[WikiEN-l] Getting rid of bad fair use

[Erik Moeller]

On 5/19/06, Bryan Derksen <bryan.derksen at shaw.ca> wrote:

> The one I'd like to hear answered myself is whether the desires of the
> copyright holder have any bearing on whether an image can be fairly used
> - I ran into this issue on
> <http://en.wikipedia.org/wiki/Image_talk:Orly.jpg>, wherein an image
> that (as far as I can tell) meets fair use criteria for the context in
> which it was being used was deleted because the copyright holder
> apparently complained about it.

It's a matter of cost/benefit. Is the inclusion of this picture worth
defending in court because of its encyclopedic value? In the case of
illustrating the "O RLY?" Internet phenomenon, I think it is not. In
fact, one could argue that anything that contributes to
existinguishing all knowledge that such a thing has ever existed is a
valuable service to humanity (j/k).

While I respect Brad's opinion very much, we need to be very careful
that "because I've spoken to Wikimedia's lawyer about it" does not
become equivalent to "end of discussion". The only question is where,
and with whom, such discussion should take place. I think wikien-l or
DRV are good places to start in most cases.

Ultimately, it is the Wikimedia Foundation that has to carry the risk
of losing a lawsuit.  However, we should also not forget that this is
not just a for-profit corporation, but a non-profit organization
funded primarily through small scale donations, so the opinion of the
community should have considerable weight.

An example of a fair use photo which I consider worth defending in
court is the one at:
http://en.wikipedia.org/wiki/Kim_Phuc_Phan_Thi

Erik