The following is a discussion of the law, not of Wikipedia policy. I agree fully with Matthew Brown that these types of images shouldn't be in Wikipedia. However, I believe that many of these types of images would be perfectly legal to use in Wikipedia.
On 11/15/06, Gregory Maxwell gmaxwell@gmail.com wrote:
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. § 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.
FWIW, I think you've got the law completely wrong here. Fair use is used constantly in US media in ways that aren't "actually discussing a copyrighted work", and it usually doesn't lead to any lawsuits at all. But here's one case for you to look at, and a specific quote from that case, which explicitly contradicts what you're saying:
Bill Graham Archives v. Dorling Kindersley Limited, Dorling Kindersley Publishing, and RR Donnelley & Sons Company
"In some instances, it is readily apparent that DK's image display enhances the reader's understanding of the biographical text. In other instances, the link between image and text is less obvious; nevertheless, the images still serve as historical artifacts graphically representing the fact of significant Grateful Dead concert events selected by the Illustrated Trip's author for inclusion in the book's timeline. We conclude that both types of uses fulfill DK's transformative purpose of enhancing the biographical information in Illustrated Trip, a purpose separate and distinct from the original artistic and promotional purpose for which the images were created. See Elvis Presley Enters., Inc. v. Passport Video, 349 F.3d 622, 628-29 (9th Cir. 2003) (finding the use of television clips to be transformative where "the clips play for only a few seconds and are used for reference purposes while a narrator talks over them or interviewees explain their context in Elvis' career," but not to be transformative where the clips "play without much interruption, [and t]he purpose of showing these clips likely goes beyond merely making a reference for a biography, but instead serves the same intrinsic entertainment value that is protected by Plaintiffs' copyrights"); see also Hofheinz v. A & E Television Networks, Inc., 146 F. Supp. 2d 442, 446–47 (S.D.N.Y. 2001) (ruling that unauthorized inclusion of copyrighted film clips in actor's biographical film was protected fair use because the biography "was not shown to recreate the creative expression reposing in plaintiff's [copyrighted] film, [but] for the transformative purpose of enabling the viewer to understand the actor's modest beginnings in the film business"). In sum, because DK's use of the disputed images is transformative both when accompanied by referencing commentary and when standing alone, we agree with the district court that DK was not required to discuss the artistic merits of the images to satisfy this first factor of fair use analysis."
Repeating that last sentence, "DK was not required to discuss the artistic merits of the images to satisfy this first factor of fair use analysis." I'll leave it up to others to provide more cites.