Talk:Fair use

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See also: Wikipedia:Fair use for discussions of what is or is not fair use on Wikipedia.

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[edit] Discussion

Does anyone know anything about fair use in performance (showing movies, singing happy birthday, etc)?--Jake13jake 14:46, 27 March 2007 (UTC)

"the US is not the world, folks"

More discussion on the US "bias" in the fair use article is below in the "organizing this & related entries" section. --LQ 14:54, 15 November 2006 (UTC)

- Couldn't agree more, however for what it's worth we need to remember that the Wikipedia is physically located in USA / USA jurisdiction (right?) and needs to conform to US laws on this.

This is a wikipedia-specific point; this discussion page is about discussing the article about the US fair use doctrine. --LQ 14:53, 15 November 2006 (UTC)

http://us.news2.yimg.com/us.yimg.com/p/nm/20021105/mdf143864.jpg

is this pic fair use for THEL Lir 18:52 Nov 8, 2002 (UTC)

This is a wikipedia-specific point; this discussion page is about discussing the article about the US fair use doctrine. --LQ 14:53, 15 November 2006 (UTC)

I've started trying to fix some of the US bias in the page (saying more about fair dealing, linking to the Berne three-step test, etc). But it's quite hard.

Perhaps the page should be split into:

Some of these links might be useful, although I'm sure I've seen a better summary of global limitations & exceptions, I just can't find it right now:

http://www.iprights.com/countrydata/index.asp http://www.unesco.org/culture/copy/index.shtml

Pde 00:22 Jan 30, 2003 (UTC)

More discussion on the US "bias" in the fair use article is below in the "organizing this & related entries" section.

It has been said that, with regard to images on Wikipedia, we are a non-commercial entity, granting us greater leeway in using images. Of course, others can use Wikipedia material for commercial purposes but it is those who choose to use Wikipedia material who are responsible for determining if their use is fair use. Is this correct? Tuf-Kat

Well, in a sense, but there are a whole lot of problems with this reasoning:
  1. As this entry points out, "fair use" does not exist in all countries.
  2. The fact that Wikipedia is non-commercial does not guarantee that a court would find all Wikipedian uses to be fair.
  3. Occasionally, we may slip up and fail to label works for which we don't have GFDL license. If this happens, and someone takes material from the site, and makes an infringing use of it, we could be guilty of either misrepresentation or contributory infringement/authorisation of infringement, depending on the jurisdiction.
Maybe we should instead put up notices in entries saying "person or organisation BLAH has refused to provide us with an image which can be used in Wikipedia".
--Pde 04:44 Apr 16, 2003 (UTC)
This is a wikipedia-specific point; this discussion page is about discussing the article about the US fair use doctrine. --LQ 14:53, 15 November 2006 (UTC)

Explaining a recent edit: fair use is respected by every Berne Convention signatory: that's a hundred and fifty something countries -- basically everywhere copyright law exists. -- Tim Starling 03:25 Apr 28, 2003 (UTC)

Hi Tim!
Fair use isn't respected by every Berne signatory. The Berne convention places restrictions on what kinds of "limitations and exceptions" signatories can enact in their national laws (see Berne three-step test), but it doesn't require members to provide "fair use", or any other kind of exceptions. As I mentioned above, I believe there may be a handful of developing countries outside the US which actually have "fair use" rules (as opposed to "fair dealing" rules, or other kinds of exceptions), most likely because their copyright laws were modelled on those of the United States, but I don't have examples at hand. -- Pde 04:37 Apr 28, 2003 (UTC)
I see. I must have been mislead by this:
It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries.
Hmmm. Interesting. I've never noticed (nor come across discussion) of Article 10(1), but it does seem to be quite different to all the other Berne Articles covering limitations and exceptions. While it certainly isn't as extensive as "fair use", or even "fair dealing", it does appear to be a small, international, exception. I'm going to do some further research on it.
I read that as a requirement but I guess I was mistaken. Anyway, since you haven't reverted my change to the article I take it you're happy with the current intro? -- Tim Starling 05:01 Apr 28, 2003 (UTC)
I've decided you're right and I'm wrong so I reverted my change. It's unfortunate that the US calls it "fair use" and various other places call it "fair dealing". The naming of the article (and the redirect from fair dealing) makes it hard to discuss the international common law concept, at least in the intro paragraph. -- Tim Starling 06:47 Apr 28, 2003 (UTC)
Well, the names being different is actually helpful, because there is an important difference in construction between "fair use" and "fair dealing" (the former being open-ended). The redirect will have to go, and sooner or later I'll get round to creating a new structure for this article (split into "limitations and exceptions to copyright", "fair use" and "fair dealing"). -- Pde 04:18 Apr 29, 2003 (UTC)

We really do not understand the following passage for translation

I will try to clarify it for you. Alex756

"In regards to the digital reproduction of images it may be argued that a lower resolution sample of the image (i.e. thumbnails) is a lesser sample of the image (the sound recording sample is not analogous here) and thus the whole image is only being approximated by the lower resolution sample (limiting futher reproduction outside an informational context)."

Digital reproduction : reproduction of digital images ?

