On Thu, Jan 25, 2007 at 01:18:09AM +0200, Ilmari Karonen wrote:
However, the Commons, like Wikimedia in general, doesn't operate on that principle; for them, the question is closer to "is it 99.9999% certain that not only I, but also anyone else reusing this, will get away with it?" Which is about as close to "is it legal?" as you can get.
I'm not sure that actually follows, but...
To use my example, above, my taking a photograph of an artist posing next to his painting does *not*, to me, seem to meet the description there, quoted from the statute, of a derivative work, as it's not *based* on the original painting: he could have been standing next to *anything*.
You know, you could turn that around and claim equally well that the photograph isn't based on the likeness of the artist, since *anyone* could've been standing there next to the painting.
Your claim seems to be that the inclusion of the painting in the photo is only incidental. Depending on the actual circumstances, this might in fact be the case, if the main subject of the photo actually was the artist and not the painting. Depending on other factors, such as whether the painting was shown in its entirety or not, and whether your photo might compete with the original painting or other works (such as posters) based on it, you might be able to claim the use as fair -- or you might not.
I'm actually pushing it farther than that: I'm asserting that *even if the artist requested that I take his photo whilst he was showing off said painting* (which perhaps he just won an award for) that the appearance of the painting in the photograph is incidental and incurs me no derivation of his copyright.
Let us examine news photography in that context, shall we?
Look at it this way: If I take the latest MTV hit single, play it in the background while recording myself repeating "Yo!" over and over again, and release the recording as my own song, I *will* get sued and probably lose no matter how hard I might claim that the song is merely incidental background to my creative rapping.
Not the same situation, and I believe you realize that.
*Specifically* though, what troubles me is the approach to the characterization on Commons:Licensing. It seems to be making legal assertions that may not actually be valid, when perhaps what it ought to be saying is that the issue is not entirely clear, and Commons chooses to err on the side of (over-)caution.
If you think this is the case, feel free to fix it (or suggest improvements). Just try to be careful not to replace any existing legal assertions with other equally dubious ones, express or implied.
Certainly. Why do you think I'm *submitting* myself to all this ignominy. :-)
Cheers, -- jra