Image talk:Orly.jpg

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[edit] Copyright tag

I don't believe this image has copyright on it, and thus its data should be changed Mouse Nightshirt 00:38, 27 January 2006 (UTC)

[edit] Reversion

My mistake on the reversion - I've un-reverted. I thought 'rev' meant 'show revision'. --bd_ 04:41, 2 January 2006 (UTC)

ditto >_> MaskedSheik 05:08, 18 February 2006 (UTC)

[edit] Copyright

Whose copyright is it? It's a derived work of the photograph of that owl, so it'd be nice to know who holds the copyright to the photo in order to know whether the copyright claim on the derived work is legitimate (or whether the derived work violates the original copyright). Or is it fair use? --80.135.243.184 07:12, 17 February 2006 (UTC) (Ashmodai)

The author is here: [1]
I've been looking around for a bit to try to find his e-mail. The current license on this page is a little shaky. (Update: Sent him an e-mail.) Ashibaka tock 18:33, 26 March 2006 (UTC)

John White is the original author and has objected to the image being present on Wikipedia. Since there really isn't a fair use claim, the image should be deleted. The Uninvited Co., Inc. 15:10, 11 April 2006 (UTC)

The current tag states the following:
"However, it is believed that the use of this work in the article "O RLY?"
  • to illustrate the object in question check.
  • where no free equivalent is available or could be created that would adequately give the same information check.
  • on the English-language Wikipedia, hosted on servers in the United States by the non-profit Wikimedia Foundation, check.
qualifies as fair use under United States copyright law.
Where do you see the problem? It meets all these parameters. If we aren't going to assert fair use then we should probably get rid of this tag alltogether since it fits the parameters exactly. VegaDark 18:51, 11 April 2006 (UTC)
I have to agree, having just reread Wikipedia:Fair use it seems to match very closely the requirements for Fair Use. Mainly, there is no free alternative and it does not decrease the value of the work. --Falcorian (talk) 06:55, 12 April 2006 (UTC)
I own orlyowl.com, and the image has no license on it other than a Creative Commons one (I gave it that not to claim it but to allow others to use it and share their work). The only thing I ask is that variations be uploaded to my site (orlyowl.com/upload) under the same license so others can view them / use them etc. James Kendall [talk] 17:26, 12 April 2006 (UTC)
The problem is the original O RLY owl picture is based on a picture that had a license on it. --Falcorian (talk) 22:18, 12 April 2006 (UTC)

There are problems with the fair use tag itself, a solution to which has proven elusive. Here's where I see the problem:

  • We are copying the work (a photograph) in its entirety.
  • We do not engage in any critical commentary on the nature of the artistic work itself.
  • While there is a case to be made that we are discussing the role of this image in society, that case IMO is weak, because our discussion is unsourced and its role in society, such as it is, consists of its ongoing use as a copyvio. The article is unreferenced and is likely to remain so, since there are no reliable sources for "internet memes."
  • The photographer has complained to us, making this more than a mere hypothetical question.
  • This image and this article aren't worth the fight. If John White sends an OCILLA takedown notice to Jimbo, what do you think is going to happen?

In general, we overuse the fair use claim, making it an excuse for copyvio content. While we do have more egregious cases than this one, we also have far stronger fair use claims on images that are of much greater importance to Wikipedia. So this would make a poor test case, and it is going to end up in the courts unless somebody blinks. The Uninvited Co., Inc. 16:47, 13 April 2006 (UTC)

You make very good points Falcorian, however it still easily falls under fair use. If you don't think Wikipedia should be engaging in fair use or perhaps should have a different policy on the qualifiers for use of that tag, then that discussion belongs elsewhere. FlameHead 17:24, 13 April 2006 (UTC)
I think you mean "Good points The Univivited Co." ;) --Falcorian (talk) 19:35, 13 April 2006 (UTC)
If you are going to hold images to this high standard, I would strongly recommend you make a topic about it on the administrator's noticeboard for more discussion. I don't think we should be making decisions of what is or is not legally allowable on Wikipedia based on one contirbutor's opinion, and would highly recommend not deleting the image again until community concensus determines to do so. VegaDark 17:49, 13 April 2006 (UTC)

