Wikipedia talk:Non-free content/Archive 5

This is an archive of past discussions on Wikipedia:Non-free content. Do not edit the contents of this page. If you wish to start a new discussion or revive an old one, please do so on the current talk page.

Archive 1

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Archive 3

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Duplicated policies

Do we really need Wikipedia:Fair_use#Policy and Wikipedia:Fair use criteria like duplicated policies? They look like identical duplicates.--Jusjih 21:09, 3 June 2006 (UTC)

Actually of you look at the wiki code in the Wikipedia:Fair_use#Policy section, Wikipedia:Fair use criteria is being used as a template there. Zzyzx11 (Talk) 23:34, 3 June 2006 (UTC)

Thank you very much for your answer. I now see what you mean.--Jusjih 11:54, 4 June 2006 (UTC)

Picture of a sculpture?

Hello. I recently added Image:Magical Stela.jpg and applied the {{art}} tag to it. However, this is an image of a sculpture, which is not a two-dimensional work of art. I couldn't find a more appropriate tag, and I wasn't sure why "two-dimensional" was listed as a criterion for fair use. If this is an inappropriate use, please let me know and I'll list the image for deletion. If this use is acceptable, perhaps the template's wording should be changed. I still consider myself a fair use newbie, so any guidance is appreciated. Cheers, Lbbzman 00:18, 5 June 2006 (UTC)

I think you are confusing what is the "work" in this instance: it is not the object photographed but the photograph itself. The fact that it happens to be of a very old artifact does not matter in this case. --Fastfission 00:30, 5 June 2006 (UTC)

Gotcha. Thanks for the clarification and the quick response. Lbbzman 00:32, 5 June 2006 (UTC)

Fair use of Dictionary illustrations?

I have just uploaded a scanned image of a Phonautograph, a precursor to the Phonograph. {See Image:Phonautograph ncd.jpg) I can't find a category to put this under. I think that is fair use. Can anyone tell me what to put this under? -- Auric 01:28, 7 June 2006 (UTC)

If the phoautograph is really as old as it seems to be, you might be able to find an illustration from a pre-1923 dictionary, in which case such an image would be in the public domain. Alternatively, the patent application should have some suitable images you can use. There's also the possibility of finding one in a museum somewhere and taking a picture of it. In any case, there's no reason to use a fair-use image for this. --Carnildo 06:44, 7 June 2006 (UTC)

Since you're using the image for the same purpose as the original author was, it's unlikely to be fair use. —Simetrical (talk • contribs) 08:32, 7 June 2006 (UTC)

Thanks for your suggestions. I'm going to subistute one from the online version. -- Auric 20:00, 7 June 2006 (UTC)

Comiccover and GFDL-self

Quick question: Can an image be tagged with both {{Comiccover}} and {{GFDL-self}} because the uploader scanned the image him or herself? I am guessing no, but I want to have some backup. The image in question is Image:Usagi_Manga.jpg. Thank you. -- ReyBrujo 04:49, 7 June 2006 (UTC)

Nope, copying a copyrighted work does not give you any rights to the copy. AFAIK it is never apropriate to combine a free license tag with a fair use one, if the material contains parts that are unfree the entire image is unfree. It makes no sense to say that parts of an image is free licensed if people can't actualy use the whole thing anyway, well IANAL but I think that's the gist of it (as long as we don't delve into the murky gray areas of "how about a photograph of a magazine shelf in a store" type issues). --Sherool (talk) 06:12, 7 June 2006 (UTC)

It's possible for material to be partially unfree. For instance, if I make an artist's impression (a derivative work) of, say, an anime character, I can release my modifications under the GFDL while the base work is still copyrighted by the anime creator. This means that to use the work, you must a) get permission from the anime creator (which satisfies the base-work requirement) and b) either i) get permission from me, or ii) use it under the GFDL (either of which satisfies the derivative-work requirement). —Simetrical (talk • contribs) 08:38, 7 June 2006 (UTC)

Merely scanning an image grants no rights. In the case of a genuine derivative of an unfree work, I would tag it with the appropriate fair-use tag and make a text note that the derivative part is licensed appropriately; putting both a free and an unfree tag will probably confuse the copyright bots. —Simetrical (talk • contribs) 08:38, 7 June 2006 (UTC)

Fear

Why is everyone so obsessed with copyrights? Are they scared Wikipedia will be sued? If that's the case, why hasn't MySpace been sued? Look at anyones MySpace or some message board avatar, and I guarentee you will find some sort of Fair Use violation. It is completley unjustified, this behavior. Th e Gerg 22:06, 7 June 2006 (UTC)

We are supposed to be creating a free, reusable encyclopedia. Jkelly 22:12, 7 June 2006 (UTC)

Additionally, Wikipedia's use of copyright content can often put it into direct competition with copyright holders, increasing the possibility of legal action. Myspace avatars generally do not do this. --Fastfission 22:14, 7 June 2006 (UTC)

It's not that we're afraid of being sued. We just have respect for intellectual copyright. —Simetrical (talk • contribs) 22:20, 7 June 2006 (UTC)

Song lyrics?

Can song lyrics be put on Wikipedia? What is their status? I was thinking of adding lyrics for Chantilly Lace (song). --Howdybob 01:41, 8 June 2006 (UTC)

The entirety of song lyrics that are freely-licensed or in the public domain can go to Wikisource. Otherwise, use only the amount that is absolutely necessary for discussing the song and claim Wikipedia:Fair use. The lyrics to "Chantilly Lace" are under an unfree copyright. Jkelly 01:49, 8 June 2006 (UTC)

Please also note that English Wikisource now forbids fair use and non-commercial licenses. If a lyric is copyrighted with non-commercial license only, claim fair use here but do not post at Wikisource.--Jusjih 18:49, 12 June 2006 (UTC)

Photographs of objects

Is a photograph of an object, as in this image of a Pikachu model, acceptable as free use, or is it still fair use? smurrayinchester^{(User), (Talk)} 18:34, 8 June 2006 (UTC)

As I understand it, that's considered a derivative work and therefore subject to the same copyright as the original. It can be used on English Wikipedia if you can make a convincing fair-use rationale for it, but it will be deleted from Commons, where fair-use images can't be used. Angr (talk) 19:29, 8 June 2006 (UTC)

What about this Image:PikachuANAplanepic.jpg? Arniep 07:34, 11 June 2006 (UTC)

Well, it's been on Commons since February with no complaints, and they're usually pretty good about catching copyvios there, so either it's OK or it's slipped past under the radar! Angr (talk) 08:01, 11 June 2006 (UTC)

Can anyone help me out?

I recently nominated The Twilight Zone (1959 TV series) for good article status, but it failed because "none of the images have Fair Use Rationales." I checked the pics and they have the TV tags on them. I'm new to this fair use picture stuff, so can anyone help me out or explain what to do so I can re-nominate the article? Thanks - Zone46 01:13, 11 June 2006 (UTC)

See how a rationale should look like. -- ReyBrujo 01:22, 11 June 2006 (UTC)

Fair use of screenshots ever contested?

Yeah, I've got a question. Has any company ever even threatened legal action against someone for using a screenshot? I'm getting tired of all the copyright paranoia of fair use of screenshots (among other things). Always wanting people to give these long, detailed fair use reasonings for everything is a pointless hassle. I'm sure these companies are just hating the free publicity they get from a well-pictured article. The only cases I could seem anyone even caring is if the images were illegally obtained before the film/game is finished (and they are trying hard to keep it under wraps) or if the image is used in a defamatory way (not going to happen here). I feel that use of the tag should be enough in all situations, and I would like for people to stop having to add fair use rationals to them. But yeah, I'd like to see some precedent that screenshots have been the cause of legal disputes.--SeizureDog 04:43, 11 June 2006 (UTC)

We don't prohibit invalid fair use for liability reasons (see the Online Copyright Infringement Liability Limitation Act). We prohibit it because we want the encyclopedia to be free content, and because we respect the principles of intellectual property rather than just the letter of the law. Using someone else's work without permission or other justification is morally wrong. —Simetrical (talk • contribs) 05:30, 11 June 2006 (UTC)

I disagree. The vast majority of people want their work to be used. People don't create things to keep to themselves, they create them to share with the world. What is morally wrong is using someone else's work for your own gain. In any case, I'm not talking about static pictures, I'm talking about screenshots. Under no circumstances would anyone see a screenshot and say "that screenshot was so good I don't even need to see the movie or play the game now!" Fair use in other areas can be argued about later, but taking a still from a movie or game is absolutely no comparision to the experiencing the original medium. I don't understand the difference from taking a picture of your shirt, spoon, house, or car and taking an image from a movie. In both cases, they were made by someone else, but in both cases, you paid for the object. You should be able to take pictures of them however you want. --SeizureDog 10:55, 11 June 2006 (UTC)

For the first point: while many would be fine with us reproducing their stuff, to a point, they wouldn't be fine with just anyone reproducing their stuff, which brings us back to the free-content issue. We want our content to be reproducible by anyone.

As for buying something, clearly purchase of an object doesn't give you the right to copy it, in whole or in part; that's what the entire idea of copyright (copying-rights) stems from. Possibly we should be a bit more lenient in allowing screenshots, however (I'm fine with the way the Vegeta article used to have a screenshot to illustrate each attack, for instance). —Simetrical (talk • contribs) 22:26, 11 June 2006 (UTC)

The matter is not as simple as Using someone else's work without permission or other justification is morally wrong. Because we do not accept specific permission or non commercial licences because Wikipidia wants Others to be able to use the sight under a GFDL.

The Fair use removal movement has Various members all along the spectrum. Some go so far as to argue with the creator of the work about our policy. For instance Image talk:Uncyclopedia logo.png The licence is Noncommercial but Wikipedia no longer accepts Noncommercial and Specific permission, but Wikipedia Does not Accept specific Permissions and Fair use, But we keep our Fair use Policies really strict so we can't use it on userspace. All these policies do have legitimate grounds, however the Combination of various legitimate policies creates so not so legitimate outcomes. Of course we can't sell T-Shirts with the Uncyclopedia logo just like we can't sell the Wikipedia logo on T-Shirts. It's not Just a matter of Legal an Ethical issues. It has the potential to become a Chaos of Possibilities that must be avoided at all costs when some Fair use Enforcement goes to far beyond our goals, (However we each have our own goals so to some people the image is Obviously Acceptable for Wikipedia and other it is Totally unacceptable).--E-Bod 07:27, 11 June 2006 (UTC)

However of you look a the bottom of the page All text is available under the terms of the GNU Free Documentation License never the less one of the goals of Wikipidia is to have all content under the GNU however their was a great Compromise to get us where we are now. An inconsistent mess.--E-Bod 07:30, 11 June 2006 (UTC)

I had once thought it would make sense to come up with "stock rationales" which would apply to all screenshots and media covers and other "generic" uses, since the rationale is always going to be the same for them, which would be linked to from the templates. However I never finished the project. If anyone is interesting, they are welcome to play with it at Wikipedia:WikiProject Fair use/Fair use rationale. --Fastfission 15:52, 17 June 2006 (UTC)

Photos including copyrighted logos

From my understanding there is no problem with Image:Arby's-Midland-MI.jpg, but the uploader tagged it as FU because a copyrighted logo can be seen on the image. Is this really necessary? I think this could be tagged {{PD-self}} without problems. Just because something shown on the photo is copyrighted doesn't mean the photo itself can't be pd, right? It's not like it's a photo of just the logo... --Fritz S. (Talk) 09:33, 11 June 2006 (UTC)

