[WikiEN-l] Fair use issues; we need serious help

[Nick Wilkins]

On 7/18/07, Ray Saintonge <saintonge at telus.net> wrote:
>
>
> "Fair use" seems to be the cry for anyone who can't be bothered to look
> more deeply into a situation.  This is a 1951 photograph!  Where was it
> first published?  Who owns the copyright?  Was it properly renewed?
> .Given that some have attached the "iconic" description, has anyone with
> a connection to the article ever filed a copyright action about the
> picture?  In the absence of such a legal actions perhaps the copyright
> has been effectively abandoned.  The answers to these questions may very
> well lead to a determination that the image is already in the public
> domain.  If that's the case fair use is not relevant.
>
> With older photographs especially it would be nice if people did a
> little homework before diverting the debate into a fair use discussion.
> It would be a far greater benefit to the encyclopedia if works treated
> as unfree by virtue of uncertainty were established as free.
>
> Ec


Guessing that the photograph was first published in the United States, since
it was taken in the United States by a photographer working for a primarily
American news syndicate.  UP probably got the copyright at the time as a
work for hire.  I'd be quite leery of guessing about renewals, and would
tend to err on the side of assuming that it was renewed, and therefore that
UPI still holds the copyright.

If it were published somewhere else first, the considerations get
complicated pretty fast.  That's a morass I wouldn't want to venture into.
Can you find a death date for Arthur Sasse?  Is he even dead?  Is the
copyright length even based on his death, or is it on the death of the
entity that hired him?  How does the country treat works for hire?
Corporate authorship?  More importantly, how did the country treat such
things, and what were the copyright durations, in 1951?  I don't know much
about international copyright law, but my guess is there's not much chance
that the work is public domain if it was first published outside the United
States (and if Sasse lived until at least 1957, almost no chance).  And
guesses is really about as good as it's going to get if you want Wikipedians
to try to answer the question of whether the work is in the public domain or
not.

As for absence of legal actions, that has nothing to do with whether the
work is still under copyright or not.  It may have a good deal to do with
whether legal action based on Wikipedia's use of it could be expected, but
copyright isn't abandoned through neglect.  So, my inclination would be to
say that without some reason to believe that it was not renewed, the image
should be presumed to be under copyright protection.

It may well be a benefit to an encyclopedia to treat works of uncertain
status as free to use, especially when it appears unlikely that such use
will result in legal action.  However, I would not agree that it would be a
benefit to a *free* encyclopedia.  Unless works are actually known (with at
least a fairly good degree of certainty) to be free, they should not be used
unless they fit our policies for the use of non-free works.

-- Jonel (not a lawyer, this is not legal advice, etc., etc.)