This isn't an unusual standard. We do not have a basis for a claim of fair use here, as we are not discussing the copyrighted work. That so many other people have decided to ignore the authors copyright is unfortunate, it does not excuse violation on our part. --Gmaxwell 18:55, 13 April 2006 (UTC)

I would disagree, according to WP:FU I would say we do. Now, if you would like to argue that the policy should be changed, that is another issue. --Falcorian (talk) 19:35, 13 April 2006 (UTC)
If that's true then we need to delete the image tag template that this image is tagged with, or significantly alter it as it is would be stating misinformation. Also what you are saying is that if we add a few lines to the O RLY? article about the "copyrighted work", it will be allowable? That's easily done. I'll go do it right now. VegaDark 19:38, 13 April 2006 (UTC)
It's not acceptable to goof around to game the system... In any case the text is fine, but you're misapplying it. The copyrighted work in question is John's photograph of an owl... And we have no excuse under fair use to violate his copyright. That someone else has violated it isn't enough. --Gmaxwell 19:42, 13 April 2006 (UTC)
I didn't realize that improving an article in order to make an image qualify as fair use, in turn making Wikipedia a more educational place was considered gaming the system. VegaDark 19:58, 13 April 2006 (UTC)

By way of a counterexample, consider Image:CKeeler1.jpg. The copyright owner complained in that case, and I looked at it, concluded that our fair use case is very solid, and pointed this out to the copyright owner. And, predictably, they went away. There are a couple of important differences. That image is an important one that has seen widespread, lawful distribution in enduring media. The Christine Keeler article where it appears discusses it at length and the role that the unique nature of the image had in the subject's interaction with the public. The article is a solid one, well referenced with reliable sources. And the role of the photo in history would be impossible to understand completely without seeing it. Finally, this is an encyclopedic article on a real historical subject, well written, something that makes it clear that our undertaking here at Wikipedia is serious and scholarly. Something that would impress a judge rather more than O RLY?. The Uninvited Co., Inc. 19:56, 13 April 2006 (UTC)

I agree with the above. But it doesn't discount that usage in the O RLY article still easily falls under Fair Use. FlameHead 22:25, 13 April 2006 (UTC)

Seems like a no-brainer to me. Delete the sucker.

Let me try to summarize the facts so far: The original photographer (John White) didn't grant access to the image of an Owl. He objects to it's use in Wikipedia now. Someone else had taken the image without his permission and added the text "O-RLY" over the top - then put it on their web site. This was CLEARLY illegal - no fair use, nothing. Flat out illegal. Now a clearly illegal (in the O-RLY context) image appears on Wikipedia under supposed fair use grounds because "O-RLY" is being discussed and that's where the image was found. Does this mean that under copyright law, anyone can lawfully use a picture by the following process:

1) At some anonymous web site far from the reach of lawyers - steal the image, add something tiny to it. 2) In Wikipedia, discuss the stealing of the image and thereby claim "fair use".

Hell no!

The original image was taken illegally - it's *just* possible that we could claim fair use if we were discussing the taking of the image - but we aren't even doing that! Even if the image hadn't been illegally copied in the first place, I doubt a fair use claim would stand up for this. It's VERY clear to me that this image must be deleted - and since the owner has complained, we're probably close to having lawyers on our backs. This image must be deleted - utterly expunged from Wikipedia - ideally, whoever screwed up and uploaded it in the first place should send a profuse apology to the original photographer.

