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

Ray Saintonge saintonge at telus.net
Sun Feb 11 21:35:12 UTC 2007

David Monniaux wrote:

>Kat Walsh said:
>" 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.
I have no problem encouraging surreptitious photography in museums. Of 
course, the photographer does it at his own risk to his relation to 
museum authorities.  Whether the publication of such pictures infringes 
on copyrights depends on the specific objects photographed.

>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.
The answer that we should delete these pictures is not unanimous.  At 
the same time I would reject the idea that the artist is somehow 
blameworthy for refusing these permissions.  They owe us nothing.  Those 
who receive benefits from existing copyright laws have a head start in 
convincing the artists that that system is the best; reversing that 
trend will require a full generation of re-education.

>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
>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.
"Significant" is just as subjective a term as "notable".  At least if 
you use the latter you can merge the two problems into one.  I have no 
problem with including album covers.  Have there even been any broad 
general complaints from the industry about including these?

>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.
I agree that the artist has these potential benefits, but the original 
painting is unique, and the number of visitors to the museum or the 
number of possible resales is limited.  The advertising value is, 
nevertheless, incidental.  Most of our audience has no reasonable hope 
of ever visiting that museum.  The question of who may give permission 
is relatively easy as long as the artist is still alive.  For the next 
70 years (more or less, depending on the jurisdiction) there is a huge 
legal limbo about who may give permission.  If there are 10 
grandchildren it may often be that any one of them may give the 
permission.  If one grandchild has taken upon himself the right to 
publish his grandfather's art for his own sole benefit there is nothing 
to pevent a non-benefitting cousin from granting a free licence.

>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.
The "non-significant" ones stand to gain even more from our publicity.  
Without our efforts no-one would even think of going to see their art.  
At least someone like Picaso is so hugely famous that he will already 
draw attention without us.  The complaint against the big record 
companies is already being voiced by musicians like Gilberto Gil who 
would like to have more control over their music and its distribution.  
Between the artist and his audience there is a large number of others, 
including producers and retailers, that stands to lose big from the 
effects of a technology that renders them redundant.  We only owe to 
them as long as they do something useful. 

>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.)
Fair enough.  The marketplace can be brutal.  The significance of one 
person's art is left to the judgement of others.  The situation there 
seems like an arts counterpart to No Original Research.  Our most 
important benefit from that policy is protection from the illusions of 
grandeur exhibited by some original thinkers.  A simple answer here 
might be, "If he merits an article he merits having it illustrated."

>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".
In a changing environment we need to avoid clarifications that would be 
too strict or rigid.  In what Kat said about fair use there are some of 
us who would see that stand as minimal and others who would see it as 
maximal.  At this point it may be better to preserve the dynamic by 
avoiding "clarifications".  Fair use is only one aspect of the 
situation, one which many contributors invoke too conveniently.  I'm 
inclined to believe tha Sonny Bono's copyright extension to 95 years in 
the United States may have brough the copyright house of cards to a 
tipping point.  The conjunction between that and a technology that 
permits a kind of production and distribution that was previously 
impossible, have brought forth a range of profound questions about 
copyright that were previously meaningless.

In all this EU law creates a lot of anomalous problems.  The EU 
obsession for homogenization appears to make it very difficult for any 
member to seek its own imaginative solutions to the problems.  The 
industries that have for so long had the ear of the centralizing 
bureaucrats seem to frown on any kind of change that would put them at a 
disadvantage.  Is any EU member willing to defy the will of the 
bureacracy with the will of its own democratically elected government.


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