My gut feeling is that such photos would be ok, but then again gut feeling is a very poor judge of copyright issues. For exampel a bunch of Star Wars related images was recently deleted off Commons for infrindging on copyrighted characters (photo of a guy in stormtrooper uniform taken at a Star Wars convention for example, pluss photos of action figures and other such movie related toys),and it would never have ocured to me that such images might be a problem. I think it's ok to release a photo under a free licese even if there are a logo somewhere in the background, asuming the logo is just "accidentaly" part of the image rather than the subject of it, but IANAL. --Sherool (talk) 12:27, 11 June 2006 (UTC)

Even if the image did constitute a derivative work, I do believe (note: IANAL) that the use of the logo in it would certainly be fair regardless of how the image itself is used. However, the real questions are: a) does it actually count as a derivative work at all, and b) whatever the answer to A, how should such an image be tagged on Wikipedia? Note that the answer to question A may depend on the jurisdiction (see, f.ex. de:Panoramafreiheit), although in this case it would seem clear that U.S. laws apply. —Ilmari Karonen (talk) 13:59, 11 June 2006 (UTC)

Amusingly I had a pretty good discussion with some other folks about this subject a few weeks ago (I was in the Bay area and briefly pondered going around and getting a lot of sign images for German wikipedia, but then I realized that, in the US at least, such images would probably have the same copyright problems as using the logos directly)... In the US it apparently depends on if the the copyrighted work is the primary subject of the image and a critical aspect of it, or if the inclusion is merely incidental, just as Sherool said. In cases which are not black and white the way the the image is used becomes material. In my view our policy should be to treat images which contain substantially more than the copyrighted work as free images, and treat images which are just intended to duplicate the copyrighted word as encumbered by third party rights. So in this case, it's a free images. Can you imagine a world where you could prevent someone from distributing photos of your business locations from a public roadway simply by plastering it with copyrighted logos? Lets hope US law never becomes so insane. --Gmaxwell 15:29, 11 June 2006 (UTC)

I would say (not being a lawyer) that it's technically a derivative work and fair use, but the nature of the image is such that virtually no use of it would be unfair. The only way you could use it unfairly would probably be to carefully cut out the logos/posters and use them by themselves. (So, Arby's can't prevent us from distributing the image just by plastering it with copyrighted logos, but our own policy might screw us over on this.) —Simetrical (talk • contribs) 22:20, 11 June 2006 (UTC)

Here is annother example, of the 970wfla mobile news suv ... Image:970 WFLA LOGO SUV.jpg ... tagged as fair use, by me, because of the logo connection. The 'subject' is the suv thus the framing of the image, but the logo is a sizeable percentage of the image. Do I read this right that it can be tagged as other than FU and thus be sent to commons? (maybe even CC-BY-SA-2.5) -- ∞Wirelain 02:57, 12 June 2006 (UTC)

If the image is licensed under Fair use, it can't be inlined in Talk pages, that is why I took the freedom of modifying it into a wikilink. -- ReyBrujo 03:10, 12 June 2006 (UTC)

Yes, that is it's current licence. However, as I'm the photographer and uploader, can it be licenced otherwise? (the inline image saved all readers having to follow the link, but it's a trivial matter.) -- ∞Wirelain 19:39, 12 June 2006 (UTC)

Well, IANAL, but it seems to me the focus of Image:Arby's-Midland-MI.jpg is the building, not the logo. Therefore, the photograph is the photographer's intellectual property to license as he will, not Arby's's. I say, change that {{logo}} to {{PD-self}} or whatever other own-work license you choose. Angr (talk) 19:52, 12 June 2006 (UTC)

Is this fair use?

Two questions:

Is this image fair use? (also available here). I'm trying to fix up the page on Pan Am Flight 214, and I think a picture is in order.
Should I be asking this question elsewhere? ;-)

--Bachrach44 02:18, 13 June 2006 (UTC)

This is as good a place as any to ask. I would say that your claim of fair use would be quite valid, since it is a historically significant image. Nobody can take images of the crash anymore. Be sure to include both a {{Fairusein}} tag and a rationale. Also, when you include the source, try to include more than a URL. The one site says the photographer is unknown, but the photo looks like newsprint... see if you can find out who originally published it. ~MDD 46 96 03:40, 13 June 2006 (UTC)

Perhaps a better tag than {{Non-free fair use in}} would be {{HistoricPhoto}}, since as MDD said, the crash cannot be re-created. Angr (talk) 05:32, 13 June 2006 (UTC)

Yeah, I've actually been trying to find the original source of that photo (my guess was also either government authorities or the media), but apparently my google-fu is weaker than I thought. --Bachrach44 14:28, 13 June 2006 (UTC)

Policy permission

In a dispute about an image of the PlayStation 3 console, I checked their press site [1]. After searching it, I found nothing on their policy for when their images are allowed to be used. I then tok it upon myself to find out by contacting a Sony rep, in her initial mail she stated "If it is one of the approved images from the online press office then this is fine to use in a magazine or on the internet for an article about PlayStation."

As this constitutes as original research, I replied by asking for them to post a type of policy on their website so that Wikipedia might use their images with permission. Would this be at all ok, or wouldn't it matter if they posted that on their website? Havok (T/C/c) 06:55, 13 June 2006 (UTC)

Unless the image is released under a free license like the GFDL or one of the Creative Commons licenses that allows commercial usage and derivative works, then Wikipedia can't use the image except under a valid fair use claim (in which case we don't need their permission). See Wikipedia:Fair use for discussion. Once the PS3 is released in November, however, it should be easy to get a free-use image of one (we just need some Wikipedian who's bought one to take a picture of it and upload it), at which point using Sony's own image will no longer be necessary or desirable. Angr (talk) 07:39, 13 June 2006 (UTC)

What is the proper tag?

We would like to use a photo image of famous psychoanalyst Karen Horney (d. 1952). It is in the Karen Horney Archive of Yale University Library, #CN2084, labelled "studio portrait". The Library releases the photo for a small fee to anyone under "fair use". We contacted Dr. Horney's daughter, Marianne Horney Eckardt, MD, who wrote (email) "I am Karen Horney's daughter and all requests for fotos have come to me for over 50 years, including the one you are intersted in. I would not know who took the foto ...".

We could not locate a proper "fair use" tag to use, or is there another category to use (for Wikipedia:en)?

Thanks, ABenis 21:15, 16 June 2006 (UTC)

You do not need to pay any fees to use an image under fair use. Whether the usage of the image is fair use or not would depend very much on the context in which it is used. Johnleemk | Talk 09:14, 17 June 2006 (UTC)

Greetings. There is really no fee: there is a small charge paid to the Library for the preparation of a copy of the photo. We wish to use the photo in an article on WP:en. Which copyright tag is appropriate here? It would be a great help if you (or anyone) would paste the correct tag in your reply. Many thanks. ABenis 05:25, 18 June 2006 (UTC)

It is possible that the image's use on Wikipedia would be forbidden. We need more context. Who took the photo, and when? When was it first published? —Simetrical (talk • contribs) 06:10, 18 June 2006 (UTC)

The studio photo was taken sometime in the 1920's (Horney was born in 1885). It was published in a biography of Karen Horney in 1989, credited to Bettmann Archive. We contacted Dr. Horney's daughter, Marianne Horney Eckardt, MD, who wrote (email) "I am Karen Horney's daughter and all requests for fotos have come to me for over 50 years, including the one you are intersted in. I would not know who took the foto ...". Thanks, ABenis 15:35, 18 June 2006 (UTC)

If it was taken prior to 1923, it might be public domain in the United States. Hm. Who took it, and for what purpose? To be more specific, who owns the copyright? Also, how would the image be used in the article? Would the article comment on any aspects of the image? Johnleemk | Talk 16:26, 18 June 2006 (UTC)

Hello. The Yale Archive labels it as a "studio portrait". The exact date not known. The photographer is not known (if anyone would know, it would be Dr. Horney's daughter, who has been involved with furnishing photos of her illustrious mother for over fifty years.). The photo is widely found on the web and where there is attribution, it is to an archive or to UPI. There has been no attribution to a copyright owner. A small image (approx. 200-pixel) of the photo would be used in a WP:en article on psychology/personality with the caption "Karen Horney (1885-1952)". The article would not refer to the image at all, and would not comment on any aspect of the image. Thanks. ABenis 22:02, 18 June 2006 (UTC)

I don't think that would likely be fair use, although it might be. I dunno. Since the author is unknown, it will be in the public domain 95 years after its publication or 120 years after its creation, whichever is shorter; that would mean at least ten years, probably more and possibly as much as 40 years. —Simetrical (talk • contribs) 05:33, 19 June 2006 (UTC)

List of Puerto Ricans

Hi. Would someone mind taking a look at this? I have been reverted three times, by three different editors, when removing a single film screenshot, but the whole list is a mess of images taken from random places on the web and tagged as promotional. Jkelly 17:07, 17 June 2006 (UTC)

Overusage of fair-use images

I noticed that Corfu has eight fair-use images for tourist locations. Is it just me or this is a bit excessive? BTW, is "promotional" tag valid in this case?

bogdan 16:13, 18 June 2006 (UTC)

None of those appear to be fair use, seeing as they do have a negative impact on the resale value of those images. The tourist companies which took those photos intended to use them to promote their business - as in, attracting tourists to use their services to visit Corfu. What we're doing is essentially using these images to depict (and perhaps in a sense, promote) Corfu in general, which may lead to some business going to these travel agencies' competitors. (Images from the government of Corfu might have a better claim on fair use, then.) IANAL, but it seems to me that these images aren't fair use. (Also, at least one is rather high-resolution, and all of them could be replaced with free images.) If we do have a fair use claim at all, it is rather weak. Johnleemk | Talk 16:32, 18 June 2006 (UTC)

I agree completely. There's no reason for an article on a location anyone can get to to have any fair-use images at all. I say, remove them all. Angr (talk) 18:57, 18 June 2006 (UTC)

I have orphaned them all. Jkelly 19:32, 18 June 2006 (UTC)

Hi there. I don't agree with Johnleemk's position that businesses will lose customers, quite the opposite they may be grateful for the added exposure, but my intention was not to promote any kind of business only to enrich the reader's experience by highlighting certain unique attributes of the history and landscape of the island. Please also refer to the discussion page of Corfu link: Talk:Corfu#Images. I will not repeat my points here for brevity but I want to ask a favour: If as Johnleemk says all images can be replaced by free ones could he possibly send me a couple of links with the free images?. He can use Bogdan's list of images above as the reference. Finally, one could have invited me to this talk page as a courtesy before any decisions were made. Dr.K. 00:05, 20 June 2006 (UTC)

We don't grab random images from commercial websites just because they happent to perfectly illustrate what we want to discuss, any more than we would copy the introduction of a tourist guide because it was a better summary than we could write. There is a link to Commons above, and here is a link to CC-BY content at Flickr, and here is a link to CC-BY-SA content at Flickr. Jkelly 00:49, 20 June 2006 (UTC)

If the images perfectly illustrate what we want to discuss then by definition they are not random because what we discuss in the Corfu article is not a random collection of postcards as in the links provided. If we treat articles that way we may as well program OrphanBot to write the articles for us. Dr.K. 01:04, 20 June 2006 (UTC)