No question about this at all. SteveBaker 15:46, 14 April 2006 (UTC)

All of the images tagged under the various fair use categories are used without the consent of the copyright holders. This isn't "illegal", that's the whole point of the fair use exemptions to copyright. In the case of this particular image, the original modification was illegal, and the way it's being used in most places on the internet is probably illegal, but I don't see the problem with our use of it here. This is exactly what fair use is for, commentary on the subject of the image when no alternative is otherwise possible. Bryan 16:12, 14 April 2006 (UTC)
I don't agree. The copyrighted work that we're violating is the owl photograph, and we have no fair use claim to distribute that work. The discussion should end there, full stop. The most most import factor I see here is that we are using the entire work (which is by itself enough to invalidate fair use, see Religious Technology Center v. Lerma). --Gmaxwell 19:58, 14 April 2006 (UTC)
Religious Technology Center v. Lerma stated that "Total duplication of a copyrighted work generally weighs against a finding of fair use. A demonstration that the copying was necessary for a noncommercial purpose can help overcome such a presumption" (citing Sony v. Universal). So, no. —Simetrical (talk • contribs) 20:20, 16 April 2006 (UTC)
Bryan, I fear that you may be misinformed about fair use. Fair use is not for "commentary on the subject of the image when no alternative is otherwise possible." That is a common misconception at Wikipedia that has been permitted to go on for far too long. The fair use defense, in our case, applies to commentary on the work itself, not on the subject of the work (There are also other examples of fair use that do not apply to us which I will not detail here in the interest of keeping the discussion on track). Were we providing critical discussion of Mr. White's photograph, and holding forth on the lighting ratio, the expression upon the face of the owl, the use of eye-shine, and its relative merits compared to other photographs of owls, we might have a case. There are thousands of bogus fair use claims in Wikipedia and the day will come when the will all have to be addressed. For now, however, this one is special only because someone has complained. The Uninvited Co., Inc. 20:32, 14 April 2006 (UTC)
But that seems to apply just as well here, as far as I can see. The "O RLY" phenomenon is all about this particular image. If the fair use template gives a false impression of how fair use is supposed to work then that's not really my problem, the template itself needs to be clarified. Bryan 21:51, 15 April 2006 (UTC)
What you are missing is that we could (perhaps) justify use of a picture that someone had created from scratch and written O-RLY on top of. However, that's NOT what happened here. Someone ILLEGALLY took the owl image and modified it. That means that our using that derived image under fair use is akin to us buying stolen goods. We didn't steal the goods - but that doesn't allow us to buy them - no matter that we paid for them. SteveBaker 01:02, 16 April 2006 (UTC)
I don't think that analogy is a particularly good one. Copyright violation is not theft, it's a different sort of crime. In this case my understanding is that a derivative work has been created whose copyright is held by two people, the original artist and the person who put the "O RLY?" text at the bottom. The original artist didn't give permission for this derivative work to be distributed, so when the text-adder distributed it in a manner that violated fair use exemptions and such he was violating copyright and that was illegal. But as long as we stick to fair usage ourselves, what are we doing that's breaking any laws? The image itself isn't tainted and radioactive because someone else happened to break the law with it, it's just that one of the two copyright holders is not permitting it to be copied freely (and I have no idea what the text-adder thinks about the situation). This is the same sort of situation that 99% of our other fair use images are in. Basically, I'm quite willing to be convinced that my understanding of fair use is flawed since it comes only from Wikipedia's templates and guidelines on the matter, but as far as those guidelines go I don't see how this particular image doesn't qualify. If the guidelines are this grievously in error then the problem goes way beyond this one image and the guidelines need fixing. Bryan 16:08, 16 April 2006 (UTC)
Copyright violation is not theft, it's a different sort of crime. Ah, No. I'm sorry to disappoint you, but copyright violation is *exactly* theft. This style of argument is one sometimes made by shoplifters who say something like "they are a big organisation - they wouldn't really miss it". Whether an image has commercial value or not copyright in an image remains (unless, of course, released by the copyright holder) and the use of such an image without appropriate confirmed permissions is "theft". --Vamp:Willow 11:14, 27 April 2006 (UTC)
Shoplifters and Richard Stallman. Theft deprives the victim of his property. Making a copy does not - the two crimes are not equivalent. 24.181.230.222 16:54, 27 April 2006 (UTC)
See Dowling v. United States: "Since the statutorily defined property rights of a copyright holder have a character distinct from the possessory interest of the owner of simple 'goods, wares, [or] merchandise,' interference with copyright does not easily equate with theft, conversion, or fraud. The infringer of a copyright does not assume physical control over the copyright nor wholly deprive its owner of its use. Infringement implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud." But that's rather quibbling. —Simetrical (talk • contribs) 19:59, 27 April 2006 (UTC)

