Talk:Archive:Fair Use Policy, Media

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Although the middle of the doctrine is murky (in that there are a lot of unresolved questions) there are certainly some very clearly delineated instances of fair use. There is no question, for example, that quoting five or six lines of text from a novel in order to make a point about the author's writing style falls squarely within the protection of the doctrine.

There is no legal requirement that a person claiming fair use needs to first attempt to obtain permission from the copyright owner. That is probably good policy if you anticipate that some copyright owners will release their works into the public domain. I would be a bit leery about the possibility that a copyright owner may wish to set conditions on the use of their work, but that's for another policy page I suppose.

Finally, I'm a big fan of the public domain, and would like to remind people that anything published in the U.S. before 1923 is in the public domain, as is any work for which the author died before (at the moment) 1936. This applies equally to photographs. There are just enormous quantities of illustrative images in the public domain.

Cheers, Brian Dean Abramson 05:07, 8 May 2007 (CDT)

I don't understand what you're saying in the last paragraph. First you say that anything published in the U.S. before 1923 is PD. Ie, "My Blue Heaven," let's say, a novel by Bill Smith, and published by Harpers in 1916. Okay, that's clear enough. But then we know that Bill Smith died in 1934. And before he died, in 1933, he published another novel, "My Purple Hell." You seem to be saying that the second book is *also* in PD, even though it was published after 1923. I must be misinterpreting what you're saying, somehow.... Hayford Peirce 12:52, 31 May 2007 (CDT)
Both are in the public domain. Anything published before 1923 is PD, even if the author is still alive today. For things published after 1923, we have to look to the date of the author's death. If the author died more than 70 years ago, than everything that author has ever published falls into the public domain. Cheers! Brian Dean Abramson 20:39, 2 June 2007 (CDT)


Pre-1923 items are public domain, no doubt, if created in the US or its territories (in the UK, photographs and artwork are protected up to 70 years from the death of the artist/photographer, and older works may still be protected). Yet even with pre-1923 items, there are possible issues under either property or trademark law which could protect some images; "derivative" images are among these (photos of artwork, for example).

I'm unclear as to what "Libre Substitute" and "Libre media" mean.

"Fair use" will be qualified, first and foremost, by whether or not CZ has a commercial-use-allowable license. If we do, we will have to police fair use far more diligently, and define it far more narrowly, since noncommercial entities generally (but not always) have a broader claim to it.

Secondly, what percentage of the "work" is being presented on CZ -- this applies mostly to text, rather than images, music, etc. If it's less than 10% of the complete work, or only quoted briefly in order to evaluate or characterize the full work, that augurs for fair use.

With images from a work still under copyright, the matter gets more complex. You can look at Wikipedia's policy, for instance, which offers arguments for things like a single frame of a film, an "event poster," or a book cover. These are all gray areas, and WP might someday get in trouble with them.

You have to look at percentage of complete work, possible damage to marketability, use and context, and for-profit or nonprofit status of entity -- you really need legal advice. This, or so I assume, is why fair-use claims have been discouraged on CZ. Russell Potter 08:59, 8 May 2007 (CDT)

I think a significant part of the reason that fair use claims are discouraged is for potential downstream users - we want people to be able to copy info (including images) straight out of our resource, and use them freely under the GFDL. The freer the image, the better for that purpose. I analysed images for fair use in Wikipedia discussions dozens of times, and have occasionally looked up cases for particularly sticky questions. I think Wikipedia's policy is overly conservative actually. WP and CZ are both non-profit organizations which exist solely for educational purposes, and that puts a big, heavy thumb on the fair use scale in our favor. The other factors will all rely on the nature of the work itself, how much of it we use, and whether there is a market for use of the image that we might substitute, but there are many circumstances (such as screenshots from broadcasts and covers of books/DVDs/albums) where market impact will be negligible and our use will necessarily be much cropped or scaled down from the original. Brian Dean Abramson 13:09, 8 May 2007 (CDT)

Thanks for these comments, Russ and Brain.

I am wondering if you two (and other interested persons) would be willing to hammer away at the policy draft here. I think one area we need to have clarity over, by numerous carefully selected examples, is what DOES and DOES NOT qualify as fair use, as that would likely be encountered here at CZ.