Yes, we do - that's historically exactly what we have done until we get a more free alternative image - something we obviously want to encourage as far as practical. Jamesday 01:38, 22 June 2006 (UTC)

What we're doing is essentially using these images to depict (and perhaps in a sense, promote) Corfu in general, which would be a transformative use and would favor a finding of fair use. Remember a different use is positive for fair use - it's the same use that would be potentially problematic - a postcard image used on a postcard, perhaps, while a postcard used to illustrate an article isn't a postcard so is transformative and likely to be fair use. On the resale question, '"it is a given in every fair use case that plaintiff suffers a loss of a potential market if that potential is defined as the theoretical market for licensing the very use at bar"). Accordingly, we do not find a harm to BGA’s license market merely because DK did not pay a fee for BGA’s copyrighted images'. Graham v. Dorling Kindersley Limited (PDF) pages 19 and 20. That is, of course fair use can always cost some potential license revenue loss but that does not prevent a fair use result - that happens when it's replacing the work and isn't fair use. If it's fair use, it's allowed to reduce the revenue because the copyright holder isnt' entitled to fair use revenue anyway - it's one of the things they don't get granted. These Corfu images are a really nice example of a case where fair use is helpful initially but where a tag or other note in the image caption to encourage others to replace them would be really good - so people ersearching Corfu before going there would know that we want them to take images to replace these. Can't encourage them that way without the original fair use image, so it's worth using them for a while, until the better images are provided. Jamesday 01:38, 22 June 2006 (UTC)

Excellent suggestion. Dr.K. 16:58, 22 June 2006 (UTC)

Royal Society photos

Hi I'm hoping someone can help me determining whether a whole set of photos can be used as fair use. On the Royal Society website there is a database of past fellows, many of which include official photos. For example, Francis Thomas Bacon has a photo here. Is this image fair use on the relevant article? Are the others similarly fair use where no alternatives exist? There is some information on copyright here but I'm not sure if it holds. Thanks Andeggs 21:57, 18 June 2006 (UTC)

It's unlikely that very many of those images would be fair use. The Royal Society makes money off selling them for exactly the purpose we want to use them for. —Simetrical (talk • contribs) 05:36, 19 June 2006 (UTC)

Album and single covers implicitly state a source

I was just thinking... We are supposed to use the source of the image in order to detect possible copyright infringements. However, in the case of album/single covers like Image:Bj s05.jpg, it is clear that the image comes from the cover of the album/single, thus (technically) the source is implicitly the album or single, and is not necessary to be mentioned. Am I correct with this assumption? In this image, there is only a license, and is probable that a bot will mark the image as missing a source because the only content of the image page is the license.

I was tagging some of these images with {{subst:nsd}}, and suddenly thought that, at least with singles and albums, the source is implicit. For now, I am removing the tag from the other images. What others think about this? -- ReyBrujo 02:38, 19 June 2006 (UTC)

I would generally agree. The rationale for sourcing is to make sure the status of the image is what the uploader says it is; since the status of the image tends to be extremely obvious in the case of album covers and the like, source is superfluous if not outright silly. —Simetrical (talk • contribs) 05:37, 19 June 2006 (UTC)

May be the official rational but it has a secondardy purpose of makeing the uploader think what they are doing (and if it has been taken from a website you can get some anoying derivative work stuff turning up).Geni 01:36, 20 June 2006 (UTC)

Sometimes considering the opposite is easier: suppose a cover is tagged with {{subst:nsd}}, and someone removes it because the source of the image is the cover of the album, as stated by the chosen license tag. Would any of you reinsert the tag? Why? Nevertheless from where he picked the image, if a quick search reveals that is definitively the cover of the album, and it has been previously published (in example, not leaked from a soon-to-be-released album), is he right in deleting the tag? I prefer to be on the safe side (tag an image for deletion and let someone at IFD determine if my argument was right nor not rather than letting it at Wikipedia), but in this case I am realizing that common sense indicates this approach is correct. -- ReyBrujo 01:56, 20 June 2006 (UTC)

When I come across an album cover tagged nsd, I untagged it instead of deleting it and add a simple statement such as "album cover of XXX by YYY". I reason that since the digitization of the image is irrelevant to copyright, a clear identification is sufficient (and more useful than a URL). Screenshots of all types are a similar situation. In any case, although sourcing the digitized version may not be critical, I'm not sure if it is worth complicating our written policies to specify that some types of images need explicit sources while others don't. ×Meegs 02:36, 20 June 2006 (UTC)

If I came across an album cover with the "no source" tag on it, I'd check to see whether the design of the cover is specifically discussed in the article. If not, I'd go ahead and delete it just on general principle, because the image was being used for decoration, not critical discussion, in violation of fair-use policy. User:Angr 05:51, 20 June 2006 (UTC)

I understand you reasoning, but it is quite conservative. You must object to the use of 99% of Category:Album covers then, most of which only accompany discussion about their albums' audio (at best — many are indisputably misused apart from any relevant commentary). My understanding is that because both the cover and audio of an album form a single publication, that the use of the cover, even solely for identification, is suitable for use in substantial commentary about the publication's other aspects. Book covers, the same. ×Meegs 14:37, 20 June 2006 (UTC)

Not really (the music and the album cover are covered under entirely separate copyrights). Album covers may be used for identification purposes; critical commentary of the album cover itself is unnecessary. (Note the text of {{albumcover}}.) We're displaying the image, in low-resolution form, to permit recognition of the album, not to grab people's attention or get them to buy our product, so our usage is a) transformative, b) don't use any more than is necessary for our purposes, and c) almost certainly wouldn't negatively affect the market for a vastly higher-res version, and would doubtless improve the market for the album if anything. As for the purposes of fair use, we're educational and the usage of the album is akin to news reporting. It seems to be pretty clear-cut fair use, and Wikipedia policy certainly allows it regardless, although I personally would be interested to see any case law you think has bearing. —Simetrical (talk • contribs) 00:57, 22 June 2006 (UTC)

Then you would be acting in a manner directly contradicted by a legal decision on the matter, which is explicit about specific discussion not being required in a comparable case:

Appellant asserts that each reproduced image should have been accompanied by comment or criticism related to the artistic nature of the image.

We disagree with Appellant’s limited interpretation of transformative use and we agree with the district court that DK’s actual use of each image is transformatively different from the original expressive purpose.

And:

In the instant case, DK’s purpose in using the copyrighted images at issue in its biography of the Grateful Dead is plainly different from the original purpose for which they were created. Originally, each of BGA’s images fulfilled the dual purposes of artistic expression and promotion. The posters were apparently widely distributed to generate public interest in the Grateful Dead and to convey information to a large number people about the band’s forthcoming concerts. In contrast, DK used each of BGA’s images as historical artifacts to document and represent the actual occurrence of Grateful Dead concert events featured on Illustrated Trip’s timeline.

In some instances, it is readily apparent that DK’s image display enhances the reader’s understanding of the biographical text. In other instances, the link between image and text is less obvious; nevertheless, the images still serve as historical artifacts graphically representing the fact of significant Grateful Dead concert events selected by the Illustrated Trip’s author for inclusion in the book’s timeline. We conclude that both types of uses fulfill DK’s transformative purpose of enhancing the biographical information in Illustrated Trip, a purpose separate and distinct from the original artistic and promotional purpose for which the images were created.

Graham v. Dorling Kindersley Limited (PDF)

Note the specific rejection of the need for discussion of each individual image and the recognition of the images in context illustrating the state at the time - as all album covers inherently do for illustrating the way the artists' work was presented at the time. In summary, every album cover image is going to be fair use in an article about the album and your removals are entirely inappropriate and contrary to the decisions of fair use law, which have clearly established that the uses are fair. A simple template correctly identifying the image as one from an album cover is sufficient to establish fair use in this case (and would be for posters too, of course, since that what the case specifically covered, and without needing to even go to trial because it was so obvious). Jamesday 01:03, 22 June 2006 (UTC)

Portal

Point 9 states

"Fair use images should be used only in the article namespace. Used outside article space, they are often enough not covered under the fair use doctrine. They should never be used on templates (including stub templates and navigation boxes) or on user pages. They should be linked, not inlined, from talk pages when they are the topic of discussion. This is because it is the policy of the Wikimedia Foundation to allow an unfree image only if no free alternative exists and only if it significantly improves the article it is included on. All other uses, even if legal under the fair use clauses of copyright law, should be avoided to keep the use of unfree images to a minimum. Exceptions can be made on a case-by-case basis if there is a broad consensus that doing so is necessary to the goal of creating a free encyclopedia (like the templates used as part of the Main Page)."

It says nothing about portals, only that they should not be used outside the article namespace. It says no talk pages, or templates, but not portal. It also says that it can be added if "This is because it is the policy of the Wikimedia Foundation to allow an unfree image only if no free alternative exists and only if it significantly improves the article it is included on." and "there is a broad consensus". Just wondering what it would take to be able to use fair use images under a portal like Portal:Warcraft

Well, portals are outside the article namespace, so even though they're not mentioned explicitly by name, they are excluded by point 9 of the policy. User:Angr 13:35, 20 June 2006 (UTC)

Not if consensus say that image X should be allowed on the portal space? Havok (T/C/c) 13:59, 20 June 2006 (UTC)

Yes, even then. Policy trumps consensus. User:Angr 14:06, 20 June 2006 (UTC)

Not really. IT's a tricky one. I don't think anyone has really looked into the issue. Part of the problem is the hudge range of quality shown in the portals.Geni 14:41, 20 June 2006 (UTC)

And besides, the policy can be changed. And if you read what I posted, it says that if consensus want a picture to be used, then they can use it. Havok (T/C/c) 14:47, 20 June 2006 (UTC)

And policy can be changed. On the behalf of WikiProject Stargate

I strongly doubt that the fair-use policy will be changed in such a way as to increase the usage of fair-use images. If the vast majority of editors of some article agreed that that article should not be subject to NPOV, it wouldn't matter. NPOV is policy and that outranks any consensus to the contrary. Fair use is the same: policy is not to use fair use images outside of article space, no matter how many editors of a given portal agree to make an exception. User:Angr 15:56, 20 June 2006 (UTC)

Then maybe that section should be removed from point nine? Stating that something rules over something regardles is all well and good, but seeing as it says in the policy, it should take presidence. It is after all policy. Havok (T/C/c) 16:01, 20 June 2006 (UTC)

And policy can be changed. On the behalf of WikiProject Stargate, I'd ask, why shouldn't we change the policy? I will ask here, in the hopes that the policy might be clarified, but I will also draft this as a proposal at Village pump. Lockesdonkey 20:59, 21 June 2006 (UTC)

Policy should not be changed here because portals are not themselves articles and should not be themselves trying to convey the kind of information that need photos for illustration. I believe you'll find that generally these photos would be used on portals for cosmetic purposes, and that puts us at legal risk. --Improv 21:47, 21 June 2006 (UTC)

Legal risk? What is the difference with article space and portal space? The licence would stay the same either way. And I don't think it says in the law "can only be used in articles, not something resembling but not being one." Havok (T/C/c) 21:50, 21 June 2006 (UTC)

An image is most unlikely to be used solely for decoration on a portal page, which are generally chronically short of space. They have historically been used on them primarily to illustrate a subject and aid recognition of it, both of which would be transformative fair use. You can use a factual image for comsmetic purposes if you like, since that's a transformative use of the original factual use, just as use of an artistic image for factual value is. See my quote above from Graham v. Dorling Kindersley Limited for a recent court decision on this matter of transformation. Jamesday 01:14, 22 June 2006 (UTC)

So on the portal I work on, adding a image to highlight a subject, as we do in "featured picture" is allowed? We have that section to draw attention to a subject we want people to read more about. Havok (T/C/c) 08:16, 22 June 2006 (UTC)

Should Fair Use only be applied when copyright-holder doesn't object?

