[WikiEN-l] "Fair use" images of living people

[Gregory Maxwell]

On 11/15/06, Fastfission <fastfission at gmail.com> wrote:
[snip]
> That's all well and good. But does this mean that NO images of people
> who are currently alive can be used under "fair use"? After all, if
> they are alive, potentially one could take a picture of them and
> license it as GFDL.
[snip]

It's not hard (finally) to find examples where our policy has
increased the pool of free content. I don't think you're disputing
that from that perspective our policy wins.

That alone makes a pretty compelling argument, and as you pointed
out.. it's that thinking that underlies much of that policy.

There are two more angles that are of significance:

1) The legal.
2) The ethical.

== The legal ==

On the legal front, I haven't found any positive parallel examples in
US case law for the sort of usage you're discussing. What we're
looking for is where X takes a picture of Y, and then Z uses X's
picture of Y for no reason involving X but rather because Z simply
needs a picture of Y.   It's not at all clear that this would be
permitted under fair use.

The ability of Z to use X's work for the purpose of critical
commentary and academic discourse regarding about X and his work is
well established while there is an entire industry
(http://editorial.gettyimages.com/ms_gins/source/home/home.aspx?pg=1,
AP, etc) built around Z playing X to get pictures of Y.   There is a
lot on money behind groups who profit because fair use doesn't make
any editorial use fair game.

So I think we can agree that the legal case there is at best unclear,
and that if we can avoid legal issues we generally should.

== The ethical ==

I think this angle is the simplest of all...

We *completely* and *utterly* depend on the charity of people who
create create content.

No matter what your position is on the ethics of copyright in general,
I suspect that if you think carefully you will agree that acting
against the wishes of the producers of content is not the right thing
to do.

In cases where we use a work to discuss a work, there is a clear case
of necessity... and fair use was created specifically to address these
cases.  Since most works are not self-referential it would be hard to
say that using a work to discuss a work is using in a capacity which
replaces its commercial value.

But imagine where myself and two other photographers take a picture of
Mr. Y for the express purpose of selling the work for inclusion in
newspapers, encyclopedias, textbooks, etc.  Wikipedia then takes my
picture because it needed a picture of Mr.Y and mine was the best (of
course :) ), places it into the article on Mr. Y, distributes it
widely, doesn't compensate me (claiming 'fair use').  The commercial
value of my work is reduced, I have to play an endless game of
wackamole if I do want to try to put the horse back in the stables..
Meanwhile my competitors with lower quality images profit without
difficulty.    Lets ignore the legal issues here, ... I don't see how
anyone could call this sort of use 'fair' using any sane lay
definition of fair.

The huge innovation of Wikipedia over just about every other non-wiki
based site which claims to be supported by community created content
is that we have PROVEN that it is possible to create something of
value beyond far beyond fart jokes and soda rockets without 'community
created' being a codeword for 'copyright violation'.

We've gone so far already in creating our own original quality
content, and we find ourselves at the mercy of both the law and of the
fickle goodwill of the content authoring public.   I simply have not
seen evidence that we're anywhere near the limits of what can be done
with Free Content, so I see no reason to risk our unique position for
a little temporary expedience.

and why now? when we're making such tremendous progress at getting
Free pictures of famous people?

Or put another way, the only clear way to survive as a *large* 'user
contributed content' site with a laissez-faire attitude on copyright
is a Google buyout and the associated cash injection.  Perhaps it's
just me, but I haven't heard the community asking us to go in that
direction.