Also, I understand that whenever documented efforts to seek the copyright holder have first been taken, basically no court will award damages to the copyright holder but only allow a fair fee. To me, that seems it may be a precondition we might wish to incorporate into policy, except on what would clearly be fair use.

I also wonder: for CZ articles that would be under a non-commercial license, how much better does that bode for fair use? Some have claimed to me that is irrelevant, but I am not ready to buy the argument since one of the fair use prongs includes whether the work was commercial in nature. Then again, just because CZ would be licensed with a commercial license, does that make use fair use images on CZ itself commercial?

I am thinking, just thinking, it might be a good policy direction to take to have certain types of fair use simply be clear-cut: make your fair use claim with proper rationale and that is that. But with others that may be more "gray", it might be good to first place the condition of a frustrated permission attempt before allowing it.

I have more thoughts but today has been an energy-taxing day and blessed sleep is calling....

Stephen Ewen 02:00, 9 May 2007 (CDT)

I will be able to work on it substantively this weekend. Regards, Brian Dean Abramson 12:14, 9 May 2007 (CDT)

SE's holding place for stuff

Excellent policy draft

This is a very strong policy draft -- kudos to Stephen and others for putting it together!! Russell Potter 17:43, 25 May 2007 (CDT)

Very well done, indeed. We'll need to define "slavish copy" somewhere.--Joe Quick (Talk) 21:25, 25 May 2007 (CDT)

Thanks, guys. This has been a long time in the making. Joe, I found a way to just eliminate the language but achieve the same end. One area that yet needs to be added is sound and video. Stephen Ewen 04:50, 26 May 2007 (CDT)
Funny you sould mention sound and video -- I'd been wpndering, is there a way to add sound to CZ? I was thinking, for instance, of having some recordings I've made myself, such as reading aloud a brief selection of the Canterbury Tales in Middle English, much better for the Chaucer page than anything you could do in print or with the phonetic alphabet, but when I go to the upload page it doesn't seem equipped to handle mp3 or wav formats ... ...said Russell Potter (talk) (Please sign your talk page posts by simply adding four tildes, ~~~~.)
It just takes the right level of access and all of a about 30 seconds in this case. However, there is also a nice new beta feature we could add. See MediaWiki Player Beta. Stephen Ewen 11:59, 26 May 2007 (CDT)
Hey, that's a cool tool, thanks for letting us know about it! The links reminds me that perhaps we should then talk about media formats -- WP seems to favor Ogg, as it's opensource, but I would tend to favor mp3 or mp4, or something else that I can export to via Quicktime, which is the tool I use. In any case, I would definitely be in favor of adding this tool, perhaps on a trial basis, and identifying a few articles which could use it. Russell Potter

Here's a nice one. :-) I looked at the source stuff and seems to only support OGG audio and video formats. I prefer MP3, too, because its just so darned versatile, but I use FLAC for my own CD archives. Stephen Ewen 12:35, 26 May 2007 (CDT)

Sites like YouTube and Metacafe convert files automatically when you upload them. It seems like we should be able to do something similar so that people can upload files in whatever format is most convenient and still have them show up in a standardized format on the site. --Joe Quick (Talk) 13:20, 26 May 2007 (CDT)
That would be very sweet indeed. Wonder what kind of tech magic would be needed for that? ---Stephen Ewen 17:00, 26 May 2007 (CDT)
Dunno. When it comes to tech stuff, I usually know that but am generally clueless about how. I've got some friends who can probably fill me in though; I'll ask around a bit. --Joe Quick (Talk) 17:41, 26 May 2007 (CDT)

Hmm. Out of curiosity I googled a few things, found this: and - can't be too tough. Stephen Ewen 18:31, 26 May 2007 (CDT)

Promotional photos

"Promotional photos of famous persons or places things may not be used under fair use as the lead image for an article about such persons or places or things."

