Graham v. Dorling Kindersley Limited (decided May 9, 2006, U.S. Court of Appeals Second Circuit), the ruling is worth reading in its entirety: http://www.lessig.org/blog/archives/05-2514-cv_opn.pdf
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:
1. 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).
2. The Court takes the Kelly v. Arriba Soft Corp. and uses it to say that reduced size reproductions of posters (or photos, presumably) counts as using "less" of a work. That's a great thing to have ruled somewhere, because otherwise the Kelly v. Arriba Soft left open a lot of questions in that respect (i.e. since it was only for a search engine and only dealt with very small thumbnails). The court's ruling basically justifies our current policy in regards to size, that it should be the smallest size possible in order to permit the transformative purpose (in our case, to illustrate the article appropriately).
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). Of course this is not the end of the show (one court ruling does not determine everything, but it does point to some relevant guidelines), but it does give more confidence in certain assertions in respect to policy.
Other intepretations, thoughts, etc. on how/whether to use this to guide any of our policies would be greatly appreciated.
FF
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
Anthony DiPierro wrote:
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.
Yes, transformative use has long been a feature of fair use in the US. However, it's not a feature of fair use/dealing under English common law or the Berne Convention. Unless there is some amount of harmonisation, US law will remain largely irrelevant for Wikipedia. As I've repeatedly argued, Wikipedia should be freely redistributable throughout the world, not just in the US.
-- Tim Starling
On 6/22/06, Tim Starling t.starling@physics.unimelb.edu.au wrote:
Anthony DiPierro wrote:
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.
Yes, transformative use has long been a feature of fair use in the US. However, it's not a feature of fair use/dealing under English common law or the Berne Convention. Unless there is some amount of harmonisation, US law will remain largely irrelevant for Wikipedia. As I've repeatedly argued, Wikipedia should be freely redistributable throughout the world, not just in the US.
-- Tim Starling
It'd certainly be nice. To some extent it's unreasonable, of course (we don't want to be freely distributable in China, for example). But to the extent that content is only legally distributable in the USA, it probably shouldn't be in Wikipedia.
I don't forsee there being any consensus on this issue for a long time, if ever.
Anthony
Anthony DiPierro wrote:
On 6/22/06, Tim Starling t.starling@physics.unimelb.edu.au wrote:
[...] As I've repeatedly argued, Wikipedia should be freely redistributable throughout the world, not just in the US.
It'd certainly be nice. To some extent it's unreasonable, of course (we don't want to be freely distributable in China, for example).
You what? I thought that was the whole problem, that we AREN'T "freely distributable in China" because of blocking...or do you mean that we don't want people we don't like repackaging us?
Don't let your pique with the administration get in the way of providing information to the people..."freely distributable" means no exceptions as to "who", it's the "how" and "how much" we're worried about. If the Chinese government had set up a *true* mirror of Wikipedia inside their area of control, there would be no basis for complaint, it's that they are imposing restrictions on the content which is the problem.
HTH HAND
On 6/23/06, Phil Boswell phil.boswell@gmail.com wrote:
Anthony DiPierro wrote:
On 6/22/06, Tim Starling t.starling@physics.unimelb.edu.au wrote:
[...] As I've repeatedly argued, Wikipedia should be freely redistributable throughout the world, not just in the US.
It'd certainly be nice. To some extent it's unreasonable, of course (we don't want to be freely distributable in China, for example).
You what? I thought that was the whole problem, that we AREN'T "freely distributable in China" because of blocking...or do you mean that we don't want people we don't like repackaging us?
What I meant was that we don't want to alter our content so that it is freely distributable in China.
China altering its laws so that Wikipedia is freely distributable there would be a good thing, of course :).
Anthony
On 6/22/06, Tim Starling t.starling@physics.unimelb.edu.au wrote:
Yes, transformative use has long been a feature of fair use in the US. However, it's not a feature of fair use/dealing under English common law or the Berne Convention. Unless there is some amount of harmonisation, US law will remain largely irrelevant for Wikipedia. As I've repeatedly argued, Wikipedia should be freely redistributable throughout the world, not just in the US.
Right, guys, but that's another discussion entirely, and one which we've had before and one which hasn't changed much since the last time we talked about it.