Brad Patrick, also known as User:BradPatrick has made an executive decision that Fair Use images may not be used in a particular case, i.e. Carlson Twins (see extensive discussion on Talk:Carlson Twins) which seems to bring into question the usefulness of Fair Use in general, or to be more precise: it appears, at least from my current perspective, that this signals from the very apex of the Wikimedia Foundation (Patrick is interim Executive Director) that Fair Use only should be applied when no objections from copyright-holders are presented. In my opinion this invalidates the entire concept as the idea behind "Fair Use" would be explicitly that it comes to use exactly in those cases where a rationale for fair use can be presented even when copyright-holders DO object. Is Wikipedia caving in to pressure where it really shouldn't – where an important principle regarding freedom of the press should be upheld and protected? __meco 00:13, 21 June 2006 (UTC)

Fair use is not a blank check used to justify everything. How many times we have heard [insert famous Hollywood couple here] had sued [insert magazine here] for having published a photo the couple did not want to have published? Invert roles: suppose you own the copyright of a picture, you sell the rights to a magazine, and suddenly it pops up in every other magazine. If Fair use could be applied everytime, copyright would made no sense. reading the talk page (I haven't seen the picture) it appears as someone uploaded a picture that can be considered offensive against either the copyright owner or the twins themselves. Why? I can't say. You should trust an attorney to know what he is doing, the same way you trust when a physician adds something to an illness article that you had no idea about. As an extreme example, Playboy would have gone bankrupt years ago if anyone would be able to upload scannings from the magazine in a home-made encyclopedia claiming fair use. -- ReyBrujo 01:11, 21 June 2006 (UTC)

You don't seem to be addressing the issue of whether Fair Use was justified in this case. As for the "trust the attorney" argument this would be an appeal to authority where the authority has in fact omitted presenting an argument. That's kind of subservient, I'd say. __meco 08:53, 21 June 2006 (UTC)

Are the Carlson Twins still alive? If so, then almost any non-free photograph of them fails point #1 of Wikipedia:Fair use criteria. --Carnildo 01:44, 21 June 2006 (UTC)

I don't see a logical progression leading to that conclusion. Would you care to elaborate how you figure this out? __meco 08:35, 21 June 2006 (UTC)

Very simple, really. If they're still alive, it's possibe to take a picture of them, and thus it's possible to create a free-license replacement for a photo of them. --Carnildo 08:54, 21 June 2006 (UTC)

I see your point. I wonder if its valid for invalidating a Fair Use rationale for using one of their nude modeling pictures though. I'd be interested in evaluating any precedents to this line of reasoning. __meco 09:31, 21 June 2006 (UTC)

The question is somewhat complacted by the case of the O RLY? owl. The position of the fondation appears to be that they will remove the image unless there is a very very very good reaason not to.Geni 01:52, 21 June 2006 (UTC)

Will an article about a (or in this case two) nude model(s) which would otherwise not be illustrated, AND, where prerequisites for Fair Use have been met as per Wikipedia tradition and standards (and, of course, copyright law) constitute such a "very very very good reason" which you request? Or are biographical articles about famous nude models to be considered as second rate encyclopedic content which may not deserve the same attention with regards to protection of the right of free speech and quality control which apply to some other article, say about a quantum phycisist? It would make for a most interesting journey if the answer to this question would be "no". __meco 09:05, 21 June 2006 (UTC)

I can't speak for the wikimedia foundation.Geni 09:55, 21 June 2006 (UTC)

The problem is that no "fair use" rationale is certified as perfect unless you've already gone through the expensive procedure of getting sued for infringement. Generally speaking, it is in Wikipedia's best interests to avoid infringement suits (and bad karma) by cedeing to copyright holders unless there is 1. a very very high chance of winning in court (that is, if the suit is just frivolous), or 2. there is a strong moral or ethical reason to maintain that a certain use is "fair use" (which most of our use on here does not follow). Now it seems that Brad Patrick, as attorney for the Foundation, looked at it and decided that one or both of these was not worth the trouble. Again, since "fair use" is always mighty complicated, and lawyers can always see both sides of any claim, there are surely knowledgeable people who would claim it was fair, but since the Foundation is the one who would likely end up footing the legal bill, I think we should respect their lawyers' opinion on these things. In the case of 99.999% of the "fair use" claims on Wikipedia I don't think there is enough moral or ethical cause to worry if the Foundation decides it's not worth the issue (I don't think our online encyclopedia not having a naked photo of a model is a free speech issue worth worrying about, frankly). --Fastfission 02:31, 21 June 2006 (UTC)

The pitfalls of Fair Use legal procedings are obviously to be taken seriously by anyone who might be subject to such. However, they are hardly the principal issue in this thread. The issue, which I feel I shall have to reiterate as none of the five contributors to this discourse thus far (09:26, 21 June 2006 (UTC)) apart from me who raised it have chosen to address (which to me is somewhat perplexing), is whether Fair Use is a principle worth fighting for. You see, if it isn't, then logic would bid we abolish its practice here on the English language Wikipedia alltogether. At least that would be my conclusion based on values of intellectual integrity and legal and moral ethics. As for your trust in lawyers it comes in line with the argument to authority which I have commented upon elsewhere in this discussion. I will comment however that it is quite unsettling to me to see how people enter a debate about the principles of Fair Use without having the ability or want to try and form their own opinion about the actual case but instead make their final position one of "surely the expert must have had a good reason for deciding as he/she did". __meco 09:26, 21 June 2006 (UTC)

How can the pitfalls not be the principal issue of this thread? The question is what to do when a copyright holder objects and claims that a use is not "fair use". The answer is that there are some times when we should stick to our guns, some times that we shouldn't. There are battles worth fighting (and which we have a good chance of winning), and there are others which are not. Just because we choose when to assert "fair use" and when not to doesn't mean that we have to have our policies be one-sided either way. And yes, I trust the Foundation's lawyer to make legal decisions for the Foundation, but beyond that I know that even if I didn't trust him it wouldn't matter, since on their legal issues he is, and is paid to be, the one with the last word. There are times when I have disagreed on certain small interpretations but as I am not a lawyer myself I am willing to cede to someone who actually has expertise in the issue, especially someone who the Foundation (and Jimmy) trusts enough to actually make their hired legal counsel. In my mind the only "legal issues" that users should consider themselves to be responsible for are those which are not already clearly laid out by the Foundation legal people. It's their website, in the end, and their liability. --Fastfission 13:15, 21 June 2006 (UTC)

It's interesting to see this discussion. A while ago BradPatrick deleted a Carlson Twins image, and I asked him why (the deletion summary wasn't very detailed). He responded in an email stating that "If I remember correctly, someone was trying to justify the blatant copyright violation by saying 'it's available all over the internet already.' Notwithstanding your point about speedy deletion, it has not been my practice to subject what would be otherwise legal liability situations to community scrutiny." I'm under the impression that these images are being deleted because they are commercial products; that is, access to the images is being sold. Now, I have faith in BradPatrick... he has been a copyright lawyer for 25 years. I think he's quite qualified to make the determination whether Wikipedia will be better off defending a fair use claim or not. ~MDD 46 96 04:55, 21 June 2006 (UTC)

Since Brad Patrick was born in 1969 that must mean he was 12 years old when he began practicing copyright law. Other than that your submission completely omits addressing the principle of Fair Use (which was why I brought this issue here). __meco 08:44, 21 June 2006 (UTC)

Ah, I think I misinterpreted part of the email he sent me. Oh well. Anyways, I did address the principle of fair use--fair use claims are much weaker when commercial photos are being used (as opposed to photos from a news agency). ~MDD 46 96 15:36, 21 June 2006 (UTC)

I would like to point out that the picture that Brad Patrick deleted from Carlson Twins was not simply being used to show what they look like. If it were, it would indeed be possible to take another picture of them when they appear in public. Rather, the article discusses the significance of that particular picture and no other picture will do. User:Angr 11:53, 21 June 2006 (UTC)

For the avoidance of doubt, was it not the case that this picture became infamous because the subjects forced various websites to take it down by threatening legal action? This would indicate that the threat is rather more real than you would appear to want to believe. HTH HAND —Phil | Talk 12:36, 21 June 2006 (UTC)

This is a really simple situation that y'all are trying to make far more complicated than it is. Simply put, the encyclopedic value of that picture (very little) does not outweigh the risk entailed by having it on Wikipedia (significant). This is a situational judgment specific to this circumstance and should not be viewed as creating a precedent, except to the extent that a decision by the General Counsel of the Wikimedia Foundation as to copyright is binding upon and must be respected by all editors. Kelly Martin (talk) 12:15, 21 June 2006 (UTC)

It would be far preferable if it did create a precedent. What does and does not qualify as fair use under Wikimedia policy (quite apart from U.S. law) is extremely complicated and difficult to understand for most editors. I would far prefer the Foundation to come out and say "No fair use images on any Wikimedia project, period" than have the current state of affairs, which is "Image A qualifies as fair use and so can be used. Image B, which is being used in exactly the same way as Image A, may not be used because of the danger of Wikimedia being sued. But don't take that a precedent." User:Angr 12:27, 21 June 2006 (UTC)

I'm sorry that your preferences are not viable. However, if you want something of a rule, here's one you can have: "Unlicensed media may not be used to illustrate an article created for the purpose of having an article for which the media in question might otherwise be used as a illustration under the 'fair use' policy." I think this covers the Carlson Twins situation (quite clearly, the article was created to give reason to upload the image to Wikipedia, as is the case for most of our articles about porn stars and the like). Kelly Martin (talk) 12:41, 21 June 2006 (UTC)

(1) I don't see why my preferences are not viable. Many Wikipedias, including the second-largest one (de:), do quite nicely with no fair-use images at all. Why are they indispensable for the English version? (2) Your assumption that the article Carlson Twins was created in order to justify the use of the image is completely unfounded. The article was created on 29 January 2005. The first image wasn't added until 9 October 2005, and it was a different image from the one currently under discussion. The image currently under discussion wasn't added until 21 May 2006, nearly one and a third years after the article was created. User:Angr 13:02, 21 June 2006 (UTC)

This is not the first time that the Foundation has decided that a given claim for "fair use" was not strong enough or important enough to worth defending in the face of a threat of a lawsuit. The precedent is there. The logic is pretty simple. You seem to want it to be the case that if the Foundation decides that a given invocation of "fair use" is not strong enough, then we should stop using "fair use" altogether. That's logically fallacious -- just because one invocation is determined to be not worth fighting for (or not strong enough to guarantee the trouble) does not mean that it should never be invoked. --Fastfission 13:15, 21 June 2006 (UTC)

I assure you, the reason why I presented this case here was my personal opinion, one which I had noted others also share, that the case of this particular image illustrating this particular encyclopedic article had a strong Fair Use rationale. As has already become quite clear in this discussion thread the strong connection between the article (which noone yet has claimed to be off-base or unencyclopedic) and the image may not fully have been clear to Brad Patrick when he made his executive decision. I seem to read User:Angr somewhat differently than you do, interpreting his/her point being that when a strong contender for applying a Fair Use rationale is disallowed by the Foundation legal council / Executive Director, then there really isn't much room left for Fair Use application at Wikipedia at all. Which may, in the end, not be so bad. I come from the Norwegian Wikipedia, and we share the same practice as de: disallowing Fair Use alltogether, and I think can live without it under the circumstances. However, should it be allowable here there has to be an integrated approach to the phenomenon, which currently seems lacking. __meco 17:17, 21 June 2006 (UTC)

No, I want us to stop using "fair use" altogether because this is supposed to be a free content encyclopedia. However, if we are going to use "fair use" in spite of that goal, then I at least want the conditions of fair use to be clearly laid out so that an average non-lawyer editor can understand them. Most non-lawyers (including myself) are under the impression that "fair use" means "permission need not be asked for or granted". If this isn't the case after all, then WP:FU needs to make that point clearer. User:Angr 13:32, 21 June 2006 (UTC)

"Fair use" on some level is always going to be required, because much of this encyclopedia is in some way a derivative work (even taking quotes from something is only allowed, copyright-wise, under the "fair use" clause). Whether or not having "fair use" images on the encyclopedia makes it "non-free" or not is a question of some debate, one which I have myself raised many times. In the end, the opinion of Jimmy Wales seems to have consistently been that having them doesn't make it "non-free" since it is relatively easy for re-users to strip out "fair use" images if they don't think they would be "fair use" in the context they were being re-used in. I can see many different ways to view that, but in any case that seems to be what the decision about this has been, for now anyway. I suspect someday they will be stripped out completely as a liability, but that day is not yet upon us.

