Anthony wrote:
On 12/21/06, Guy Chapman aka JzG
<guy.chapman(a)spamcop.net> wrote:
I am honestly
confused here. What about, say, a painting of an aircraft? Is that
unfree by virtue of the manufacturer's rights, or the airline's logo?
A painting which incorporated a copyrighted logo would be copyrighted
as a derivative work. If the use was so insignificant as to be fair
use/fair dealing in just about any jurisdiction, I'd still call it
free though.
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
