[Foundation-l] Fair Use (again)

Robert Scott Horning robert_horning at netzero.net
Wed Jan 31 20:20:14 UTC 2007

Ray Saintonge wrote:

>Robert Scott Horning wrote:
>>I should note that I got into this whole mess because I was involved 
>>with a group that was trying to write a Wikibook about M.C. Escher, and 
>>I tried to point out that they couldn't reproduce the Escher artwork 
>>unless they somehow were able to obtain a license that could be used 
>>under the GFDL.  The response was that the images were being used on 
>>Wikipedia, so why not Wikibooks?  The Escher reproductions are claiming 
>>fair use, but I think it has gone way too far on Wikipedia, as I believe 
>>these to be merely a copyright violation.
>I would observe that there is one significant difference between the two 
>situations.  It is one thing to use a couple of Escher's art works in 
>Wikipedia to illustrate a biographical article about him; in my mind 
>that could reasonably be viewed as fair use.  The wholesale reproduction 
>of his works in Wikibooks would probably not be.  The difference is in 
>the application in the substantiality rule of fair use law.
>Of course, it doesn't help to know that some of Escher's works MAY be in 
>the public domain, but it's not up to us to research and make that case 
>on behalf of the uploader.
I am curious if anybody who is a regular participant on this mailing 
list has ever come across an equivalent peer to Wikipedia (aka 
Britannica or a major website like cnn.com) that would use modern art 
works (I'm defining modern as created by anybody who has died since 
1924) and publish reproductions of them using fair-use as the only 
justification for their inclusion?

I have asked this question repeatedly, and the deafing silence on the 
response is leading me to strongly think that there is no major 
publisher who would want to touch these kind of images in the first 
place without formally contacting the copyright owner in advance and 
obtaining permission to use these sorts of images.  I can't imagine even 
a book about modern art that is being used as a textbook (by any 
publisher selling to a college market) that would go into critical depth 
about a few iconic works of modern art that would be using fair use 
rationale for reproducing that artwork.

Having been published by Prentice-Hall for a Spanish-language textbook 
suppliment where I was a co-author, I vaguely remember this issue coming 
up when I was working with my main editor.  Fortunately, I was given 
access to an image repository that was owned by the textbook publisher, 
and had so much content that trying to find something that might have 
pushed the envelope was more a waste of time for me.  

I do know that copyright paranoia is hardly the best way to describe the 
attitude they had regarding the content we were putting together.  It 
was more like copyright insanity where they were questioning nearly 
every word that was written, and in my case every word that was used in 
the software code (it was a CD-ROM suppliment).  The rationale that is 
being used here by some Wikipedia users wouldn't have been tolerated for 
5 minues if they had tried to get away with some of the more 
questionable images and been working for this particular publisher.

Robert Scott Horning

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