Image talk:Wheatus 2005.jpg

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[edit] Replaceable fair use disputed

I understand that promotional photos of products like cars or iPods or something like that can be easily replaced by free images (and have taken a couple of such photos for Commons myself), and fully endorse that such fair use images are being deleted, but with a band I think it's different: First of all, while there are millions of iPods around the world, the band only exists once, thus limiting it's "availabilty" to be photographed compared to those products. Additionally, unlike photos of single persons, a band is made up of multiple members (six, in this case) and making a free photo (at a concert for example) that "would adequately give the same information", e.g. lets you identify each member, is close to impossible (Just take a look at Image:GnarlsBarkleyAvalon.jpg, the image currently used for the Gnarls Barkley article; Out of the five people in the photo, Cee-Lo (far right) is the only one identifiable). --Fritz Saalfeld (Talk) 10:39, 25 November 2006 (UTC)

Our fair use policy forbids using a non-free image if a free image could be created that could be used in its place. See criterion #1 and counter-example #8. In this case, it would be possible to create a free image; therefore this non-free image may not be used. Whether a free replacement image exists or not at this time is not relevant. – Quadell ^{(talk) (random)} 18:03, 28 November 2006 (UTC)

WP:FUC #1 speaks of a free replacement that "would adequately give the same information", and as I explained above, such a replacement may be impossible to create (for members of the general public, that is) when it comes to bands. --Fritz Saalfeld (Talk) 18:45, 28 November 2006 (UTC)

People take photos of bands all the time. These people are still alive. The band is still together. It may be more difficult, but the fact that it would be difficult doesn't mean it's irreplaceable. Do you really believe it would impossible to photograph these people together? – Quadell ^{(talk) (random)} 18:58, 28 November 2006 (UTC)

Since the only time members of the general public get to see all six members together as a band is on stage at a concert, and (as I explained above) the chances of taking a picture at a concert on which you could identify all six members the way you can on a publicity shot (which I would assume is meant by FUC#1's "would adequately give the same information") are pretty slim, yes, I would say it is pretty much impossible (for members of the general public, again, obviously) to create a free equivalent to this image. --Fritz Saalfeld (Talk) 19:08, 28 November 2006 (UTC)

Well, I understand the basis of your objection now, at least. But I have to say, I completely disagree with you. People often take photos of members of bands together, and frequently these are good enough that you could identify all members. (I do agree with you, by the way, in your understanding of "would adequately give the same information".) See this, and especially subcategories (by nationality, or by genre). – Quadell ^{(talk) (random)} 20:14, 28 November 2006 (UTC)

Looking through the category and subcategories you linked to I couldn't find one single good photo showing a whole band, at least not for bands I had heard of before. Most of those photos are either decent photos of only a single member of a band, or taken from so far away and so blurry that you can't really tell which band it is. Just look at Image:Oasis 2005.jpg and Image:Darkness live.jpg... you're not going to tell me these provide the same information that a promo photo would, will you? I also went through several band articles yesterday and the only one I could find with a decent free image was The Beatles. All other articles either use promo photos, no photo at all, or photos like the one in R.E.M., where Michael Stipe is more or less recognizable, and the other two and a half people in the photo could really be anyone... I see that it might be in theory possible to create a good free band image, but in practice, I think if we're really to apply as strict conditions for band photos as you do, it will only diminish the quality of band articles, because they will just end up with crappy, unrecognizable photos, or completely without a picture until the band splits up and a fair use photo is no longer replacable. --Fritz Saalfeld (Talk) 10:52, 29 November 2006 (UTC)

Well, you're right that Image:Oasis 2005.jpg and Image:Darkness live.jpg do not show the same information that a promo photo would. This is an interesting case, and there are probably hundreds of images that this same principle would apply to. I'm curious as to other people's reactions. – Quadell ^{(talk) (random)} 13:58, 29 November 2006 (UTC)

Yes, so am I. I was already thinking about putting up a request for some more comments on this at Wikipedia_talk:Fair_use, or moving the whole discussion there... --Fritz Saalfeld (Talk) 14:11, 29 November 2006 (UTC)

