[Foundation-l] precisions about the recent WMF "fair use" decision

[David Monniaux]

Kat Walsh said:
http://en.wikipedia.org/wiki/Wikipedia:Administrators%27_noticeboard#Important_notice_regarding_fair_use_that_all_administrators_should_see

" There are some works, primarily historically important photographs and
significant modern artworks, that we can not realistically expect to be
released under a free content license, but that are hard to discuss in
an educational context without including the media itself. "


I do agree that there are various kinds of important situations that, in
order to be properly discussed in an educational fashion, need a
photograph (or at least, omitting one reduces significantly the interest
of the article).

To me, these include, among others:
* recent works of art
* military operations and hardware
* spacecraft
(this list is non exhaustive, I'm just taking examples).

In all the cases in the above list, we can include written descriptions
(this is what people used to do before it was easy to reprint pictures).
However, having images is profitable. Also, in all those cases, there is
little hope that we should get "free" photographs, simply because of we
will not obtain an authorization from the artist or because our
photographers will not be allowed to photograph inside the museum, or
inside a war theater, or a spacecraft.

The usual answer (at least on these mailing-list) on such cases is that
we should delete the pictures, and it's the fault of the artist or the
organizations that could have authorized some free pictures if we don't
have pictures in the article about their activities. In a sense, that
makes sense: we're effectively devoting some free space to describe what
they do, so they should be graceful and give us a photograph.

Now, it seems (but I may be mistaken, and this is why I'm asking for
precisions) that we may carve an exemption for "significant modern
artworks".

I suspect that the adjective "significant" was added so as to exclude
all the album covers and other "pop culture" artwork, and that what is
meant is that we should have, say, photographs of Picasso's Guernica and
similar works.

To me, this is troubling. An article discussing a painting on Wikipedia
is, in effect, free advertisement for a number of people:
* the museum owning the painting, because it attracts visitors
* the artist's family, in countries with a _droit de suite_ (this is a
clause in EU law that says that under some circumstances and within a
limited period of time, the artist or its heirs obtain a little share of
the resale price of the works of the artist).
These people can authorize free pictures.

Thus, I'm puzzled: it seems that we're doing a favor to museums and the
heirs of various "modern artists", and supporting the speculation that
declares that certain works are more "significant" than others, without
any support from the people whose work we promote.

As an example, I remember processing some emails on behalf of the
Foundation: some artist wanted us to carry pictures of his work, but at
the same time didn't want to give a free license. In short, he wanted us
to give them free promotion without giving something back. (I'm unsure
whether this artist would be considered "significant", but he apparently
considered himself to be so.)

I would thus be glad if we could have some clarification about the
extent of this exemption for fair use, and why we seem to give 'carte
blanche' for "significant modern art".