[Wikipedia-l] Fair use

[Alex T.]

From: "Anthere" <anthere6 at yahoo.com>

> Could anyone knowledgable help us here ?

I volunteer to try, but remember this is not legal advice
even though IAAL.
 
> As a reminder, we were told that, being hosted on a
> californian server, we had to respect US law, and not
> everyone understand american law :-)
> 
> Could anyone explain to us what is fair use for images

There is a page on fair use in the English Wikipedia
http://www.wikipedia.org/wiki/Fair_use
> 
> How precisely it applies. On which types of pictures.
> What it implies. Which are the limits. And when we
> should consider a picture is fair use and as such may
> be inserted. Or not.

Fair use is a defense. It applies to _each_ _use_ differently.
It depends on the picture and where you got it from and
how it is used, i.e. why is it being included in the article.

At the bottom of the Fair Use page is a checklist:
from Purdue University:
http://www.copyright.iupui.edu/checklist.pdf 
I think this is a useful checklist for a fair use analysis.

Going through this analysis can give one some comfort
about the potential finding of fair use (remember it is
only through judicial action that fair use is determined,
we can only guess on it). It is my suggestion that
such an analysis be put on the page description and
added in each article that the image is used (the fair
use of an image in one article may not be fair use in
a different article). I suggest describing the analysis
in the article in hidden text i.e. <!-- The use of 
image.jpg which is otherwise copyright is fair use
for the following four reasons.... --> This will hopefully
remain part of the article and anyone who uses the
article under the GFDL can determine if their use
is different that the use claimed by Wikipedia.
It is up to them to make their own determination
of fair use. A fair use is not necessarily transferrable
under the GFDL.

> I am not looking for an extensive discussion over the
> merit of including fair use images or not :-)
> 
> Just on which principles we can base our decision
> making over keeping or not keeping the images

I've recently tried to make sure that the list of the four
major factors that apply to fair use determinations is
explained to some degree in the [[fair use]] article.

Unfortunately Anthere it is not always a clear determination.
Not all judges/juries apply the law the same way. 
It is a factual determination based upon a total 
appreciation of the evidence as presented during the
proceedings. Lawyer may also, when giving an 
opinion, differ. This is why some prefer to get permission
and even pay a small royalty when using something
that might even qualify as fair use. It is better to pay
that royalty than to pay the costs of defending fair
use in court.

I do not mean this to be evasive, but some people talk
about fair use as if it can be defined easily.
See http://www.wikipedia.org/wiki/Wikipedia:Copyright_issues
and
http://www.wikipedia.org/wiki/Wikipedia_talk:Image_use_policy/copyright

I do not agree. I think that it cannot be clearly defined 
and that it is not a given that fair use on Wikipedia 
means that any subsequent sublicensee
will automatically be able to claim fair use on the GFDL.
This is the major problem when it comes to fair use on Wikipedia
one cannot say that an image is fair use, one can only say
"Use of this image on Wikipedia is fair use, that fair use may not
be transferable under the GFDL."

Alex756