to buildings (though some exceptions apply).
FOP rights generally do not apply to statutes or other artwork, even if they are permanently located in a public place.
However, other copyright provisions may apply that might allow Commons to host a photo of a statue. For example, the U.S. has special provisions for photographs of monuments and other memorials commissioned by the government, or the photographed work may have fallen into the public domain.
Furthermore, there are specific inquiries that must be made on a case-by-case basis. For example, you should evaluate whether the photograph itself qualifies as a derivative work of the copyrighted work. You may also need to do a fact-based analysis to see if the copyright holder met any copyright formalities that may have been required to keep it from falling into the public domain.
Additionally, if the object of the photograph is an authorized/licensed reproduction of a copyrighted work, it’s important to figure out the nature of the license. For example, the license may or may not permit free derivative work in the form of photographs. In cases where you don't know the terms of the license, you may not be able to determine whether a photograph is able to be freely licensed. However, if the license for a specific work clearly indicates that derivative works are not permitted, then it is likely that Commons would not be able to upload a photo of that specific work.
So, what does this all mean?
As you can probably tell, determining if a photograph of a reproduction of a statue located in Europe can be hosted on Commons is a somewhat complicated endeavor. FOP may apply to that photo in the country where the photo originated. However, because Wikimedia has to comply with U.S. copyright laws (even if we sometimes might not agree with them!), we have to look at whether the photo is capable to be freely licensed in the United States.
In the U.S., photographs of statues in public places are not protected by FOP. That doesn’t mean that Commons categorically cannot host any photos of statues, as other exceptions may apply. However, it does mean that Wikimedia generally cannot use FOP as a reason to host an otherwise copyright-protected photo of a statue on Commons.