Well, for some bands (like KISS (band)) finding them with their stage costumes on might be difficult. The same goes for trying to photograph all the band members at the same time. As long as the image isn't merely illustrating what they look like in general but actually illustrates what they appear like when they promote themselves as a band I can agree that a fair use image could be allowed, that is until a free image is found (or the fair use image becomes PD, but that might take a while). --Oden 15:07, 29 November 2006 (UTC)

My reaction is that these are quite appalling photos but are unfortunately the types of low quality image that RFU tagging will introduce to the encyclopedia. Can't wait to see the snaps of people posing with their favorite celebrity appear too......Jbuzza 20:43, 29 November 2006 (UTC)

• Keep photo. As per WP policy we must try to exercise reasonableness in such matters. No suitable replacement for this photo exists, the photo was created for the express purpose of being used for such a purpose, and User:Fritz Saalfeld's arguments regarding the unsuitability of replacements are compelling. Badagnani 15:24, 29 November 2006 (UTC)

• If it's concededly reasonably possible to get a good "free" photo of any of the band members, why should it matter that it is unlikely to get a single good "free" photo that contains all of the band members? As the information is what is important, why wouldn't three or five photos that collectively illustrate the entire band be of equivalent relevant information to one that depicts them all? I haven't drawn a conclusion yet, I honestly don't know whether there is an answer to these questions. Postdlf 15:29, 29 November 2006 (UTC)

That's an interesting idea. Maybe Leonardo should have considered such a format in his The Last Supper -- it would at least have avoided having to use such an unreasonably long canvas. Badagnani 15:34, 29 November 2006 (UTC)

Cute.  ; ) But that's an interesting example to bring up: the point of The Last Supper isn't simply to illustrate the disciples; it's to depict the event of them eating together for the final time, so vital information is provided by their inclusion within one setting in one photo. Postdlf 15:58, 29 November 2006 (UTC)

• A photo that you take of band members performing on stage is absolutely, 100%, NOT a free image. It is a derivative work of their copyrighted performance. The owner of a copyright of a work has sole discretion to authorize derivative works. That copyrighted work could be a piece of literature, a news photo, an album, or a stage performance. Taking a photo of a band performing is a derivative work of their performance just as taking a photo of a movie is a derivative work of that movie. Thus, there is no free image that could be created that would be the equivalent of thie image and thus this image does not violate FUC #1. BigDT 15:36, 29 November 2006 (UTC)

Well, derivative work is usually limited to two-dimensional works and only rarely includes three-dimensional work like statues etc. (otherwise architects would have copyright not only to the plans but also to the image of a building, making it impossible to photograph outdoors). There is also freedom of panorama. --Oden 15:41, 29 November 2006 (UTC)

This image doesn't appear to be taken at a concert though? Also the purpose of this image is to illustrate the band members, so in that regard it is a replaceable image. --Oden 15:44, 29 November 2006 (UTC)

I don't see how a photo of a band performing a song can possibly be a derivative of that musical performance; what is copyrighted is the song (and the audio of their performance of it, presuming that they're recording it live to satisfy the "fixed" requirement), not the motions the band makes while playing it or how they look while they're performing it. The photo simply wouldn't copy anything that is copyrighted because there's no audio component.

The key is whether the original work (or what you are showing of it) is creative. A guy sitting typing at a computer, as an example, is not creative and so there are no copyright issues there. But unless the band is recording in a studio, presumably, they have costumes, they have props, they have other visual aspects that would be creative and thus copyrighted. BigDT 16:04, 29 November 2006 (UTC)

Actually, the typing analogy is a good one, because what I type is creative—it's protected written expression. But the act of typing is not itself copyrighted, such that a photograph of me typing would not touch upon any of my copyrights. Same with a musical performance; a photograph does not touch upon the copyrighted musical work. Whether there is a sculptural prop on stage or a costume that could be copyrightable is something that would only need to be addressed when it's there. It would of course be impossible to get a free picture of hypothetical Band X that only performs in Mickey Mouse costumes.

