On 11/15/06, Matthew Brown morven@gmail.com wrote:
I think that the vast majority of these 'fair use' images are not images in either problem category. Most that I've seen are fundamentally images whose licenses/permission would permit them to be used on Wikipedia - in other words, we won't be sued for using them, nor will their creators have an issue for them to be used here. The issue is that the licenses, while permitting use on Wikipedia, don't count as sufficiently free to be acceptable.
In other words, 'fair use' is being used as an end-run around the prohibition of non-free with-permission. The only conflict is with Wikipedia policy, not the law or general ethics.
I'd be interested to in exploring your view on this further...
First, cases where the copyright holder doesn't care about the content being in Wikipedia are primary candidates for obtaining free licenses. I mentioned this in the part above the cutline. A primary objective of our project is increasing the free content of the world. By accepting non-free material from friendly copyright holders we are failing at that important goal.
Secondly, I and many others (as well as our policy) have advocated a position that only our uses where we are actually discussing the "copyrighted work" and not something which the copyrighted work simply contains is actually covered by fair use.
Careful consideration of the language of 17 U.S.C. ยง 107 as well as the legal, social, and economic motivations for fair use suggests this interpretation of the law. Furthermore, all the case law affirming fair use that I've seen has been around direct use (i.e. discussing the copyrighted work itself), and the substantial body of caselaw *denying* claims of fair use in parody are built around indirect parody (copy the work to make fun of something almost totally unrelated).
I have not found a good example of a court saying you can't copy X's work to critically comment on Y... but I'm tending to think that the reason is because no one but us is foolish enough to try.
As I pointed out in my prior post, go to getty image's editorial section ... look at the images available (and their prices :) ) and explain to me an interpretation of copyright law which would allow us to use these pictures in our biographies, but which wouldn't put getty's editorial images department out of business.
Because most of the pictures of people (especially living people) are not themselves notable, it can be argued, under the above understanding of fair use, that our use of these pictures is not clearly supported as fair use. (There are examples of picture of people which are notable, such as the classic photograph of Marlyn Monroe... but most pictures on our bio are just pictures, the same as hundreds of other pictures of the famous person).
Because of the above point, I'm not sure how you arrive with "most I've seen" being clear cases of fair use under the law. Could you clarify: I think we're either working with a different definition of fair use, or talking about a different set of images.
Generally, I prefer that we avoid the legal arguments as they can be heavily jurisdiction specific and without very similar case law they often come down to the whim of the court.
I believe that "maximize free content" is a more solid piece of guidance. Not only is it aligned with the project's goals and the foundation's mission, an effort to maximize free content also lands us in the most 'legally safe' zone because an effort to maximize free content would only allow us to use non-free content where we must and where no alternative is possible... which is the sort of circumstances the fair use provisions of our law are intended to protect.