Yes, if something is legitimately "fair use" then permission need not be granted. But all of that hinges on whether something is legitimately "fair use", which is not always easy to decide. Since the only sure-fire way to decide that is in court, it is worth taking very seriously if someone threatens legal action. If there is ambiguity over how the court would rule, then it is probably not worth fighting for, in our case.

In any case, I agree that these things could probably be explained more clearly on here. --Fastfission 14:37, 21 June 2006 (UTC)

Notwithstanding being aged 13 years in an instant (-:, I think this thread points out *precisely* why the issue of Fair Use is one which needs to be carefully considered before jumping to craft an official policy, if there can really be one at all. Many gifted lawyers have spent entire careers addressing the application of fair use doctrine. It is one of the most hotly contested intellectual property battles out there right now. I am at pains to emphasize (a) it is a contrivance of law (b) it is largely alien to other legal systems (c) it is *not* the preferred explanation for usage of any copyrighted work.

This project is a free encyclopedia (I will confine my comments to WP here). The essence of a fair use is that no permission is required, thus I don't follow those above who are discussing permission in the same breath. In the image context, where copyright (and rampant infringement on the internet) have been a daily plague since .jpgs could be attached to email, why is it unreasonable to want to encourage free content in every way imaginable, while respecting the intellectual property rights of creators? In the case of the twins, Kelly Martin hit it on the head - this is an image looking for an excuse to be in WP, not an article about otherwise notables who need an illustration. That it seems rather difficult to replicate the photo with a truly free image is, well, too bad. Often I am nudged to remember that Wikipedia need not be built in a day. Perhaps the Carlsons are Wikipedians and would grace us with images that are free. We should all have respect for what the top photographers in the world accomplish with their images.--BradPatrick 14:08, 21 June 2006 (UTC)

The reason permission is being discussed in the same breath with fair-use is the impression that the reason the picture of the Carlson Twins was deleted is that their lawyer asked you to (effectively saying "you don't have permission to use it"). As I attempted to show with the diffs above, your statement "this is an image looking for an excuse to be in WP, not an article about otherwise notables who need an illustration" simply isn't true. The article existed for nine months with no image at all, and discussed this particular image before the image was added to the page. The image that has been deleted was first mentioned in the article on 2 October 2005, more than seven months before the image itself was actually added. (Note that the image added on 9 October 2005 was a different nude image of them, not the famous one with their penises almost touching.) User:Angr 14:25, 21 June 2006 (UTC)

"if there can really be one at all" -- The practical problem is that if we are going to allow copyrighted images on Wikipedia under the assumption that they are "fair use", then we have to have some guidelines. To my knowledge none of the officially-appointed legal people for the Foundation have ever really participated in that, at least not in recent memory. As a result the policy is a faux-law cobble at the moment, with a lot of room for interpretation and flexibility. Which isn't necessarily a bad thing (there is a lot of room for plausible assertion of good faith), but it is not suprising that things are so often a muddle. --Fastfission 14:37, 21 June 2006 (UTC)

If, as User:Angr and I contend, you have misapprehended some of the basic facts of this particular case and this case actually rather clearly qualifies as Fair Use, would you (even hypethetically speaking, should you still disagree with regards to your assessment of the facts), would you consider allowing a legal suit to be brought against the Wikimedia Foundation over Fair Use? As a follow-up I want to ask you if there are other considerations corroborating your current posture than what you have mentioned thus far? __meco 16:57, 21 June 2006 (UTC)

Why on earth would you want a legal suit brought against Wikipedia for a nude picture of two models? Do you really think that's the best use of Wikimedia's resources? Do you really think that the lack of such a picture is so onerous that Wikimedia should risk its neck over it? Here's my suggestion: set up some webspace of your own, host the picture with as much critical commentary as you want, then link to it from the Wikipedia article. Then you can deal with the legal issues on your own time and your own dollar. Neither Angr or you have really convinced me at all that this case "clearly qualifies as fair use" -- whether or not the article was created before the picture was added doesn't actually have much to do with the fair use status. --Fastfission 17:51, 21 June 2006 (UTC)

In order to keep from cluttering this page further, I have written up a history of the use of images in the Carlson Twins article and posted it at User:Angr/Carlson. I hope that page makes it clearer why in my opinion the most recently deleted picture from the Carlson Twins was the one image that has ever been used on the page that had the best fair-use claim, and why the reason for deletion was almost certainly not because the image wasn't really fair-use, but rather simply because the Twins or their lawyers demanded deletion. User:Angr 19:02, 21 June 2006 (UTC)

I think you may be missing the pivotal point of my reasoning. There lies a principle in this particular case. So when you use insinuating, overbearing and belittling terms like "want a legal suit brought against" and "a nude picture of two models" that seems to me rather like resorting to rhetorical means while dodging the actual issue. To me an encyclopedic article either IS or IS NOT. If it is, then we should guard it and nurture it with the same care and effort as we would any other article. If, on the other hand, we find it not worth caring for and protecting, then probably, it ought not be part of the encyclopedia at all. I apply probably here since there might just be a case of our biases getting the better of us, clouding our clear vision of the noumenal aspects of the matter. __meco 09:41, 22 June 2006 (UTC)

There are about a dozen images that I'd be willing to use in Wikipedia over the explicit objection of the copyright holder. This is not one of them. Most of the images have entire articles discussing the image. --Carnildo 19:24, 21 June 2006 (UTC)

Agreed with Carnildo and Brad Patrick. There are cases where we should argue for our fair use in defense of our ability to write a complete encyclopedia. This is not such a case. Generally I would never support claiming fighting over fair use for a non-historical image of living people, such images are too easy to replace. Come on Wikipedians, we must have a few paparazzi among us.--Gmaxwell 19:28, 21 June 2006 (UTC)

Would it change anything if we did? Paparazzi get sued for the pictures they take all the time. User:Angr 19:31, 21 June 2006 (UTC)

If we are going to base our actions and policies on ethically sound behavior I don't think appealing to the use of paparazzi photographs is where we should be exploring our alternatives. The image of the Carlson Twins was presumably created fully consentingly, not by illicitly intruding on someone who was in their private space. The fact that the twins since have gotten cold feet (presumably) about the future implications to their career and reputations really is something they alone should have to deal with. It must not place any obligations on society at large. That is, they may appeal to compassion and understanding (if cold feet are what this is basically about), however, using strong-arm tactics as done here seems morally effete and leaves us on the ethical high ground. __meco 09:09, 22 June 2006 (UTC)

It's the essence of fair use that no permission is required and that the copyright holder has no rights when the use is fair, since fair use is not part of the package of rights they are granted control over. You can make fair use even when there is specific objection from the copyright holder after you've asked for permission. Jamesday 00:22, 22 June 2006 (UTC)

True, but then you have to hope that your fair use assertion holds up in a court. It's bad enough that we use copyrighted material, there's certainly no need to do it when there's a distinct possibility that the fair use assertion might be challenged. --Rory096 05:32, 22 June 2006 (UTC)

the chance of a legal challenge is close to zero--there have been no such legal challenges to a nonprofit educational instution (like Wiki) in last 10+ years. Losing good information to baseless fear is not good policy. Rjensen 10:01, 22 June 2006 (UTC)

If they've already asked us to remove it, then that chance is real, however unlikely. This is a free encyclopaedia, information may be good, but it still should be free. It's not like it would be impossible to find a free image of them, either. --Rory096 04:22, 23 June 2006 (UTC)

How about we say that the picture violates WP:FUC #2 and put an end to this. ed g2s • talk 09:53, 22 June 2006 (UTC)

Well, you could say that, but it would be untruthful. The point is the image did comply with Wikipedia's fair use policy (which I incidentally find too lenient, but that's a different argument), but it was deleted anyway because the models (or their lawyers) apparently contacted Wikimedia Foundation and demanded the picture be removed. I'm not saying that that's necessarily a bad thing, merely that fair use (both as a legal construct and as a Wikipedia policy) had nothing to do with the deletion. User:Angr 10:30, 22 June 2006 (UTC)

Would it? Publishing modelling images surely hurts the resale value of the pictures. ed g2s • talk 21:59, 22 June 2006 (UTC)

Yes, but that's only one of four factors. If the image were no higher-resolution than necessary, the WMF would probably be able to win a case in court. Probably. But it would still cost a large amount of money, and keeping the image isn't worth the risk of suit. If this were an important picture/article, or the WMF had more money, the situation might be different. —Simetrical (talk • contribs) 04:19, 26 June 2006 (UTC)

BradPatrick has in fact succeeded in getting the twins to license one photo freely (double-licensed under GFDL and CC-BY-SA-2.5), and that photo is now being used in the article. That's fine as far as illustrating the article goes, but it still doesn't change the fact that an image with an unimpeachable fair-use claim was deleted at the request of the copyright holder. To avoid any future unpleasantnesses in this regard, I'm going to edit this page now to reflect the fact that this is possible. User:Angr 07:32, 23 June 2006 (UTC)

Graham v. Dorling Kindersley Limited

Graham v. Dorling Kindersley Limited (PDF) is an interesting recent case covering fair use. Highly recommended reading, since it specifically contradicts many of the most common objections that people make to fair use images here. The case itself is specifically about the use of reduced size posters, holding that their use is fair use in a history of the Grateful Dead. Jamesday 00:24, 22 June 2006 (UTC)

Good find. This quote is particularly important: "Appellant asserts that each reproduced image should have been accompanied by comment or criticism related to the artistic nature of the image. We disagree with Appellant’s limited interpretation of transformative use and we agree with the district court that DK’s actual use of each image is transformatively different from the original expressive purpose. . . . Originally, each of BGA’s images fulfilled the dual purposes of artistic expression and promotion. . . . In contrast, DK used each of BGA’s images as historical artifacts to document and represent the actual occurrence of Grateful Dead concert events featured on Illustrated Trip’s timeline." —Simetrical (talk • contribs) 01:17, 22 June 2006 (UTC)