However, I suppose we should also consider that choreography can be copyrighted, such that if a musical performance involves prearranged dance moves that are sufficiently complex and original as to constitute copyrightable expression. This is more an issue for performers like Madonna than any rock band, because standing in place and headbanging while you strum your guitar would not count, nor would any movements that were made simply as necessary to play their instruments, nor would anything they improvise on the spot because of the "fixed in a tangible medium" copyright requirement (it would have to have been written down in advance). But I also wonder if a single photograph of copyrighted choreography even "copies" that choreography enough to even register as a derivative, rather than being de minimis (and therefore below the legal threshold); a split second photograph taken mid-dance step is probably going to show too little of what that dance move is (if a single move is even copyrightable, outside of the complete sequence of moves). But I'm just theorizing; I don't know of any case law on this issue. Postdlf 16:22, 29 November 2006 (UTC)

The members of a band may be illustrated with a colletion of free images. We don't really need an image of all members together, altough, if one is available, it's nice to have. Anyways, as the policy ask for each of the member's image to be free, we can always make an image collation to display all members in a single jpg file, if we want. --Abu Badali 15:48, 29 November 2006 (UTC)

Then wouldn't it be a better idea to ASK the band to release a free image rather than simply tag the image as, "someone else ought to do something"? Both take about the same amount of effort. Heck, if you ask, either way, the problem is solved. If they say yes, you have an image. If they say no, then that is proof that no free equivalent can be created. BigDT 16:04, 29 November 2006 (UTC)

Wait wait. There have been some seriously less-than-useful comments here. I'd like to take a moment to separate the wheat from the chaff. Oden, in his first comment above, said that "a fair use image could be allowed, that is until a free image is found". That is expressly against policy. If a free image could reasonably be found or created, a fair use image can not be used. Badagnani argues that "no suitable replacement for this photo exists", which is expressly irrelevant - the question is not whether a replacement exists, but whether a replacement could reasonably be created. BigDT states that a photo of a band in performance is a derivative work, which is clearly incorrect. (Ad-libbed and improvisational acts are not copyrightable; only that material which was written down previously "in fixed form" is copyrightable. That includes the song itself, but not anything capturable by photography.) BigDT later suggested that if the band did not provide a free image, then that would be "proof" that a free equivalent could not be created - which is not true. I could still take a photo of them. This conversation is getting so bogged down with false statements and statements against policy that it's getting difficult to find useful information on how to apply policy to this special case.

To recap: our policy states that a replaceable non-free image may not be used, even if a free replacement does not exist at this time. Further, a non-free image may not be used just until a replacement is found. These are basic parts of our fair-use policy. If you disagree with them, discuss it elsewhere; this page is for determining how to apply policy, not on whether you agree with the policy or not.

So where are we? Part of me thinks that it should be possible to photograph a popular band together in a photo where all members are recognizable. Fritz has demonstrated that this almost never happens, at least for well-known bands. Now, Postdlf and Abu suggested that a collection of photos of band-members should suffice, but I disagree - these would be photos that depict individual people, but they would not depict the band itself, which is what the article is about. – Quadell ^{(talk) (random)} 16:33, 29 November 2006 (UTC)

Can you cite a single law or legal precedent that claims that a photo of a band performance is not subject to copyright? As for the fixed requirement, the law says "A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission." [1]. In other words, if a recording is being made of the concert, it certainly meets the requirement of being fixed, whether it is impromptu or not. BigDT 17:01, 29 November 2006 (UTC)

Something tells me that it's not the comments that aren't valid or useful here (an average person could argue for their reasonableness), but the policy. It's limited and poorly implemented and VERY rigid. - Stick Fig 17:21, 29 November 2006 (UTC)

Comment. I feel I need to clarify my statement. I said: "I can agree that a fair use image could be allowed, that is until a free image is found". What I meant is that it is policy to replace all fair use images with free images if a free image becomes available. Therefore all fair use images should be replaced by free images, if and when they become available ("found" in my words).

