Jay R. Ashworth wrote:
I might, in fact, be wrong. I've tried to avoid speaking authoritatively *about the law* as opposed to what I think is reasonable and just.
Fair enough. Of course, that may also be part of the reason why there's been so much confusion over this: in copyright law, and especially with regard to derivative works, there's a broad category of things that are _in principle_ illegal, except that a) no-one will probably bother to sue you, making it effectively OK until and unless they do, and b) if they do, the judge is likely to find no actual harm and let you off with a slap on the wrist and an admonition not to do it again.
Many of these technically illegal uses (a prime example being the use and distribution of "abandoned" works) fall squarely in the "reasonable and just" camp. Of course, there are also things that are so reasonable and just that they actually qualify as legal fair use -- but you can't tell for sure where the line between the two actually lies until the dispute has gone to court, a judge has ruled on it and all appeals have been exhausted. And in many instances this is unlikely to happen, precisely because, even if a judge ruled in favor of the plaintiff, they couldn't really expect to get enough out of it to justify the cost of a lawsuit.
I've actually read quite a lot on the subject too, and most of the sources I've seen tend to say that the first question you should ask in practice isn't "is it legal?" but "will I probably get away with it?". However, the Commons, like Wikimedia in general, doesn't operate on that principle; for them, the question is closer to "is it 99.9999% certain that not only I, but also anyone else reusing this, will get away with it?" Which is about as close to "is it legal?" as you can get.
To use my example, above, my taking a photograph of an artist posing next to his painting does *not*, to me, seem to meet the description there, quoted from the statute, of a derivative work, as it's not *based* on the original painting: he could have been standing next to *anything*.
You know, you could turn that around and claim equally well that the photograph isn't based on the likeness of the artist, since *anyone* could've been standing there next to the painting.
Your claim seems to be that the inclusion of the painting in the photo is only incidental. Depending on the actual circumstances, this might in fact be the case, if the main subject of the photo actually was the artist and not the painting. Depending on other factors, such as whether the painting was shown in its entirety or not, and whether your photo might compete with the original painting or other works (such as posters) based on it, you might be able to claim the use as fair -- or you might not.
Look at it this way: If I take the latest MTV hit single, play it in the background while recording myself repeating "Yo!" over and over again, and release the recording as my own song, I *will* get sued and probably lose no matter how hard I might claim that the song is merely incidental background to my creative rapping.
*Specifically* though, what troubles me is the approach to the characterization on Commons:Licensing. It seems to be making legal assertions that may not actually be valid, when perhaps what it ought to be saying is that the issue is not entirely clear, and Commons chooses to err on the side of (over-)caution.
If you think this is the case, feel free to fix it (or suggest improvements). Just try to be careful not to replace any existing legal assertions with other equally dubious ones, express or implied.