"The fair use defense, in our case, applies to commentary on the work itself, not on the subject of the work". Is that so? Not as far as I'm aware. Our use is extremely transformative (using it to illustrate an Internet phenomenon vs. using it to illustrate a stuffed owl), it's noncommercial, it's for educational purposes, there's no other way to convey the relevant information (since otherwise readers would leave the article without knowing which O RLY owl was the "original"), the original work was "factual rather than fictional" and was not really "creative, imaginative, or represent[ative of] an investment of time in anticipation of a financial return"[2] (it was a pretty simple shoot), and there can be no derogation of the market value of the original by our using it.

The only factor of the four that's against us is the amount and substantiality of the work used, but we're using the absolute minimum necessary to fulfill the (noncommercial, educational, etc.) purpose we're using the work for. Also see Campbell v. Acuff Rose Music: "The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use."

As far as I can see, our case is completely airtight. —Simetrical (talk • contribs) 20:39, 16 April 2006 (UTC)

[edit] Alternative presentation

An idea comes to mind that might serve to satisfy all parties to this discussion, or at least dissatisfy them less. How about illustrating the article with a screenshot of a web browser showing an actual web forum post that uses this "O RLY?" reply? The owl would still be shown but with more of a limited context that makes it less suitable as anything other than illustration for the associated article. I'd post one myself as an example but I don't frequent any web forums and wouldn't know where to find the genuine article "in the wild." Bryan 20:14, 16 April 2006 (UTC)

That idea doesn't really affect any of the legal issues involved. —Simetrical (talk • contribs) 20:40, 16 April 2006 (UTC)
I didn't think it would, but perhaps it will satisfy some of the emotional issues involved - maybe even those of the original owl image's copyright holder. I myself am fine with using the image as-is, though, so if nobody likes this idea it's no biggie. Bryan 07:34, 19 April 2006 (UTC)

[edit] One Lawyer's view

People really seem to hate this poor owl. I am a licensed lawyer in the United States and this is my opinion on this subject (and only on this subject, standard disclaimer: read the fine print on my userpage): I don't see what all the fuss is about. If it's illustrating the page that is about the subject, particularly when this image is considered the image associated with the meme, it is in my opinion that this should be allowed for the article O RLY?. If this starts being used outside of that article, then it would have a pretty high burden. However, in this case it is being used for the reasons outlined one main page. This dispute should be saved for other, more productive images. Besides: If the owner has an issue with our fair usage, let them come forward and I'm sure there will be no big issue with taking it down then. For now, I say keep it. Bobak 17:37, 19 April 2006 (UTC)

