User:Rama/Fair use

This page regroups explanations that I keep giving again, and again, and again. If you still have questions after reading this, they are welcome on my talk page.

Wikipedia en: makes use of the so-called "fair use" provisions allowed in US law. Fair use is akin to right of quotation, but for images. It can be used in precise, very limited circumstances; in most circumstances, it cannot be invoked at all.

Fair use is often invoked on Wikipedia as a shortcut that effectively allows using copyrighted work, like a "take-what-you-want-anyway" jocker. This has all the advantages of theft over honest toil, but it is illegal (not only on Wikipedia, but in "real life"). A "jocker statement" can never be saved, as the image is inherently not suitable for Fair Use claims.

When Fair use works

Fair use is akin to a right of quotation, meaning that if a very precise image is being discussed in an article, it might be opportune to display it as a Fair Use insert.

For instance, the Uzbin Valley ambush article mentions a newspaper article that was the core of a controversy in that context. The paragraph describing the magazine photographs is, appropriately, flanked by a Fair Use insert of that very precise image.

And that's about it.

Per policy, Wikipedia en: also tolerates Fair Use claims for cinema posters, book jackets, DVD covers and such.

When Fair use does not work

Fair Use is not just a way not to do the work, but a way in which an image that cannot possibly be replaced by a Free alternative can be displayed, notably for critical discussion.

A number of rules of the thumb can help to distinguish whether one is legitimately claiming a work as Fair Use, or if one has let himself be overwhelmed by the task at hand:

• Is the image famous, and is there critical discussion about it in the article?

If not, it is a "jocker" fair use.

• If the image was slightly different, would that matter?

by "slightly different", imagine for instance cropping the image, inverting the right and left, colourising (or droping the colour channels), etc.

If not, it is a "jocker" fair use.

• Would the next image of a press kit do about as well?

If yes, it is a "jocker" fair use.

Fair Use and its criterias

The criterias for Fair Use are necessary criterias; they are not sufficient criteras. Hence, for instance an argument like "this image is not replaceable", even if true, does not automatically entail that the image can be claimed as Fair Use.

The core of the question is whether the image constitute the subject of the article, or if it depicts the subject of the article. An image that depicts the subject of the article is being taken for mere convenience, and should not be claimed as Fair Use.

Trick

To recognise the image that constitute the subjet rather than merely depict it, check whether the author of the image is known and discussed; whether the technique used is mentionned and discussed; whether how the image was recieved, commissioned, sold, critically discussed etc. are mentionned and discussed in the article.

If these elements are not present in the article, the image is a mere decoration claimed for convenience, and cannot be legitimately claimed for Fair Use.

The "irreplaceability" claim

Most often, Fair Use is invoked in articles that discuss the object of the claim itself, when it is a significant piece of artwork, for instance. This is notably the case on The Falling Soldier or on Raising the Flag on Iwo Jima for example.

These exact images are the sole images that can be displayed there, as they are being discussed for themselves. The image is irreplaceable when no other image could possibly do -- whether Free or not.

As, furthermore, none of these images will concievably be released in the Public Domain, a fair use claim can legitimately be made.

For instance, as to Raising the Flag on Iwo Jima, we do have Free images related to the subject, but:

• 
  statue made according to the photograph Raising the Flag on Iwo Jima, but this is not the exact photograph itself as is discussed in the article
• 
  This is a photograph of soldiers rising a US flag on Iwo Jima, but it is not exactly Raising the Flag on Iwo Jima

The Free alternatives

Just because a Free alternative happens not to exist at the moment is not an indication that it is impossible to create one.

An example of such insurmountable impossibilities is when the nature of the article imposes the use of one very precise image that will never be publish under a Free licence. On the other hand, Incompetence or laziness are not insurmountable impossibilities, only things to work out.

Note here: it is perfectly admissible to be incompetent and lazy. Life is short, one cannot be universally competent, and laziness can be a virtue. Just don't assume that what one is not willing or capable of doing is impossible to do.