I think people are missing the bigger points about this ruling that I and Jamesday are trying to point out -- there are some major implications for how we use fair use in this ruling, it is much more specific to Wikipedia's situation than most of these fair use rulings have been.
FF
In 6/22/06, Fastfission fastfission@gmail.com wrote:
On 6/22/06, Tim Starling t.starling@physics.unimelb.edu.au wrote:
Yes, transformative use has long been a feature of fair use in the US. However, it's not a feature of fair use/dealing under English common law or the Berne Convention. Unless there is some amount of harmonisation, US law will remain largely irrelevant for Wikipedia. As I've repeatedly argued, Wikipedia should be freely redistributable throughout the world, not just in the US.
Right, guys, but that's another discussion entirely, and one which we've had before and one which hasn't changed much since the last time we talked about it.
Yes, and during that other discussion I believe most people agreed that just because something is *legal* to use in Wikipedia that doesn't mean it is appropriate to use.
Noncommercial-only and by-permission images are also both legal to use in Wikipedia. But they are still not allowed.
The question isn't whether or not the image is legal, the question is whether or not the image is free.
Anthony
On 6/21/06, Anthony DiPierro wikilegal@inbox.org wrote:
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.
Agreed. But in cases where the change of context and purpose is drastic, I think we can be more confident. I'm thinking here of things like magazine covers, screenshots, fine art, posters, etc., which were, by definition, never originally in an encyclopedic context, where we always had a lot of them but the justification always felt a little shakey (which occasionally gave way to purging).
FF
On 6/22/06, Fastfission fastfission@gmail.com wrote:
On 6/21/06, Anthony DiPierro wikilegal@inbox.org wrote:
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.
Agreed. But in cases where the change of context and purpose is drastic, I think we can be more confident. I'm thinking here of things like magazine covers, screenshots, fine art, posters, etc., which were, by definition, never originally in an encyclopedic context, where we always had a lot of them but the justification always felt a little shakey (which occasionally gave way to purging).
Context is definitely different, but purpose is less assuredly different. Taking magazine covers, for example, if the purpose of the magazine cover is to depict a certain person, and the purpose of putting the magazine cover in the encyclopedia is to depict that person, then things aren't very transformative, are they?
I only think Wikipedia should use magazine covers when talking about the magazine cover itself. That is not to say that it is illegal to use a magazine cover in other ways, it is simply to say that fair use is an alternative which should only be used in very limited circumstances. Tim Starling gave one reason - countries other than the US don't have fair use laws. Another reason is that fair use is grey area. It's been said that only nine people in the country really know what it means, referring to the nine members of the Supreme Court.
Anthony
It's interesting for many reasons, not least because it is explicit in rejecting many of the misunderstandings people have used to object to various fair use cases. Hopefully the explicit statements will resolve those misunderstandings. Nothing actually new in the decision but it makes some things really obvious (I hope! :))
First the case itself: a history of the Grateful Dead group, used many pictures of posters and tickets where a copyright holder had refused permission under fair use and won in a relatively inexpensive summary judgment.
"Illustrated Trip is a biographical work, and the original images are not, and therefore accorded a strong presumption in favor of DK's use. In particular, the district court concluded that DK's use of images placed in chronological order on a timeline is transformatively different from the mere expressive use of images on concert posters or tickets. Because the works are displayed to commemorate historic events, arranged in a creative fashion, and displayed in significantly reduced form, the district court held that the first fair use factor weighs heavily in favor of DK."
This aspect applies to almost all uses in articles in the work called Wikipedia by its authors. Whether it's a baseball card, poster, album cover, book cover, mural, painting or postcard, it's not an encyclopedia article and the use is in one is transformative and strongly favors fair use.
Exceptions: using artwork to look pretty. But the same artwork to illustrate a style of dress or suit of armor is being used for factual value, not beauty, and is fine because that is transformative. Of course, using a scientific image to look pretty would be a transformative use from factual to artistic and hence transformative...
"Appellant asserts that each reproduced image should have been accompanied by comment or criticism related to the artistic nature of the image. We disagree with Appellant's limited interpretation of transformative use and we agree with the district court that DK's actual use of each image is transformatively different from the original expressive purpose." "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."
