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