Since you're now providing legal advice to the Wikimedia Foundation it would be useful if you'd coordinate with our attorney, User:BradP. I take it you normally practice copyright law? In any case, because the image has been replaced with a free image we will not use the unfree image, even if the claim of fair use is acceptable, because the inclusion of non-free content is a violation of the goals of the project and we'll only accept that where we have no other choice and where the justification is rock solid. --Gmaxwell 18:07, 19 April 2006 (UTC)
Wow, what a thinly-veiled attack on my professional ability, it must've been so much more convenient than a mere personal attack. Thanks. To your point: this interent meme formed around this particular picture. The article is about understanding the meme. It's as simple as that. Removing the photo would also harm Wikipedia: if you can't illustrate an article based on an image, then something's wrong with the encyclopedia. This is not worth the level of argument its generated, include the photo. Why not just knock this[3] one off too? In Mickey's instance, are we harming the copyright or diluting the trademark in an article about him? --Bobak 20:00, 19 April 2006 (UTC)
It wasn't intended as an attack: If you're freely giving out legal advice on the Internet without the years of work the people here have put into the subject you must be really amazing. Your help is misplaced here. In any case, we have a ORLY owl image which is free, so we have no cause to compromise our goal of making a Free (content) Encyclopedia. You can't make the same claim for Mickey. --Gmaxwell 20:06, 19 April 2006 (UTC)
Please... you're still attacking (or insulting, whatever euphemism you want to employ) my professional opinion as "not worthy". Again, thanks. Your own vast knowledge of how the opinions of attorneys can differ, particularly in the fast-moving world of copyright law, is duly noted. This owl image is perfectly fine fair use and nothing to be concerned about. Bobak 20:10, 19 April 2006 (UTC)
Taking the opportunity to understand copyright law here. Can fair use still be assumed if the author objects to the use of the work? Wouldn't sound very fair to me. The author of this photo seems to have forbidden (sites disappearing...) all commercial use in general and Wikipedia use specifically (message apparently received to info-en). Isn't that enough to say that the owner does indeed have an issue with our usage? --para 21:54, 19 April 2006 (UTC)
I checked what you linked and saw the reference (I assume you mean the comment by The Uninvited Co., Inc.), when that action was taken, there was no fair use rationale. Now the community has crafted a pretty solid one (I haven't seen a need to add or change it). I wish we had some more solid proof of John White[4]'s opinion than that passing comment. As for whether or not you can fair use something over the authors consent... well, that's how the "fair use" legal defense came up, but I don't expect Wikipedia to want to go to bat on all of it. I've actually just written an email to the email on that alt.binaries.pictures.animals posting and I hope it's still actually checked... Bobak 22:55, 19 April 2006 (UTC)
Thank you for your input on the subject. I disagree that "Your help is misplaced here", I think it was exactly what we needed. Also, to Gmaxwell, The article is about the meme that originate about this picture. You can't substitute the picture for a free alternative, because any other picture wouldn't properly represent the subject of the article, which was the original picture. VegaDark 06:13, 20 April 2006 (UTC)
I wish we had some more solid proof of John White's opinion than that passing comment. - we do. He wrote via email and OTRS to formally request the removal of the image as it violated his copyright. We were satisfied that the email was from him and that copyright exists in the image that remains his. It was concluded that there was not a "fair use" defence in this instance and the image was deleted. --Vamp:Willow 11:03, 27 April 2006 (UTC)

No free image can be as useful as the original. Where a free image is equal in utility to an unfree one, certainly the free one should be used, but our readers will not be appropriately informed of the characteristics of the phenomenon under discussion if they can't see the original image. (And there is no case that this is not fair use.) —Simetrical (talk • contribs) 05:02, 21 April 2006 (UTC)

I've restored the image page again, though not yet the image itself. As far as I can see all the criteria for including this image as fair use are satisfied. Would someone please actually refute these points before deleting the image? Bryan 07:06, 27 April 2006 (UTC)