You don't need to have specific justification for each image use - readers know from the context that you're illustrating your point (but we should still say so in the fair use explanation, because it's prudent to do so and remove doubt about our intentions).
On to image size but not that at this point the decision has already said that the use was fine and it's merely strengthening an already strong position:
"DK was not required to discuss the artistic merits of the images to satisfy this first factor of fair use analysis. This conclusion is strengthened by the manner in which DK displayed the images. First, DK significantly reduced the size of the reproductions. ... While the small size is sufficient to permit readers to recognize the historical significance of the posters, it is inadequate to offer more than a glimpse of their expressive value. In short, DK used the minimal image size necessary to accomplish its transformative purpose."
"(noting that a work that comments about "pop culture" is not removed from the scope of Section 107 [fair use]simply because it is not erudite)."
Sadly for those who dislike articles about popular culture, merely being about popular culture doesn't remove fair use. :) You get to use Beanie Baby pictures as well as the most admired modern art under fair use.
"nearly all of the illustrative uses listed in the preamble paragraph of § 107 . . . are generally conducted for profit ... Here, Illustrated Trip does not exploit the use of BGA's images as such for commercial gain. Significantly, DK has not used any of BGA's images in its commercial advertising or in any other way to promote the sale of the book. Illustrated Trip merely uses pictures and text to describe the life of the Grateful Dead. By design, the use of BGA's images is incidental to the commercial biographical value of the book."
For those who wonder about fair use and commercial reusers of content placed in Wikipedia by its authors. Those commercial users also get fair use and that was part of the original intent of fair use law.
"Accordingly, we conclude that the first fair use factor weighs in favor of DK because DK's use of BGA's images is transformatively different from the images' original expressive purpose and DK does not seek to exploit the images' expressive value for commercial gain."
This highlights the important parts: transformative and not the _expressive_ value but the historic value. Size is a factor but not critical.
"we hold that even though BGA's images are creative works, which are a core concern of copyright protection, the second factor has limited weight in our analysis because the purpose of DK's use was to emphasize the images' historical rather than creative value."
Not in favor of fair use but the factual use not the artistic use largely eliminates the concern about protecting art.
"We conclude that such use by DK is tailored to further its transformative purpose because DK's reduced size reproductions of BGA' s images in their entirety displayed the minimal image size and quality necessary to ensure the reader's recognition of the images as historical artifacts of Grateful Dead concert events. Accordingly, the third fair use factor does not weigh against fair use."
Reduced resolution is helpful but do remember that you can use whatever size is required. You do need to use sufficient resolution of portion so the viewer can clearly see what you're trying to show! We're already using suitable sizes, I think, so no change necessary, except reassurance for those who wondered whether small images were a problem if it was showing a small version of it all.
"the parties agree that DK's use of the images did not impact BGA's primary market for the sale of the poster images."
This should also be the case for almost all uses in Wikipedia, since Wikipedia use isn't the same as the originals - the only cautions here would be news agency images in current breaking news situations and the same ones in historical articles would be fine, because that's history not news.
On to a bit that often causes confusion... loss of revenue for the copyright holder. Best summarized with the simple sentences "[C]opyright owners may not preempt exploitation of transformative markets. ... Since DK's use of BGA's images falls within a transformative market, BGA does not suffer market harm due to the loss of license fees." (because it's not entitled to them anyway). Since use in Wikipedia will always be transformative, this is very unlikely to be a negative factor for a use in Wikipedia.
"Appellant argues that DK interfered with the market for licensing its images for use in books. Appellant contends that there is an established market for licensing its images and it suffered both the loss of royalty revenue directly from DK and the opportunity to obtain royalties from others. ...
We have noted, however, that 'were a court automatically to conclude in every case that potential licensing revenues were impermissibly impaired simply because the secondary user did not pay a fee for the right to engage in the use, the fourth fair use factor would always favor the copyright holder.'
Moreover, Appellant asserts that it established a market for licensing its images, and in this case expressed a willingness to license images to DK. Neither of these arguments shows impairment to a traditional, as opposed to a transformative market. In a case such as this, a copyright holder cannot prevent others from entering fair use markets merely "by developing or licensing a market for parody, news reporting, educational or other transformative uses of its own creative work."
