[WikiEN-l] Fair use in free images (was: Is it true...)

Anthony wrote: I think this is the core of the issue, and a matter that also in general ought to be further clarified. Wikipedia, as a whole, is distributed under the GFDL. It is a matter of some debate exactly _who_ should be considered the actual distributor, but that is at most only tangentially relevant to the matter at hand. In any case, this implies that there are only three cases where content, whether text or images, may be legally incorporated into Wikipedia: either a) the content must fall outside the scope of copyright entirely, b) the copyright owner must have released it under a license permitting at least redistribution under the terms of the GFDL, c) or its inclusion in Wikipedia must legally qualify as fair use.[1] The first two types of content we may designate as free, and the last as unfree. Wikipedia has different policies for the two: free content may be used in any manner as long as the license requirements are satisfied, whereas unfree content must pass a set of fair use guidelines based on, but going far beyond, those in U.S. law. In particular, the inclusion of unfree non-textual content is only permitted in the encyclopedia proper (and implicitly on image pages), even if broader usage might be permitted by law, and they are entirely excluded from Commons. A point to be noted here is that a work released under a free license may contain portions that are unfree; Wikipedia itself is an example of such a work. Such a work -- and any derivative work thereof -- will remain free and legal to copy and redistribute only as long as it is not transformed in such a manner as to render the claim to fair use invalid. For example, if one were to extract an album cover from Wikipedia, or the content of a billboard from a free photo of a city street, and use the resulting image prominently in a commercial context, the use would almost certainly no longer be legal even if one complied with all the license terms of the work from which the image was extracted. The question then becomes: should such free images containing fairly used unfree elements be treated as free or unfree for the purposes of Wikipedia (and Commons) policy? Generally, the traditional answer seems to have been to treat an image as free if it would be legal to freely distribute as a stand-alone work outside the context of Wikipedia. I personally find this a reasonable standard, though it does produce some apparent paradoxes, such as the fact that removing parts of a free image can make it unfree, or that the legally fair inclusion of an unfree element in certain parts of the project may be against policy _unless_ it is (fairly) included as part of a free stand-alone "wrapper" work. That is not to says that the issue hasn't been subject to numerous debates, both generic and specific. A particular dispute I recall involved a picture of a drive-in fast food restaurant that included a prominent sign bearing the restaurant's logo. A related source of disputes have been images containing parts, such as official documents or simply identifiable people, whose use in some context may be restricted by laws other than copyright. In this particular case, the image of the Starship Enterprise, as seen in the Star Trek films, TV series and related works, is almost certainly protected by both copyright and trademark law. On the other hand, it is also almost certain that the hand-drawn rendition in [[Image:Anti-Star Trek Cabal logo.png]] counts as fair use; the amount used is so low that one might almost claim the copied elements to be below the threshold of originality, there is no attempt to replace the original and certainly no effect on its market value, and in any case the use counts as parody and critical commentary on the original. Of course, Wikipedia, unlike Uncyclopedia, is not itself a parody site, nor would our strict fair use policy allow us to use that defense even if it was legally available to us. Nor will our policy permit us to use an unfree image on a user page, even if the use was legally fair. So the question remains, is it enough that the likeness of the Enterprise is fairly used in a freely licensed image? Or do we demand that every unfree part and aspect of an image on its own meet our fair use policy? Either choice seems to lead to paradoxes somewhere. Perhaps there is a middle road; but if so, it has yet to be defined. -- Ilmari Karonen