Anthony DiPierro wrote:
On 5/19/06, Bryan Derksen bryan.derksen@shaw.ca wrote:
Anthony DiPierro wrote:
IOW, no, the desires of the copyright holder have no bearing on whether an image can be fairly used, because the fair use defense presumes that the copyright holder objects to the use.
I'm not a lawyer, but this seems like pretty simple logic to me...
I thought so too, and another editor who _is_ a lawyer (User:Bobak) looked at the situation in a fair bit of detail and agreed with my logic. But UninvitedCompany claimed at the end of the deletion review entry http://en.wikipedia.org/w/index.php?title=Wikipedia:Deletion_review&oldid=50533958#Image:O_RLY.jpg that the Wikimedia Foundation lawyer had had a look at the situation and said it should be deleted.
Please note that I never said it shouldn't be deleted, merely that fair use applies regardless of whether or not the copyright holder objects.
Absolutely. Sometimes the rights holder's grant may be poorly worded, or even ambiguous. At that point a fair use claim is often still available as a fallback position. One hurdle that we have created for ourselves is that the material must be usable by a downstream user. If the rights owner has given us the right to use the material, he is often silent about how far he extends that licence.
Also note that lawyers tend to take the safe route on these types of things - especially when the benefit of taking chances with the law is negligible.
Alas yes. Often to the point of preventing even cost free strategies.
Ec