"[C]opyright owners may not preempt exploitation of transformative markets . . . ."
"Moreover, a publisher's willingness to pay license fees for reproduction of images does not establish that the publisher may not, in the alternative, make fair use of those images. Since DK's use of BGA's images falls within a transformative market, BGA does not suffer market harm due to the loss of license fees."
And the conclusion:
"we conclude, as the district court did, that the fair use factors weigh in favor of DK's use. For the first factor, we conclude that DK' s use of concert posters and tickets as historical artifacts of Grateful Dead performances is transformatively different from the original expressive purpose of BGA's copyrighted images. While the second factor favors BGA because of the creative nature of the images, its weight is limited because DK did not exploit the expressive value of the images. Although BGA's images are copied in their entirety, the third factor does not weigh against fair use because the reduced size of the images is consistent with the author's transformative purpose. Finally, we conclude that DK's use does not harm the market for BGA's sale of its copyrighted artwork, and we do not find market harm based on BGA's hypothetical loss of license revenue from DK's transformative market."
And that's the reasoning that's going to apply to uses in Wikipedia as well, for pretty much the same fundamental reasons: transformative use and not primarily of value just because of the images, which are accompanied by the articles that provide the main part of the content.
But once this legal aspect is taken care of, do remember that it's nice to seek to replace fair use images with more freely licensed images as those become available. Recruit friends, take pictures on vacations and around your town and encourage others to do so, so we can gradually replace all those that can be replaced. It'll take a while to get everyone on the planet working with us so we have done this for everything but it'll happen eventually... meanwhile, remember we're a wiki and successive improvement over time is one of the fundamental principles of wiki use. We don't insist on perfect first versions of an article and nor should we do so for images. But we should encourage perfection in both over time.
James Day
On 6/21/06, James user_jamesday@myrealbox.com wrote:
This aspect applies to almost all uses in articles in the work called Wikipedia by its authors. Whether it's a baseball card, poster, album cover, book cover, mural, painting or postcard, it's not an encyclopedia article and the use is in one is transformative and strongly favors fair use.
Exactly. Of course I think taking it *too* far would be dangerous but it does mean we can be more confident in instances where we are clearly being transformative by putting something into an encyclopedic context.
The one problem I have with this is that I don't know where the line between "moving contexts is transformative" starts and where one gets away from things like the Seinfeld case, where the context is definitely different (TV show to trivia book) but it was found to be infringement because it cut into the copyright holder's ability to make a trivia book in the future. Obvious one case does not simply trump another case, but in any event this is a nice assurement that "encyclopedic use" has plausibility as transformative.
You don't need to have specific justification for each image use - readers know from the context that you're illustrating your point (but we should still say so in the fair use explanation, because it's prudent to do so and remove doubt about our intentions).
Additionally having a fair use justification is also meant to scare off cheap trouble by making our case look strong from the beginning and demonstrating an awareness of the legal issues involved.
Reduced resolution is helpful but do remember that you can use whatever size is required. You do need to use sufficient resolution of portion so the viewer can clearly see what you're trying to show! We're already using suitable sizes, I think, so no change necessary, except reassurance for those who wondered whether small images were a problem if it was showing a small version of it all.
We've had a policy for some time that fair use images should be as small as necessary to do the work they need to do for the article, which is pretty much what this decision seems to indicate is a good idea. It's nice to see it in writing since until now there's been nothing to point to specifically in this respect (that image size had some relation to proportion of the work used) except for the _Kelly_ ruling, which is so specific to automatic search engines as to be plausible irrelevant.
As for the issue on fees: the fourth factor is always an "after the ruling" factor anyway (if the first three point towards it being "fair", then it doesn't matter). I have always thought it an important consideration despite the law since edging into someone else's profit is a good way to call unwanted attention to yourself.
And that's the reasoning that's going to apply to uses in Wikipedia as well, for pretty much the same fundamental reasons: transformative use and not primarily of value just because of the images, which are accompanied by the articles that provide the main part of the content.