User:VampWillow was the person who originally deleted it, claiming it is a copyright violation. She has not, however, refuted the fair use rationale. I have been attempting to clear this up on her talk page. VegaDark 07:52, 27 April 2006 (UTC)
Please see my comment above. To re-iterate some points made elsewhere; The fact that some other websites still display a copy of this copyrighted image does not make it acceptable for us to do so: two wrongs do not make a right. WP is now one of the major destinations for internet users and we are far more visible (and more public, should someone choose to go after us) that the many small sites out there which may have a copy. The opinion of editors - like you and me - is always welcome on matters where 'opinion' counts, but here we are in a legal situation and legal rules must therefore apply. Via OTRS I am aware that the copyright holder is enforcing his copyright on the images concerned and has contacted WP (and other sites with a copy of the same image) in that respect. Whilst there may be a 'fair use' rationale on some images and not others WP/WMF is not in a position to either test that rationale or decide it; determination of the quality of a 'fair use' claim must be made within WP/WMF and is not - legally - something that can be left to the opinion of editors or self-professed lawyers. Please note that I am not saying that any person saying that they are qualified legally is not, just that none of us can confirm that status remotely plus they are not retained by WP/WMF. WMF lawyers are aware. The suggestion that "educational purposes" overrides copyright considerations is, I'm sorry to tell you, mistaken. This isn't anything that can be voted upon or a community can revolt about. We are subject to copyright legislation just like everyone else, we are just higher profile! --Vamp:Willow 11:10, 27 April 2006 (UTC)
First of all, the fair-use rationale makes no mention of the fact that some other websites still display a copy of it, nor does it act as though "educational purposes" are sufficient to override the copyright. What it does do is break down and analyze the four fair-use factors, and conclude that we have an airtight fair-use case.

As to whether determinations of fair use are up to editors: if the Wikimedia Foundation lawyers don't step in, yes, they are. There are thousands of fair-use images on Wikipedia—are you suggesting that they be presumed unfair until the Wikimedia Foundation lawyers have a chance to examine the rationale on each and every one? If Mr. White would like to file a formal DMCA takedown notice with the Foundation, he's welcome to do so, but until he does the Foundation doesn't need to concern itself with this, and you have no authority to act on behalf of the Foundation on legal matters.

I'm reuploading the image and readding it to the article. Rather than deleting it without regard for policy (or anyone's opinion other than your own), I suggest you put it up at WP:IFD if you want to see it gone. —Simetrical (talk • contribs) 20:12, 27 April 2006 (UTC)

Or of course you could contact WP:OFFICE if you think they should be involved. They are immune from liability unless White himself files a formal OCILLA notice, as surely you know since you seem to profess opinions on matters of copyright, but they might feel like taking action anyway. I don't think they should, but that's their decision, not yours. —Simetrical (talk • contribs) 20:21, 27 April 2006 (UTC)


Appropriate fair use here should have no effect on other websites or vice versa. We are a well-known, non-profit encyclopedia and we are using the image in the interest of discussing its position as a notable internet meme. If things were as stark as you make them out to be why not eliminate the newspaper article too? ["Self-professed lawyers" have as much of an opinion as any self-professed experts --but I can put my money where my mouth is: Click here and simply enter the first name "Bobak", I'm the only attorney in the state with that name]. I agree that the educational use of fair use isn't a slam dunk rather as a "fifth", lesser factor in fair use. So... where's the proof that the author has actually had an attorney write the Wikipedia Project a letter requesting the photo to be removed "or else"? Do we even have any confirmation that the person claiming to be the author is, in fact, the author? A letter from an attorney usually is the easiest way to prove that. Since those that find my opinions inconvenient don't want to believe I'm an attorney, the least thing I can do is say I don't believe the person claiming to the author by a random email is in fact the author. What proof was offered? -- Bobak 20:39, 27 April 2006 (UTC)

[edit] Deletion review

I've put this image up for review at Wikipedia:Deletion review#Image:Orly.jpg. Comments are, of course, appreciated. —Simetrical (talk • contribs) 23:56, 27 April 2006 (UTC)

It's been removed. See the last edit before removal. Apparently it got reviewed by the lawyer from the Wikimedia Foundation, who recommended that it get taken down. I suppose that settles that. Hbdragon88 05:59, 28 April 2006 (UTC)

[edit] External linking to the image

Why don't we just add an external link to the original owl? There's no legal trouble in a hyperlink, now is there. Crazyswordsman 16:16, 1 May 2006 (UTC)

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