While this is indeed interesting, please note that our unlicensed media policy does not, and is not intended to, exactly track the boundaries of fair use law of the United States or any other jurisdiction. Therefore, the mere fact that something is potentially "fair use" under any particular jurisdiction does not mean it is, or should be, permissible use of unlicensed media on Wikipedia. Kelly Martin (talk) 01:31, 22 June 2006 (UTC)

Kelly, I'm not sure how one is supposed to develop any sort of policy in respect to unlicensed media if we are meaning for it to be international. I have always thought we were working first within the guidelines of the U.S. (since that is the jurisdiction for our servers), with the hope that anything we use would have enough leeway to be also applicable in other contexts but again leaving that up for the re-user (since we can't possibly satisfy all national laws at once, many of which do not even have provisions for unlicensed use of copyrighted materials). --Fastfission 02:00, 22 June 2006 (UTC)

We must have international law considerations in mind as this is an international project. My point above, which you apparently failed to get, is that what American law allows or does not allow as fair use does not directly determine our unlicensed media use policy. Certainly our policy must not allow uses that are prohibited us under American fair use law, but there are myriad sound reasons -- avoidance of litigation, respect for the laws of other jurisdictions, maximization of the reusability of our content, preferencing free media to nonfree media -- why we do not want to push all the way to the boundary of American law in formulating our unlicensed media use policy. That the courts seem to have recently both expanded and clarified the boundaries of fair use under US law is interesting and important, but it does not necessarily force a change in our policy. Our unlicensed media policy is the confluence of three separate and competing tensions: first, our overriding desire to produce the best possible encyclopedia, second, our fervent desire to create that encyclopedia using free and reusable content, and, third, our obligation to comply with the law (and, included within that, our desire to avoid being embroiled in litigation). The first encourages us to use unlicensed media, the second discourages, and the third places hard, if ill-defined, limits. Kelly Martin (talk) 03:30, 22 June 2006 (UTC)

OK, but we have a long history now of Wikimedia permitting things which would only really be accepted under the U.S. fair use policy, so that's not exactly the issue at hand in this particular discussion that I can see. Time and time again Jimbo has said that in the case of fair use images it is up for the re-user to figure out where they stand on it on a case by case basis. This case allows clarifications for a number of points of our current policy in respects to its legal aspects, which is what I am trying to call attention to. I am not trying to say which should expand our use of unlicensed images in any way, and certainly not that we should ever prefer them to free content. --Fastfission 18:04, 23 June 2006 (UTC)

It is a very interesting case and I find it very encouraging. The most relevant aspects in respects to Wikipedia seem to me to be:

1. That moving a work into a very different context seems to be considered transformative (i.e. from "expressive use of images on concert posters" into a "biographical work"). Does moving an image into an "encyclopedic work" make it "transformatively different"? Under the court's argumentation here, almost certainly (accompanying the images with textual material and creating something substantially different as a whole than the original).

2. The Court takes the Kelly v. Arriba Soft Corp. and uses it to say that reduced size reproductions of posters (or photos, presumably) counts as using "less" of a work. That's a great thing to have ruled somewhere, because otherwise the Kelly v. Arriba Soft left open a lot of questions in that respect (i.e. since it was only for a search engine and only dealt with very small thumbnails). The court's ruling basically justifies our current policy in regards to size, that it should be the smallest size possible in order to permit the transformative purpose (in our case, to illustrate the article appropriately).

Pending discussion, this would seem to me to point towards two directions in policy: make more firm the "reduced size" requirement, and liberalizing some aspects on how images are used in articles (I would still rule against galleries and using them in lists for the most part, but their use in relevant articles accompanying relevant text would seem pretty assured to be transformative). Of course this is not the end of the show, but it does give more confidence in certain assertions in respect to policy. --Fastfission 02:00, 22 June 2006 (UTC)

It seems to me that what this justifies is things like album covers in album infoboxes. --Carnildo 02:19, 22 June 2006 (UTC)

Or any other situation where one is clearly moving something from one copyright and use context to another. (Album covers, book covers, fine art, screenshots, etc.). But yeah. Which is good, since that makes up the bulk of our fair use media. --Fastfission 18:04, 23 June 2006 (UTC)

Much of what people claim here as 'small' would print as large as the original work (we've seen this with magazine covers, for example), thats hardly small.. There have even be quite a few cases of 8+ megapixel 'fair use thumbnails'. In any case, Wikipedia's goal is to be a Free content encyclopedia. The complete rejection of fair use materials (for example contemporary works of art which we are discussing, historically impacting photographs, etc) would substantially reduce our effectiveness as an encyclopedia, thus a compromise was worth considering. This compromise is served by strict adherence to our current policy with those intentions in mind (The dedication to being both Free content and encyclopedia). That US law may actually be more permissive in certain cases is largely immaterial. Furthermore, it is highly desirable for even the english Wikipedia to be as legal as possible in as much of the world as possible. For example, the one laptop per child project will likely distribute a subset of english (along with simple english versions where available). We should avoid creating gratuitous incompatibilities without a compelling reason. For example, as Iran is not a party to any international copyright policies we are not legally obligated to respect their copyrights in the US. But Wikimedia policy is to do so anyways. --Gmaxwell 03:11, 22 June 2006 (UTC)

I know we want to be a free content encyclopedia and that means we should try to use only free sources. Nobody is debating that. This is about what we do since our policy is currently to allow fair use images as well, preferably in situations where there is no reasonable possibility of a "free" illustration.

I think we have a good guideline here for coming up with a reasonable qualitative definition of "small": as small as is needed to meet the needs of its use in the encyclopedia article. A magazine cover, for example, need not be any bigger than to give someone a reasonable idea of the cover itself (i.e. "So-and-so was on this cover of this magazine" doesn't require you to be able to see that they have dimples). If there are aspects of the cover which are worth drawing attention to (small details), they should be scanned in at higher resolution and cropped into separate images. The covers that TIME magazine post on their website are probably a good guideline for the max size: 400px wide is clear enough to see all of the text on the cover (including the date and publication info), but not large enough to worry about cutting into their market on selling reproductions of the covers or selling magazines in any way (an example I recently uploaded is here). --Fastfission 18:04, 23 June 2006 (UTC)

Why can't we use logos on University templates

Why isn't the fair use reasoning applicable when one uses the Cornell logo on a Cornell template. The Cornell template goes on the article, so what is the problemt. It's not like we are taking the logo and putting it on our user page, the template augments the article, and in the case of articles without the university logo, it shows the logo.--User:Cornell010 20:07, 22 June 2006 (UTC)

For reference: Template:Cornell -SCEhard T 20:27, 22 June 2006 (UTC)

It augments the article, sure, but the use there is still purely decorative (and not encyclopedic), which is not a good reason to invoke fair use. Personally I think it looks better without the image, but that's just an aesthetic opinion. --Fastfission 17:54, 23 June 2006 (UTC)

It's certainly appropriate in the main Cornell University. That's not decorative, it's informative. See also {{logo}}. Whether it deserves to be in every single Cornell-related article, well, maybe that's unnecessary. Keep it to a few, or just the main one. —Simetrical (talk • contribs) 04:23, 26 June 2006 (UTC)

Clarification of FUC#8

"The material must contribute significantly to the article (e.g. identify the subject of an article, or specifically illustrate relevant points or sections within the text) and must not serve a purely decorative purpose."

This section should be clarified with regards to recent disputes involving decorating lists (e.g. List of Puerto Ricans, List of Lost episodes), and in general cases where images are not accompanied by any significant discussion. Suggestions? ed g2s • talk 14:56, 23 June 2006 (UTC)

Yeah, it's a really hard line to draw here. Just thinking out loud: I think that the images should accompany discussion, but that discussion need not necessarily be about the image itself. That is, the Lost screenshots are certainly fine in their own articles about the show and the episodes themselves, but in the list their use is not at all "encyclopedic". I would probably argue that in this sense, lists themselves are not "encyclopedic" (this is not a call for removing them, because they certain help with navigating the encyclopedia, but that does not make them "encyclopedic" any more than, say, the "What links here" page is). I don't know if that is any more of a way towards clarification, though. I wonder what others think about this... --Fastfission 18:09, 23 June 2006 (UTC)

I think the text is clear, we require discussion and explicitly prohibit the use of fair use images for decoration.... The discussion should be about the image itself or at a minimum about the copyrighted work from which we are excerpting. Using an excerpt of lost in an article about lost is acceptable, using it in an article on an actor might be acceptable if we have text discussing their involvement in the show and the image us used to illustrate that discussion (the test should be if the discussion is less valuable or harder to understand without the image), and using a shot of lost to illustrate crib simply because a lost show included one incidentally would not be acceptable. As far as lists go, generally images get used in them as decoration or as navigational aids, not to facilitate a discussion... so, we shouldn't use fair use images on them. --Gmaxwell 19:41, 23 June 2006 (UTC)

The text is quite clear but given the arguments on "Lost" and the arguments we would have if all the images were removed from other lists, it apparently isn't clear enough. ed g2s • talk 21:46, 24 June 2006 (UTC)

I'd like to see a larger discussion about this. Jkelly 02:50, 25 June 2006 (UTC)

Maybe add "Nothing that allows the reader to better understand or more easily identify anything discussed in the article violates this criterion"? I believe that's the intent of the current criterion. —Simetrical (talk • contribs) 04:27, 26 June 2006 (UTC)

It's too broad, the current term uses the word 'significantly'. We should generally avoid fair use where it is only slightly beneficial as well. Of course exactly what qualifies as significantly is open to discussion, which is intended.. the word 'nothing' closes discussion. --Gmaxwell 04:37, 26 June 2006 (UTC)

"Images must either be the subject of significant discussion, or provide essential information that can't be provided by text or a free image. Any other use is considered decorative." Or something like that...? ed g2s • talk 10:49, 26 June 2006 (UTC)

Sounds good to me. That would also take care of all the unnecessary band logos that are being uploaded (see Gorillaz, Angels and Airwaves, etc.) --Fritz S. (Talk) 11:22, 26 June 2006 (UTC)

How about "Fair use images may only be used if an article or a section of an article would be incomprehensible without them, and no free alternative is available"? User:Angr 11:45, 26 June 2006 (UTC)

Might be a bit to strong. That would mean almost all covers of albums, books, magazines, etc. would have to go. --Fritz S. (Talk) 11:50, 26 June 2006 (UTC)

Which would be a very good thing indeed. User:Angr 12:26, 26 June 2006 (UTC)

I don't think the band logos shouldn't be uploaded. They contribute significantly to the reader's ability to identify the band and references to it, should he come across (for instance) someone wearing a T-shirt with the band's logo, or a graphical parody of the band's logo, or whatever. That's the point of allowing logos altogether. And while most of our readers won't have come across references to an average band, all of those who read the article on a given band must have come across some kind of reference to it previously, unless they used Special:Random. —Simetrical (talk • contribs) 01:04, 27 June 2006 (UTC)

I don't think significant is necessarily less broad than what I suggested, because it doesn't apply to the same phrase. I would say that anything that "allows the reader to better understand or more easily identify anything discussed in the article" does, ipso facto, "contribute significantly to the article". I would still go with that. —Simetrical (talk • contribs) 01:04, 27 June 2006 (UTC)

I think "incomprehensible without" is a little strong, as this could rule out valid uses, such as Tank Man. ed g2s • talk 14:28, 26 June 2006 (UTC)