Well, in this case. Which we shouldn't over-exaggerate the importance of -- there are plenty of other cases which have contradictory rulings to this very liberal one. But in any case it could definitely be something to use towards shoring up wording and specifics of certain policies. And hopefully ward off paranoia.
But once this legal aspect is taken care of, do remember that it's nice to seek to replace fair use images with more freely licensed images as those become available. Recruit friends, take pictures on vacations and around your town and encourage others to do so, so we can gradually replace all those that can be replaced. It'll take a while to get everyone on the planet working with us so we have done this for everything but it'll happen eventually... meanwhile, remember we're a wiki and successive improvement over time is one of the fundamental principles of wiki use. We don't insist on perfect first versions of an article and nor should we do so for images. But we should encourage perfection in both over time.
Agreed of course. And "fair use" should be minimized where possible on the account of re-users in other countries of course. But in terms of Wikipedia's current fair use situation, this is a very heartening ruling.
FF
Fastfission wrote:
On 6/21/06, James user_jamesday@myrealbox.com wrote:
This aspect applies to almost all uses in articles in the work called Wikipedia by its authors. Whether it's a baseball card, poster, album cover, book cover, mural, painting or postcard, it's not an encyclopedia article and the use is in one is transformative and strongly favors fair use.
The one problem I have with this is that I don't know where the line between "moving contexts is transformative" starts and where one gets away from things like the Seinfeld case, where the context is definitely different (TV show to trivia book) but it was found to be infringement because it cut into the copyright holder's ability to make a trivia book in the future. Obvious one case does not simply trump another case, but in any event this is a nice assurement that "encyclopedic use" has plausibility as transformative.
I haven't read the Seinfeld case, but I would expect that the line here would be that a trivia book devoted exclusively to a single TV seriew could be viewed as a derivative work, but this would not be the case if a handful of questions about the program were part of a broader context.
I don't expect that there will ever be a simple demarcation line for what is safe to use. In any event, a safe harbor is always available in cases of uncertainty.
You don't need to have specific justification for each image use - readers know from the context that you're illustrating your point (but we should still say so in the fair use explanation, because it's prudent to do so and remove doubt about our intentions).
Additionally having a fair use justification is also meant to scare off cheap trouble by making our case look strong from the beginning and demonstrating an awareness of the legal issues involved.
Demonstrating awareness is key if any of these are to go any further.
Ec
James wrote:
It's interesting for many reasons, not least because it is explicit in rejecting many of the misunderstandings people have used to object to various fair use cases. Hopefully the explicit statements will resolve those misunderstandings. Nothing actually new in the decision but it makes some things really obvious (I hope! :))
Dream on! For me it does add a little more clarity to findings of fair use, but for people who demand absolute certainty on the matter no amount of fact will ever be convincing. Ultimately each and every claim of fair use must be judged on its own merits, and that makes certainty impossible.
First the case itself: a history of the Grateful Dead group, used many pictures of posters and tickets where a copyright holder had refused permission under fair use and won in a relatively inexpensive summary judgment.
Seven pictures, not "many".
"(noting that a work that comments about "pop culture" is not removed from the scope of Section 107 [fair use]simply because it is not erudite)."
Sadly for those who dislike articles about popular culture, merely being about popular culture doesn't remove fair use. :) You get to use Beanie Baby pictures as well as the most admired modern art under fair use.
It's an interesting comment in the way it broadens the view of "cultured".
"nearly all of the illustrative uses listed in the preamble paragraph of § 107 . . . are generally conducted for profit ... Here, Illustrated Trip does not exploit the use of BGA's images as such for commercial gain. Significantly, DK has not used any of BGA's images in its commercial advertising or in any other way to promote the sale of the book. Illustrated Trip merely uses pictures and text to describe the life of the Grateful Dead. By design, the use of BGA's images is incidental to the commercial biographical value of the book."
For those who wonder about fair use and commercial reusers of content placed in Wikipedia by its authors. Those commercial users also get fair use and that was part of the original intent of fair use law.