The question here though is whether a free image could become available. We are not talking about replacing one or more images, but a group photo. Is a group photo a requirement in this context? If it is, then it cannot be replaced. If it is not, then it can be replaced. --Oden 16:43, 29 November 2006 (UTC)

I suggested that a collection of photos of band members could suffice, but I'm not yet sure of that. I'd like to pin down what information a band picture presents that the aggregate of individual photos would not, beyond "we were all standing together before the camera on this day." Postdlf 16:45, 29 November 2006 (UTC)

I support Postdlf's view. --Abu Badali 16:58, 29 November 2006 (UTC)

Relative size of the different members of the group, trivially. More specifically, this would capture what they all look like at any given time. Surely, as a hypothetical a photograph of the Beatles in 1964 could not be adequately replaced by separate photographs of Ringo Starr in 1964, George Harrison in 1968, John Lennon in 1980, and Paul McCartney today? It might also give a sense of things that would not be obvious from individual photos - any kind of uniform or costume worn by the band, for instance. john k 17:57, 29 November 2006 (UTC)

Comment. Can anyone cite a single law or legal precedent that claims that a (still) photograph of a live musical performance is subject to copyright? This issue can also be regulated by contract, that is to say that a person who attends a concert agrees to terms and conditions which include no photography, making it very difficult to make a general assessment of the legality. As for 17 USC 101 I believe fixation refers to recording, while the previous entry on this talk page referred to fixed as written down. Of course, the legality of the matter is secondary to the issue of replaceability. --Oden 17:20, 29 November 2006 (UTC)

Clarification: the legality is secondary because the law may vary (in different jurisdictions for instance), but Wikipedia's policies must be interpreted uniformly. --Oden 17:22, 29 November 2006 (UTC)

By that you mean, whether a still photograph of a live musical performance would be subject to the copyright of that music (which is no), not whether the photograph is copyrightable, correct? Postdlf 18:37, 29 November 2006 (UTC)

Whether the photograph is copyrightable/a derivative work. My point is that a certain answer on legality is difficult to make, it might be possible in some situations and not possible in other situations. --Oden 18:51, 29 November 2006 (UTC)

"Whether the photograph is copyrightable" addresses whether the photographer has rights, which is not at issue so try not to confuse the language. Whether it is a derivative work is the completely a separate issue of whether that photograph "copies"/makes use of another copyrighted work. It isn't possible for a photo to copy a musical work from a performance, but see my above comments on choreography regarding the performance itself. Postdlf 19:00, 29 November 2006 (UTC)

I found a picture licensed under CC-BY-NC on Flickr [2]. If someone were to contact the photographer and ask maybe they would let it be licensed under CC-BY or CC-BY-SA? It's not very good quiality though. --Oden 17:43, 29 November 2006 (UTC)

That's exactly the point: It might be free, but it does not give the same infomration the fair use image gives. Not one member of the band can be identified in that image on Flickr. --Fritz Saalfeld (Talk) 17:49, 29 November 2006 (UTC)

Well there's a case where no image really would be better, it is quite diabolical !! Jbuzza 20:45, 29 November 2006 (UTC)

[edit] Quality vs. content

That most amateur photographs suck seems to me to be beside the point. It's not helpful to a legal fair use argument (let alone Wikipedia policy) that "his photograph is of a higher professional quality than mine." What matters is whether "his photograph provides information that mine cannot reasonably depict." Now if a subject is always so protected by security that the public cannot get within 100 yards of him, then all "free" images are going to be incoherently fuzzy, but this is again a matter of available information; a free image of the subject is effectively not available in that hypothetical.

John k's comments above (re: Beatles, etc.) hit squarely on what relevant information an image contains that a free replacement cannot reasonably provide. Can anyone apply that thinking to this particular image? Postdlf 21:12, 29 November 2006 (UTC)

[edit] Not deleted

This was a difficult case, but I (as the processing admin) have decided against deleting the image. There were compelling arguments on all sides, but I'm just not comfortable saying that the image is replaceable. Perhaps this could be dealt with on a larger scale (once the hullabaloo about rfus in general dies down), but until then, I can't be confident that a member of the general public could produce a new photo that shows the same information. – Quadell ^{(talk) (random)} 21:25, 30 November 2006 (UTC)

You made the right decision here. I think that we need to consider these sorts of qualitative factors regarding ANY fair use image, but this is a great place to start. Fully support. - Stick Fig 05:37, 1 December 2006 (UTC)