On 6/21/06, Fastfission fastfission@gmail.com wrote:
It is a very interesting case and I find it very encouraging. The most relevant aspects in respects to Wikipedia seem to me (non-lawyer that I am) to be:
- That moving a work into a very different context seems to be
considered transformative (i.e. from "expressive use of images on concert posters" into a "biographical work"). Does moving an image into an "encyclopedic work" make it "transformatively different"? Under the court's argumentation here, almost certainly (accompanying the images with textual material and creating something substantially different as a whole than the original).
This part doesn't seem at all new. "Transformative use" has long been considered to include the context of the work, and not just whether or not the work itself was altered. Use of an artistic work for the purposes of commentary, such as in an encyclopedia, would generally be considered highly transformative. Of course, note the qualification "of an artistic work". Taking a diagram from an educational textbook and using it in an encyclopedia article to accomplish the same basic purpose would be much less transformative.
Pending discussion, this would seem to me to point towards two directions in policy: make more firm the "reduced size" requirement, and liberalizing some aspects on how images are used in articles (I would still rule against galleries and using them in lists for the most part, but their use in relevant articles accompanying relevant text would seem pretty assured to be transformative).
It all depends what the original purpose of the image is. To make a blanket statement that using an image in an encyclopedia with relevant accompanying text is transformative is incorrect. The original use may very well have been in an encyclopedia with relevant accompanying text.
This may sound obvious, but it's a mistake I think a lot of people might make if the policy isn't clear about it.
FWIW, I still think Wikipedia should limit fair use to situations where there is no other choice, i.e. commentary. Even if it were possible to guarantee that such a use would be fair use to all potential reusers, that still doesn't help anyone outside the USA.
Anthony