While it is conceivable that what the downstream user does with the Wikipedia's fair-use material may no longer be fair use, it would take considerable effort on his part to do that. Changing the transformative nature of the Wikipedia material would likely require the stripping out of the Wikipedia context. Taking a photo reduced image and blowing it back up to poster size will not restore the lost resolution in that image. The nature of the copyrighted work is constant without regard to who is using it. As long as the transformative nature of our fair use is maintained the effect on the copyright owner's markets is unchanged. It is also difficult to imagine how the downstream user could or would use Wikipedia's fair use material for a purpose other than one of those listed.
I would be interested to see an example of a use of fair-use material from Wikipedia become non-fair-use when applied by a downstream user without the example being impossibly contrived.
"We conclude that such use by DK is tailored to further its transformative purpose because DK's reduced size reproductions of BGA' s images in their entirety displayed the minimal image size and quality necessary to ensure the reader's recognition of the images as historical artifacts of Grateful Dead concert events. Accordingly, the third fair use factor does not weigh against fair use."
Reduced resolution is helpful but do remember that you can use whatever size is required. You do need to use sufficient resolution of portion so the viewer can clearly see what you're trying to show! We're already using suitable sizes, I think, so no change necessary, except reassurance for those who wondered whether small images were a problem if it was showing a small version of it all.
One argument that does not appear to have been raised about resolution is that if the software must choose one representative pixel in a block of 25 for a 4% sample that process is irreversible.
"the parties agree that DK's use of the images did not impact BGA's primary market for the sale of the poster images."
This should also be the case for almost all uses in Wikipedia, since Wikipedia use isn't the same as the originals
The footnote on page 20 of the decision is also interesting: "To the contrary, had the book been commercially successful – it was not – it might have garnered interest in the original images in full size because the reduced images have such minimal expressive impact. An afficionado might seek more than a “peek.”" Our uses will often enhance the marketability of the illustrated material. Maybe they should be paying us to include it. ;-)
On to a bit that often causes confusion... loss of revenue for the copyright holder. Best summarized with the simple sentences "[C]opyright owners may not preempt exploitation of transformative markets. ... Since DK's use of BGA's images falls within a transformative market, BGA does not suffer market harm due to the loss of license fees." (because it's not entitled to them anyway). Since use in Wikipedia will always be transformative, this is very unlikely to be a negative factor for a use in Wikipedia.
Entitlement to license fees may very well be a product of negotaitions, even if that legal entitlement did not previously exist. The point is that a negotiated agreement cannot be used to reverse engineer a preexisting condition. Such a rationale is no more valid than a proof for the existence of God.
"Appellant argues that DK interfered with the market for licensing its images for use in books. Appellant contends that there is an established market for licensing its images and it suffered both the loss of royalty revenue directly from DK and the opportunity to obtain royalties from others. ...
We have noted, however, that 'were a court automatically to conclude in every case that potential licensing revenues were impermissibly impaired simply because the secondary user did not pay a fee for the right to engage in the use, the fourth fair use factor would always favor the copyright holder.'
In Canadian law where the four factors are not a part of the fair dealing provisions in the Copyright Act the Supreme Court has looked favorably upon them. Moreover, in dealing with the fourth factor it has determined that the burden of proving that a market hurt must lie with the owner of the copyright since the user would not normally have access to the owner's business records. There is more to market interference than simply making an unfounded claim.
And that's the reasoning that's going to apply to uses in Wikipedia as well, for pretty much the same fundamental reasons: transformative use and not primarily of value just because of the images, which are accompanied by the articles that provide the main part of the content.
There does remain the problem of other countries' laws. For the most part there appears to be a lot of wind and little fact for interpreting the fair dealing provisions of these places. It would be interesting to read court precedents on these matters rather than the simple parotting of skeletal statutory provisions.
But once this legal aspect is taken care of, do remember that it's nice to seek to replace fair use images with more freely licensed images as those become available. Recruit friends, take pictures on vacations and around your town and encourage others to do so, so we can gradually replace all those that can be replaced. It'll take a while to get everyone on the planet working with us so we have done this for everything but it'll happen eventually... meanwhile, remember we're a wiki and successive improvement over time is one of the fundamental principles of wiki use. We don't insist on perfect first versions of an article and nor should we do so for images. But we should encourage perfection in both over time.
Absolutely, but there will always remain topics that can only be illustrated by fair use image.
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