[WikiEN-l] Getting rid of bad fair use

[Bryan Derksen]

Alphax (Wikipedia email) wrote:
> What would you say if I told you that I had located the *original*
> high-res version of the "O RLY owl", sans the text, and that it had a
> clear copyright notice? The "O RLY" version is a copvio - so, our "fair
> use" claim was in error.

This argument came up in the image talk page and I don't see how it
works. My understanding of copyright law on this matter:

The photographer created the photo and held copyright to it, and then
someone else came along and created a derivative work out of it. As a
derivative work, the copyright is jointly owned - both the photographer
and the ORLY-writer hold copyright over the resulting image and so the
permission of both is needed for it to be copied (unless such an
addition is too trivial to warrant a copyright in the first place, in
which case the photographer's the sole copyright holder to Orly.jpg. I
don't think this changes anything as far we're concerned, though).

The photographer didn't grant permission for this derivative work to be
published anywhere, so people who print posters or whatever of O RLY are
violating his copyright on it. But there's no indelible taint of
illegality on the image itself; it's only the act of copying it without
permission of both copyright holders that's illegal. It would be
perfectly legal for me to create my own personal O RLY owl for my own
personal use by downloading the original from an authorized distributor
and stamping the words on it myself, I just can't send copies of the
result to anyone else.

Fair use grants exemptions whereby a copyrighted work can be distributed
_without_ permission under certain circumstances, though. And it looks
to me like this Wikipedia article fits those circumstances. The fact
that the image also is being distributed illegally on web fora unrelated
to Wikipedia doesn't seem relevant.

As I've said before I'm not too interested one way or the other in this
specific image or article, but I am interested in making sure that
Wikipedia's fair use policy is clear and accurate. If the Wikimedia
Foundation lawyer has specific reasoning for why this image isn't really
fair use after all I want to hear it so I can correct my own
misunderstanding and hopefully clarify the policy page so others won't
fall for it either. Alternately, if it _is_ valid fair use and the
lawyer's response was simply "we're in the right but it'll cost more
than it's worth to defend ourselves" then I'm still fine with removing
the image - I just want to know what the actual reason is. I don't think
it's a good idea for Wikipedia to become a game of [[Mao (game)|Mao]]
where the only way to figure out what the rules are is to keep track of
what actions result in getting penalty cards.

Might it perhaps be possible to create a public archive somewhere of
statements from the Foundation about what's allowed and what isn't, and
why? I can't imagine there'd be many situations where secrecy is
necessary, at least not in the long term.