Since that article is really about the images, not about the man, it would be incomprehensible without one of them. (I don't think having both is really necessary, though.) User:Angr 15:05, 26 June 2006 (UTC)

I wouldn't call the German article on it "incomprehensible". You can give someone quite a good understanding of the subject without seeing the actual picture, but the picture is definitely very important, and worth inclusion. ed g2s • talk 00:50, 27 June 2006 (UTC)

But you'll notice the German article is more about the man than about the image, whereas our article is more about the image than about the man. User:Angr 09:05, 27 June 2006 (UTC)

Google cache not a breach of copyright

I don't know if this court ruling on Google caches has been discussed previously. It seems to apply to Google, rather than Google users and their subsequent use of the cache, however, though aspects could be relevant to Wiki. Tyrenius 20:06, 23 June 2006 (UTC)

Hmm, I don't know. Most of it seems to be about automatic caching services, which Wikipedia (to my knowledge) has no analog to. --Fastfission 20:42, 23 June 2006 (UTC)

The actual case is available here. It's essentially irrelevant to us, because a) the rationale that was used only applies if the defendant was ignorant of the infringement, but b) we're largely immune from infringement claims that we're ignorant of under OCILLA anyway. —Simetrical (talk • contribs) 04:43, 26 June 2006 (UTC)

Recent edits to warning para

I don't think that what we really want to say is that the Foundation has the right to remove copyrighted content at any time. This may be more-or-less true, but it isn't a "fair use" issue, and makes it seem like the Foundation couldn't remove content with an expired copyright, which is a strange statement. We should also be careful with the whole "copyright infringement" sentence. Some people describe fair use/fair dealing as a defensible infringement, while others argue that fair use/fair dealing is a specific exemption from copyright, and either definition may make more sense depending on local legislation for the editor or reuser. I suspect that there are involved editors that take a strong position that one of these definitions is wrong. I'd like to encourage being very cautious about making it look like it is the Foundation that is taking a position on defining fair use/fair dealing or offering blanket advice. Jkelly 21:35, 24 June 2006 (UTC)

What I want it to say is that the Foundation can remove copyrighted material used under a fair-use claim at the request of the copyright holder, but that doing so doesn't mean the fair-use claim was bogus or too weak. User:Angr 23:06, 24 June 2006 (UTC)

That makes sense to me. I'll note that I'm not thrilled about the other material being cut for being "threatening" or for being "common sense". Jkelly 23:11, 24 June 2006 (UTC)

Neither am I, that's why I restored it. Saying "it could create legal liabilities" isn't threatening editors. User:Angr 23:20, 24 June 2006 (UTC)

Angr, it is not only the Foundation can remove images thus the text, even ignoring other possible flaws, is misleading at best. Our standing policy and practices, created by users and unopposed by the Foundation but not set by the foundation, reject a non-trivial amount material which we could legally host in the United States. If we're going to mention that we might remove things which are legal, we should not attribute that behavior purely to the Foundation. In my eyes, we should not bother mentioning the matter at all because the fact that an image is legal is only necessary but not sufficient to meet our requirements. Why bother writing more text which will only be needed by people who are confused because they didn't read the document? --Gmaxwell 23:25, 24 June 2006 (UTC)

(edit conflict) Please people, discuss before editing, that is the point of talk pages. Twelve changes in the last three hours is just too much, especially for a guideline. -- ReyBrujo 23:27, 24 June 2006 (UTC)

I think it is fine to have a little note on there that the WMF reserves the right to make the final judgment call on these things, just so people don't act so surprised when they occasionally do. I think it should be phrased in a way to imply 1. the finality of the arrangement (they have the last word), and 2. that it is the WMF making a decision about whether to keep the content, not necessarily connected with the specific issue of whether it might stand up as "fair use" in a court of law (the question of keeping fair use content on Wikipedia is more complicated than just that). --Fastfission 02:32, 25 June 2006 (UTC)

Gmaxwell, I know there are other reasons why material (especially images) can be removed besides the Foundation doing so via BradPatrick or WP:OFFICE. I myself have removed hundreds of images over the last few weeks without anyone from the Foundation asking me to: they were speediable under criterion I4. The fact that material can be removed because it violates Wikipedia policy should come as a surprise to no one. But it may well come as a surprise (and indeed has come a surprise in the recent past) to find that material can be deleted even though it doesn't violate Wikipedia policy. I don't understand why it's so controversial to add a sentence explaining that this can happen. User:Angr 06:34, 25 June 2006 (UTC)

Ah, Show me where material has been removed where it clearly does not violate policy and I'll show you an example of why some of our policy needs revision. --Gmaxwell 06:50, 25 June 2006 (UTC)

Please read User:Angr/Carlson for an essay on why the most recent image to be removed from Carlson Twins (Image:TheCarlsonTwins.jpg) was well within Wikipedia's fair-use doctrine, although the fair-use claims of the previous three images on that page were more tenuous. User:Angr 07:35, 25 June 2006 (UTC)

Our longstanding policy is to always replace fair use images with free images when we can, even what it is sometimes at the expense of some visual or informative quality. Although there were some interm steps along the way in the process of getting there, thats exactly what the end result is here. --Gmaxwell 08:01, 25 June 2006 (UTC)

The fair-use image was not deleted because a free-use image had been found. Nor was it deleted because its fair-use claim wasn't good enough. It was deleted at the copyright holder's request. (Later, the copyright holder agreed to license a different image under GFDL and CC-BY-SA, but that has no bearing on the current discussion.) User:Angr 08:06, 25 June 2006 (UTC)

It's poor argument style to simply dismiss a related point because it doesn't support your position. :) Without interaction with the subject of the article we would never have obtained the free images. I don't at all agree that it is unrelated. We replaced an unfree illustration of a living person with a free illustration, this seems like a win for free content, and completely normal from the perspective of Wikipedia policy. --Gmaxwell 08:23, 25 June 2006 (UTC)

It's extremely poor argument style to bring in an unrelated point because it does support your position. At the time the image was deleted, there was no free alternative. We didn't replace an unfree illustration with a free one. We deleted an unfree illustration with no expectation of there ever being a free one; the possibility of getting a free image was not the reason for the deletion, and it's disingenuous to pretend it was. User:Angr 08:39, 25 June 2006 (UTC)

It's unfair of you to speak for others. You didn't get us the free image, so please don't pretend to know everything that went into it. The fact that we *were* able to get a free image strongly supports the prior removal, since our use of fair use is intended to favor situations where no alternative is possible. --Gmaxwell 08:48, 25 June 2006 (UTC)

Fine, let the deleter speak for himself. His deletion summary was "deleted fair use image, see Talk:Carlson Twins#Fair use images (again) and otrs #2006060410007768". His comment on the talk page was, "As requested in an email to the Wikimedia Foundation, I've deleted the fair use image that was in this article. Though Wikipedia has a policy of not censoring content or images, serious concerns about copyright have been raised. Please do not replace this without clearance from the foundation's legal team." No mention of an upcoming free image. Hardly surprising since the unfree image was deleted on June 5 and Brad Patrick didn't announce the existence of the new, free image until June 22. I don't understand why you're trying so hard to deny that this image was deleted for one reason and one reason only: the copyright holder asked us to. There's nothing wrong with deleting an image because the copyright holder asked us to! But there is something wrong with doing so and then claiming there was a different reason for deletion. Neither User:Bookofjude nor Brad Patrick ever indicated that the deletion was due to anything other than copyright-holder request; why do you? User:Angr 09:15, 25 June 2006 (UTC)

Be less Angry Angr and take some time to read. What part of "serious concerns about copyright have been raised" indicated to you that it was believed our legal position on that image was solid? In the past we have told copyright holders to buzz off when our legal position looked solid, there is no evidence that anything has changed. You've been very aggressive with this whole subject and with your recent edits to the policy pages, it's becoming disruptive. Can you please tone it down some? --Gmaxwell 18:45, 25 June 2006 (UTC)

I'm neither angry nor aggressive about this. I think it's a good thing that unfree images are deleted rather than letting the Foundation get sued over them. No image is worth a lawsuit. But I cannot for the life of me understand why you are making up reasons ex post facto for this image to be have been deleted when the real reason it was deleted (the copyright holder saying "Delete it or I'll sue") is perfectly valid. Nor can I see why anyone would object to letting uploaders know that it is possible for their material to be deleted under these conditions. I would, however, be interested in being pointed to some specific instances of copyright holders being told "to buzz off when our legal position looked solid". User:Angr 20:46, 25 June 2006 (UTC)

I don't object to letting uploaders know that it's possible for someone elses copyrighted works (their material? shame on you :) ) to be deleted when Wikipedia doesn't feel comfortable with the copyright status of the work. The ability to remove questionable images is not limited to the Foundation, although the Foundation does get the final say. Thus I believe that any commentary we make should not create the confusion that the ability to do so is limited to the Foundation, and I said as much in my initial comment above. I think we should just notify uploaders that uploaded material may be deleted at any time, for any reason we (as in the community and the foundation) feel like, because that is the truth. I find your claim that you are not being agressive hard to swallow considering that you've been riding the edge of 3RR on Wikipedia:Fair_use for a long time span, and then when it was pointed out that you were being disruptive you brought your argument here. --Gmaxwell 21:19, 25 June 2006 (UTC)

"Their material" was of course shorthand for "the material they uploaded". If the Foundation isn't the only entity that can remove images that don't actually meet one of the speedy criteria or that haven't been listed at IFD, then I don't mind rewording the warning to an agentless passive like "Copyrighted material that is considered legally problematic can be removed at any time", although I would recommend avoiding your wording of "for any reason we feel like". And if you look through the above discussion you'll see that I have been discussing the issue on the talk page since two days before I made the edit in question. Also, I repeat my request to be pointed to some specific instances of copyright holders being told "to buzz off when our legal position looked solid". User:Angr 22:08, 25 June 2006 (UTC)

The salient point is not that the Foundation can overrule policy as such, but that a) it can overrule consensus interpretation of policy (Brad can just delete the image, where we would have had to bicker about it and take it to PUI or IFD), and b) its reasoning may be affected by pragmatic concerns at times. —Simetrical (talk • contribs) 04:46, 26 June 2006 (UTC)

nogallery

The following guideline should be added, based on current policy (for starters, no fair use outside main namespace):

"Any category which contains mainly unfree media should use the __NOGALLERY__ keyword."

ed g2s • talk 14:32, 26 June 2006 (UTC)

Would this also apply to all the sub-categories of Category:Unfree images? Because I actually find the galleries there quite useful to spot things like CSD I7 images (images with FU tags whose content is unrelated to that described in the tag). --Fritz S. (Talk) 14:48, 26 June 2006 (UTC)

It's now applied on all the Fair use* categories. I think a problem is that there are cats which contain a mixture of fair use tagged and non-fair use tagged. I think the best step would be to only place it on cats which contain mostly fair use images, or are intended to contain fair use images and permit the limited violation in other cases until a better technical solution is developed. Thoughts? --Gmaxwell 15:13, 26 June 2006 (UTC)

This policy page is not your political soap box.