Of course, claiming something as Fair Use when the Free alternative does is fact exist is a very gross mistake, and the Fair Use claim is then automatically invalid. But the Free alternative does not even have to exist, the mere possibility that it could suffices to make the Fair Use claim a "jocker" one.

Trick

imagine that your are Francis the 1st. You have at your disposal an enormous wealth of libraries and documentation, which we will assume contain all information that you could possibly require; furthermore, you have an army of the most talented and dedicated painters of the time, eager to realise your wishes.

Under these circumstances, would to be able to commission the image that Wikipedia presently requires? If yes, the image cannot be claimed as Fair Use, and all is needed is a bit of work

The "low resolution" critera

This is not a core issue. Just be reasonable and do not exceed a couple of hundreds of pixels in width or height.

Typical cases

Portraits of people

Portraits of people can be realised in several manners, the most straightfoward being by taking a photograph yourself.

Some people will be difficult to approach. Some will even be dead, making them even more difficult to approach. Death of the subject in no excuse for not abiding by copyright laws. A dead person can be pictured, in several manners:

• Find an old photograph in a scrapbook and publish it under a Free licence (if you have the rights or can negociate them)
• Write to the author of a known portrait and pester him until he publishes it under a Free licence (possibly in a low resolution if he needs to make a living)
• Draw the person. Drawing and painting have been perfectly acceptable techniques for protraiture for centuries, and the advent of 20-mega-pixel flash-in-your-face compact cameras changes nothing to this.

Failure to perform the above can be caused by incompetence, laziness, or a combination thereof; but there is no insurmountable impossibilities. Hence, Fair use claims can never be made simply to illustrate a biography.

Unbuilt thing

Wikipedia has a number of articles on projects that are underway. There is a marked tendency to make "jocker" Fair Use claims in Architecture, but that can apply to projected airplanes, ships under construction, etc.

It is always possible to create schematics of a project that will be sufficiently detailed to give at least a gross idea of what it will be. Failure to create one can be caused by incompetence, laziness, or a combination thereof; but there is no insurmountable impossibilities.

Casebook

• 
  Free hand-hand portrait of Susan Boyle, who is not easily accessible for photography
• 
  a FREMM multipurpose frigate, not yet built
• 
  A portrait of Aleksandr Solzhenitsyn, by Mikhail Evstafiev

Why are these images on Wikipedia? because

• somebody made a drawing for Wikipedia (two first items)
• somebody did a bit of research (third item)
• somebody asked the author to release material under a Free licence (fourth item)

Through the use of these methods, virtually anything short of specific, iconic works, can be illustrated by Free material.

Note that a discussion occurred about another, copyrighted photograph of Bruce Edwards Ivins, on the basis that "the image it meets every fair use criteria. He is dead, it is low resolution, it is sourced, it incurs no revenue loss to the copyright holder" [1]; this argument was incorrect from the very beginning since an image was later found, proving in the most ironclad of manners that it had never been impossible to find a Free alternative.

Reading the policy and examples

Relevant quotations from [2]

• Non-free content is used only where no free equivalent is available, or could be created
• Non-free content is used only if its presence would significantly increase readers' understanding of the topic, and its omission would be detrimental to that understanding.
• Note that it is the duty of users seeking to include or retain content to provide a valid rationale; those seeking to remove or delete it are not required to show that one cannot be created
• images that are used only to visually identify elements in the article should be used as sparingly as possible. Consider restricting such uses to major characters and elements or those that cannot be described easily in text, as agreed to by editor consensus.
• Wikipedia's non-free use policy (...) is more restrictive than US law requires.

example of Unacceptable use

• An image whose subject happens to be a war, to illustrate an article on the war
• A photo from a press agency (e.g. AP), unless the photo itself is the subject of sourced commentary in the article.

; Why I delete images:

• The criteria for speedy deletion specify the only cases in which administrators have broad consensus support to, at their discretion, bypass deletion discussion and immediately delete Wikipedia pages or media. [3]