On 05/03/2008, David Gerard dgerard@gmail.com wrote:
On 05/03/2008, geni geniice@gmail.com wrote:
And most of the rest of our album and single articles don't mention the cover at all so criticism and content is kinda tricky. I would tend to argue that even fairly minimalistic stuff such as: http://en.wikipedia.org/wiki/Horses_%28album%29#The_cover Has the potential to make the fair use case a lot stronger.
It only needs strengthening for those demanding shrubberies.
Content actually.
http://en.wikipedia.org/wiki/The_Distance_%28album%29 is a problem. The fair use case is going to be rather weak.
Is there any criticism or comment? No. news reporting? album was released in 1982 I really can't see the courts going for that one. Teaching (including multiple copies for classroom use) looks good but the courts might well take the view that accepting wikipedia as teaching would result in too broad a level of coverage since it would allow any mildly informative work to claim that. Scholarship, or research runs into WP:NOT. So we are not really using any of the standard statute defined situations under which fair use is okey.
So onto case law. Bill Graham Archives, LLC v. Dorling Kindersley Limited is about posters rather than album covers but is the closest case I know of. Looks promising but isn't an exact parallel. Worse still the judges interpreted the "the amount and substantially of the portion used in relation to the copyrighted work as a whole" in controversial manner in deciding that the small number of images taken as part of a large book was a point in favor of fair use. If the courts keep deciding that the number of album covers we have could become a problem.
The good news is that the court stressed the importance of the book being transformative which means that a decent sized article should be fairly safe even if it does not directly mention the cover.
In short the problem is not the cookie cutter fair use rationals (although these should be avoided since a fair part of our EDP is meant to make people think what they are doing) but the cookie cutter album articles which once you strip out all the copywritten material barely make it to substub status.