You might believe that all content should be free. Thats great. Or perhaps you might believe that Wikipedia shouldn't be dedicated to Free Content, and I must strongly disagree but you're still welcome to think it. What is *NOT* welcome is the abuse of the edit button on this policy page as a political football. It is not acceptable to edit war in text which neutralizes this policy [2] [3] [4] [5]. As far as I'm concerned the addition of text which claims that any image is fair use on Wikipedia is functionally equivalent to blanking this page, which quite carefully explains what we will and will not accept. Thus, further edit waring to this end should be regarded as equivalent to page blanking vandalism. --Gmaxwell 15:41, 26 June 2006 (UTC)

No content dispute is vandalism, not even if the content in question is the content of a guideline page. But edit-warring over a paragraph that fundamentally changes the content of a guideline page is Very Bad: if a change is disputed, the version that's stayed there for ages should remain until the dispute is sorted out. (This, however, is factually correct even if a bit unclear, and doesn't deserve to be lumped in with the other three; there's not a snowball's chance in hell that anyone will bother suing individuals over small-scale infringement, the WMF can't be sued for just hosting the content, and by your own acknowledgement the fair-use policy isn't rigidly tied to the possibility of lawsuits anyway.) —Simetrical (talk • contribs) 01:10, 27 June 2006 (UTC)

what is critical commentary? what is transformative use? Wiki qualifies

I suggest saying:

Note that all Wikipedia articles are supposed to be critical commentary and analysis of the topic. Unless an article is extremely thin it qualifies as critical commentary. Note that use in Wikipedia articles is a "transformative use" in every case (unless the image comes from a competing online encyclopedia.)

This is an encyclopedia, and unless the source is another encyclopedia, we are engaging in a transformative exercise. That is we are doing something different with the material, which argues for fair use. From my observation (of history articles) the vast majority are critical commentary rather than mere duplication of information, and thus most articles should qualify as "critical commentary." Rjensen 15:42, 26 June 2006 (UTC)

Sorry sir, you're off in space. For example, it would clearly not be critical commentary to use the cover of an album which featured a rose as an illustration on the article on roses, of course countless other examples can be made. We permit fair use where it's used as part of critical commentary, but no blanket statement can be made. Wikipedia is indeed an encyclopedia, a reference work, it's also a news outlet, and based on the proceedings of some recent newsfolk conferences, news people very much consider us a part of their overall competition. Furthermore, a good Wikipedia article is entertaining, and in some cases can be easily argued to replace the work we copy from, at least when coupled with excessive 'fair use'. There are simply too many places where Wikipedia is in direct or indirect competition with providers of copyrighted content that any such blanket could work as well. Finally, your edits imply to me at least that the legal aspect of copyright is the only material limitation on our use of unlicensed copyrighted works. It's not. Wikipedia is The Free Encyclopedia. --Gmaxwell 15:49, 26 June 2006 (UTC)

Nonsense: we are an encyclopedia. We do not compete with CBS news; very few people drop their subscription to the NY Times to get their news from us. As for entertainment we do not compete in the entertainment market either--TV, movies, records, rock concerts???? Economists have defined "competition" very carefully and the idea that a movie theatre will be injured because people stay home to read Wiki will not carry much weight once you read some economics. Rjensen 15:55, 26 June 2006 (UTC)

Look, what are you arguing? I could get into some stupid argument where we cite caselaw, and you'd lose it... But thats not relevant: Because the purpose of Wikipedia is to consist of free content, and because the foundation that operates wikipedia is chartered to produce free content we don't accept willy nilly use of fair use in any case, even where it would be legal. This isn't going to change, certainly not by you being anti-social in your editing and argument practices here. We already permit fair use where it is necessary to illustrate commentary on an article where our encyclopedic mission could not be completed without it. So what do you hope to accomplish? --Gmaxwell 16:04, 26 June 2006 (UTC)

I don't really buy that argument. Anyone who is in a non-US jurisdiction (unless they have closely analogous laws) or who wishes to repurpose our images will have to discard all our legally-used fair-use images regardless of whether they were necessary for the article; anyone who is in a US or similar jurisdiction and wants to just copy our articles with images will be able to keep our legally-used fair-use images regardless of whether they were necessary for the article. Therefore, how much we need to use the image is not relevant to the encyclopedia's reusability as a whole, except insofar as it affects the legality of our use. —Simetrical (talk • contribs) 01:49, 27 June 2006 (UTC)

Eh, If someone downstream wants to repurpose it doesn't matter if the laws are similar, claims of fair use quite will would not apply, and would have to be reconsidered on a case by case basis for their use. Since our purpose is to create content that people downstream can repurpose without such complexity we demand free content... However because there are some articles which can simply not be illustrated by free content (until some copyrights lapse, if ever) we permit fair use in those cases. In theory if enWikipedia did not permit fair use the result would look identical to our current Wikipedia with the fair use images simply removed. Today that isn't entirely the case because there are many instances of fair use being abused where free images might otherwise be if we permitted no fair use at all, but it time that will be fixed. --Gmaxwell 14:23, 28 June 2006 (UTC)

Right, the encyclopedia would be freer if we had no fair-use images. But once we have some, adding more doesn't make the encyclopedia more unfree. Either way: if it's repurposed or a different country, FU images have to be discarded, otherwise they can be kept, no matter how many. —Simetrical (talk • contribs) 23:18, 28 June 2006 (UTC)

You're casting transformation too loosely. If we use an image for identification of X, and it was created for identification of X, our use is nontransformative. If we use an image for commentary on X, and it was created for commentary on X, our use is nontransformative. If we use an image for general illustration of X, and it was created for general illustration of X, our use is nontransformative. An image taken from a guidebook to illustrate a city cannot be used by us to illustrate the city; a screenshot taken to illustrate a game cannot be used by us to illustrate the game.

More important is the fact that you're focusing too much on the first factor. It's the most important, yes, but the other three factors can outweigh it. If the work doesn't substantially advance our goal of informing our readers (such as many similar illustrations of a single copyrighted character), then it can't be fair use. If our copy of a work substantially supersedes the market for a work (say because there's a market for low-quality copies of the work, like for cell phone backgrounds in Perfect 10 v. Google), that could potentially outweigh the transformation factor if combined with the second, third, or partially the first. —Simetrical (talk • contribs) 01:49, 27 June 2006 (UTC)

Not at all. Copyrisht is about the full content of a piece. Our full content is always encyclopedia. If the original usage is not an encyclopedia then we have transformed it. Rjensen 07:12, 27 June 2006 (UTC)

That's just not true, by the case law. Transformation is "add[ing] something new, with a further purpose or different character, altering the first with new expression, meaning, or message" (Campbell v. Acuff-Rose). If we use a picture of a rose from a news report on roses, or in a naturists' guide to roses, to illustrate Rose, we do not give the borrowed work a different character, or alter it with new expression, meaning, or message. In both uses the character is the same: we seek to show the reader what a rose looks like. It has no further meaning, no message beyond that. Seeking to show the reader what a rose looks like is not in any way different whether an encyclopedia does it or a news report does it.

You still don't address the other three factors. Like commerciality, transformation "is only one element of the first factor enquiry into its purpose and character" (ibid.). —Simetrical (talk • contribs) 23:18, 28 June 2006 (UTC)

This is a false statement: "If the work doesn't substantially advance our goal of informing our readers (such as many similar illustrations of a single copyrighted character), then it can't be fair use." Indeed an illustration may be poorly chosen --it may even spoil the article, for example by showing the wrong building--but there has never been an argument to the effect that poor shoice is one of the 4 legal factors. Rjensen 07:19, 27 June 2006 (UTC)

Rjensen, A question... are you an attorney? --Gmaxwell 14:23, 28 June 2006 (UTC)

Are you? I'm not. —Simetrical (talk • contribs) 23:18, 28 June 2006 (UTC)

Nothing that doesn't advance the sort of thing in the preamble to 17 USC § 107—"such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research"—can be fair use. In particular, if an image does not inform the reader but only makes the article prettier, that clearly does not serve the purposes of the statute. —Simetrical (talk • contribs) 23:18, 28 June 2006 (UTC)

Defining borderline case

Image:10040550.jpg, a promotional photo from All in the Family is used, in addition to All in the Family, in the article 1970s. There is some discussion and commentary with regards to the show's iconic reflection of this decade. However, when conferring with the section Wikipedia:Fair_use#Images I would conjecture a stark contrast with the spirit of the descriptive passage on photographs of art works (there is no mention for screenshots that could help settle the inquiry): "Paintings and other works of visual art. For critical commentary, including images illustrative of a particular technique or school." Had this passage read "...illustrative of a particular technique, school or period", howeverm I would have surmised a stark parallell instead.

Am I correct in perceiving here where the line is drawn, i.e. had the promo image from the TV series instead been a work of art of a style that was prominent in that period, it would not pass the Fair Use test? Otherwise, should the cited text be appended as I indicate above? __meco 17:52, 27 June 2006 (UTC)

If a work can be dated to a period by visual inspection, that implies that there was some technique/school/style that was prevalent in the period, and that the image could be used as illustration of that technique/school/style. However, typically something used as fair use as illustration of a technique/school/style should only be used in an article discussing the technique/school/style; are you going to add a discussion about the period's style to the show's article? —Simetrical (talk • contribs) 23:25, 28 June 2006 (UTC)

I found it difficult putting this issue into words, and I realize I haven't succeeded in making my point. All the more since noone else has addressed my question either. It's about illustrating social trends of a time period – in this case the 1970s – using a Fair Use image from a television show that was iconic to the zeitgeist of that decade. I will try and elaborate more if need be. __meco 15:21, 30 June 2006 (UTC)

Protection

Due to the edit wars of the past few days, I've protected this page for a short while to let people calm down. Any uninvolved sysop who thinks this should be unprotected should go ahead and do so, and I won't revert or consider it a wheel war. Stifle (talk) 11:00, 28 June 2006 (UTC)

Since there hadn't been any real edit wars for close to about two days, I'm not sure this was wholly necessary. (Postdlf and Abu badali seemed to have worked out their dispute already, and it was an extremely minor point anyway.) —Simetrical (talk • contribs) 23:28, 28 June 2006 (UTC)

Under that assumption, I've unprotected the page. Like Stifle above, if circumstances change, I won't consider anyone reprotecting the page to be wheel warring. JYolkowski // talk 23:24, 29 June 2006 (UTC)

Incorrect rule on verbatim text

Under "text" this ironclad rule for fair use appears: . Text must be used verbatim: any alterations must be clearly marked as an ellipsis ([...]) or insertion ([added text]) or change of emphasis (emphasis added). This did not come from fair use copyright law--it is a mystery what the editor who inserted it had in mind. It should be deleted. Fact is Wiki -- like every other reference book, is to a large extent comprised of paraphrased materials taken from other sources. Rjensen 03:11, 29 June 2006 (UTC)

This rule is not talking about paraphrased text, which is perfectly acceptable. It is talking about a section of text which is quoted. It is saying that direct quotation should not be altered, but should be quoted as it appears in the original source, except where clearly marked in the ways given. Tyrenius 03:17, 29 June 2006 (UTC)

The Text rule should read: Text may be paraphrased or rewritten. However if text is marked as a quotation, the quotation should be exact with any alterations clearly marked as an ellipsis ([...]) or insertion ([added text]) or change of emphasis (emphasis added). Rjensen 03:24, 29 June 2006 (UTC)

Agreed. That would clear out the deficiency of the current wording. __meco 07:59, 29 June 2006 (UTC)

If the text is completely rewritten then we're not talking about fair use anymore, so putting it under our fair use rules is just adding further confusion to the matter. ed g2s • talk 18:19, 30 June 2006 (UTC)