On 05/03/2008, David Gerard <dgerard(a)gmail.com> wrote:
On 05/03/2008, geni <geniice(a)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.
--
geni