Why? This is counter-intuitive to me. --Joe Quick (Talk) 14:39, 26 May 2007 (CDT)

"May not be used under fair use as the lead image". There may be good counter-arguments. I've certainly heard what must be most of them. Depicting the person as they wish to be depicted is certainly the strongest. Bottom line: I am thinking it is generally easy to get permission to use them, so there is really no good reason to go to fair use concerning them. Take Image:Onslow_Beach_Camp_Lejeune.jpg. One email, next day done. Won't be that easy all the time, I realize. Moreover, take the instance of a famous person of controversy--take Paris Hilton, since she is in the news recently. Using a promotional photo of her within an article that discusses her mud seems murky water to me. It would not be promoting her, per se. "What is fair use" in a lot of ways boils down to "what is non-offensive use?" to the copyright holder. ---Stephen Ewen 16:59, 26 May 2007 (CDT)

Image:AnnCoulter01.jpg is an interesting instance. Go to the the source page and it appears like it is an open invitation to use the photos. One finds no copyright or usage information. Some of the photos are marked and some are not. Some could be nothing other than fair use images, as used in the context of the "photo gallery". Scour the links at the site: there is no contact information for anyone. But Google with "contact Ann Coulter" and a hidden page turns up: There is an email address. And oops, down at the bottom: All content copyright 2000 - 2004 Stephen Ewen 22:24, 27 May 2007 (CDT)

Reference to free images

We should make some effort to point editors to sources of free images, such as Wikimedia Commons and Public Domain (Wikimedia has a project page of Public domain image resources which we may as well copy over here). Cheers! Brian Dean Abramson 01:04, 29 May 2007 (CDT)

Absolutely! I'd like to create extensive help pages for this, with lots of categorized links and brief descriptions. :-) --Stephen Ewen 03:01, 29 May 2007 (CDT)

not offensive

"what is 'fair use'" is helpfully thought of as "what use is not offensive to the copyright holder?"

At least in the US, this has nothing whatsoever to do with fair use. The tests for fair use are the tests in the copyright act, of purpose and type of material and quantity relative to the original and effect on economic rights. There are no others, except the special fair use provisions for libraries and schools and preservation and so on, which do not directly affect us, and the provision for performances, which also generally do not.
What this does affect is the likelihood that the copyright holder will release rights to us if asked, and that is another matter. But if a photo or a logo is used in an objective article which has an effect that the copyright holder thinks favorable, it is equally fair if the article will be considered unfavorable. In fact, one use which gets favorable treatment is considering type of use is satire, which the copyright holder is unlikely to view as favorable. (not that this will apply except in unusual instances, but it illustrates the principle.) DavidGoodman 19:09, 29 May 2007 (CDT)
Well that is certainly true, especially as regards an offensive parody still could be fair use. What I should have said is "Avoiding trouble over a 'fair use' claim is helpfully thought of as, how can I avoid needlessly offending the copyright holder?" In that regard, I think neutral articles would go a long way in that regard. But I've just removed the language altogether. I think it is self-evidently clear why it is best that neutrality in CZ articles go along with fair use here. Stephen Ewen 01:47, 30 May 2007 (CDT)

No fair use in commonwealth countries

As far as I understand, "fair use" is a strictly US law concept. Comnmonwealth countries (Australia, Canada, the UK & others) have the concept of "fair dealing" which I believe is much more restrictive. See the Canadian Intellectual Property Office Web site for a description. What I believe it comes down to is that we simply can't use images under the "fair dealing" provisions. Of course, since the servers are in the US, the US law applies. But the notice that it "constitutes fair use under UK copyright law" in the template should be removed. Luigi Zanasi 10:33, 31 May 2007 (CDT)

It is fixed. Stephen Ewen 11:55, 31 May 2007 (CDT)

drop the fearful defensiveness and surrender of rights

The original draft seems to be motivated by fears of copyright lawsuits or some such. There are no such lawsuits --not for for Wikipedia, for example, or for other non profit online media so we can dispense with that premise and all the super-precautions. For example, askinmg people NOT to use fair use is an unfair imposition on experts and scholars who use fair use every day and have not been overruled by the courts. Richard Jensen 03:56, 27 August 2007 (CDT)

Screenshots of free software

If somebody took a screenshot (themselves) of an open source GPL license program, would that have to be considered fair use? At WP, a lot of screenshots of free software are released under open licenses rather than fair use, such as: [1], [2] and [3]. Oliver Smith 04:28, 9 September 2007 (CDT)

Wikipedia now say that screenshots count as derivative works, so they are also GFDL. Oliver Smith 17:39, 28 October 2007 (CDT)
Gosh, sorry I never saw this till now. What you were told at WP is correct in this case. Stephen Ewen 18:17, 28 October 2007 (CDT)

page locked - template needs moved

Page is locked - I can't move the template to the bottom of the page. --Todd Coles 12:23, 24 January 2008 (CST)