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

[Gregory Maxwell]

On 11/15/06, Matthew Brown <morven at gmail.com> wrote:
> I think that the vast majority of these 'fair use' images are not
> images in either problem category.  Most that I've seen are
> fundamentally images whose licenses/permission would permit them to be
> used on Wikipedia - in other words, we won't be sued for using them,
> nor will their creators have an issue for them to be used here.  The
> issue is that the licenses, while permitting use on Wikipedia, don't
> count as sufficiently free to be acceptable.
>
> In other words, 'fair use' is being used as an end-run around the
> prohibition of non-free with-permission.  The only conflict is with
> Wikipedia policy, not the law or general ethics.

I'd be interested to in exploring your view on this further...

First, cases where the copyright holder doesn't care about the content
being in Wikipedia are primary candidates for obtaining free licenses.
I mentioned this in the part above the cutline. A primary objective of
our project is increasing the free content of the world. By accepting
non-free material from friendly copyright holders we are failing at
that important goal.

Secondly, I and many others (as well as our policy) have advocated a
position that only our uses where we are actually discussing the
"copyrighted work" and not something which the copyrighted work simply
contains is actually covered by fair use.

Careful consideration of the language of 17 U.S.C. § 107 as well as
the legal, social, and economic motivations for fair use suggests this
interpretation of the law. Furthermore, all the case law affirming
fair use that I've seen has been around direct use (i.e. discussing
the copyrighted work itself), and the substantial body of caselaw
*denying* claims of fair use in parody are built around indirect
parody (copy the work to make fun of something almost totally
unrelated).

I have not found a good example of a court saying you can't copy X's
work to critically comment on Y... but I'm tending to think that the
reason is because no one but us is foolish enough to try.

As I pointed out in my prior post,  go to getty image's editorial
section ... look at the images available (and their prices :) ) and
explain to me an interpretation of copyright law which would allow us
to use these pictures in our biographies, but which wouldn't put
getty's editorial images department out of business.

Because most of the pictures of people (especially living people) are
not themselves notable, it can be argued, under the above
understanding of fair use, that our use of these pictures is not
clearly supported as fair use.  (There are examples of picture of
people which are notable, such as the classic photograph of Marlyn
Monroe... but most pictures on our bio are just pictures, the same as
hundreds of other pictures of the famous person).

Because of the above point, I'm not sure how you arrive with "most
I've seen" being clear cases of fair use under the law.  Could you
clarify: I think we're either working with a different definition of
fair use, or talking about a different set of images.

Generally, I prefer that we avoid the legal arguments as they can be
heavily jurisdiction specific and without very similar case law they
often come down to the whim of the court.

I believe that "maximize free content" is a more solid piece of
guidance. Not only is it aligned with the project's goals and the
foundation's mission, an effort to maximize free content also lands us
in the most 'legally safe' zone because an effort to maximize free
content would only allow us to use non-free content where we must and
where no alternative is possible... which is the sort of circumstances
the fair use provisions of our law are intended to protect.