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.