No. It is a digital version of an image, i.e. you scan a photograph.

lower resolution sample (ie thumbnails) : does that mean that part of the image is extracted, resulting in a sample of the original image, of a smaller size, but same quality. Or does that mean the whole image is downsized, and subsequently may lose some quality ? Or does that combine both point ? extraction, and reduction of size ?

A thumbnail is a small copy of the image. If you do a search on http://images.google.com/ you will get a list of thumbnails. Some people may call any smalller copy of an image a thumbnail, i.e. the digital reproduction is a thumbnail. Or it may be a reduced resolution version of a digital image, i.e. the original is 1200px x 800px and the reduced thumbnail is 300x200px.

the sound recording sample is not analogous here : is it sample as "a little piece of" or sample as an "electronic extraction" ? And is analogous here means "similar" or is it to be compared to "digital" ?

"sampling" has been litigated in the context of musical sounds. Any sample, no matter how low the resolution (i.e. sampling rate in digital sound technology) of the sound, if it is a copy of a live sound.

Anthère

Hope that helps. I will look over the French version and see if it is inaccurate. Alex756 00:06, 16 Sep 2003 (UTC)

Hopefully, that is correct. What do you think ? I fear the french wiki is too slow to end up the translation today. Anthère

[edit] Meaning of "fair"

fr:Fair use translates "fair" as "loyal", meaning "accurate" as in a "fair copy". Is this the correct meaning? I assumed it was "fair" as in "reasonable". Does anyone know? -- Tarquin 15:09, 7 Dec 2003 (UTC)


this has been discussed in length on fr Tarquin, and the conclusion was that there was not any translation for that word and notion of fair use. This is also why we kept the mention "fair use" instead of translating it. ant


Anthere, I don't think you understand my question. fr:Fair use says: "Aux États-Unis, le fair use, (usage loyal)....". It IS translating! -- Tarquin 23:39, 7 Dec 2003 (UTC)

Nod. on devrait supprimer ce qui est entre parenthèse. C'était une version initiale. Avec Alex, on avait conclu -> pas de traduction...

Ah! Compris. Je pense cependant que les anglophones ici pourraient repondre a la question, ce qui nous permettrai une traduction vague au moins. -- Tarquin 23:50, 7 Dec 2003 (UTC)

I'm thinking that the third paragraph under "fair use: a defense" should be deleted. This discussion of frivolous lawsuits is nothing specific to copyright but instead relates to any instance of litigation. Unless someone can point to a law that specifically singles out frivolous lawsuits filed by those who know that the defendant has a valid fair use defense, none of this is really appropriate here.

Re: US bias, "fair use" is a uniquely American concept, unless I'm mistaken in thinking that no other country uses the same term. There's a separate entry for "fair dealing," as there should be for any other differently named concept that is also different in substance. -- Postdlf 13:54, 31 Mar 2004 (EST)

Can someone explain, succinctly and to the point in the first few paragraphs, what exactly is fair use? This is a term used only in the US, yet one has to go through all the officialese rumblings without getting a fair idea of what it is. Essentially people who write this article knows what it is; people who don't in the first place would hardly benefit from reading the article. Mandel 12:56, Aug 14, 2004 (UTC)

It's tough to be succinct because fair use is deliberately non-specific. I'll try to make it clearer. Jamesday 16:59, 18 Aug 2004 (UTC)

---

[edit] Affirmative Defense

Also: This page lists fair use as an affirmative defense. Only one court case I've found lists fair use as an affirmative defense, which has a specific legal meaning. The lawyers I have spoken to about this specific subject state that fair use is not an affirmative defense (putting the burden of proof on the defendent as this Wikipedia summary would suggest). Fair use, by definition, is not copyright infringement and thus does not have that same burden of proof as an affirmative defense might.

There really isn't a burden of proof, per se, but that's not determinative of whether or not something is an affirmative defense. What makes it an affirmative defense is that for it to become relevant, the conduct in question must have otherwise infringed one of the copyright holder's exclusive rights. First you must ask, does the plaintiff have a valid copyright, and did the defendant copy, distribute, etc, that copyrighted material so as to constitute infringement? If no, then you're done. But if yes...then pleading fair use is the same as any other affirmative defense, in which you basically say "well, yes, I did do that, BUT..." Put simply, the "yes" is the affirmative, and the "but" is the defense. And while it may not amount to a burden of proof, it is still the burden of the defendant to raise and argue it, and it typically will help if the defendant has supplied sufficient facts about his use to aid in the fair use analysis. Postdlf 00:15, 20 Oct 2004 (UTC)
I think the term might be misleading- fair use is neither a defense nor a right; it's an exemption to copyright. The link to the affirmative defense page in this section implies that fair use is an affirmative defense in the technical sense, which it's not.
Returning to this subject: I don't believe that fair use is an affirmative defense in a legal sense (in the US). Fair use does not imply a burden of proof on either the accuser or defendent. The statute does not read that fair use is brought up as a defense against infringement, but states that fair use is not an infringement of copyright.

RESPONSE:

The U.S. Supreme Court has expressly ruled in Campbell v. Acuff-Rose Music (92-1292), 510 U.S. 569 (1994), that fair use is an affirmative defense.

Probably it would be helpful to clarify what an affirmative defense is and is not. It is a procedural classification; so "fair use is an affirmative defense" has a procedural meaning. It should *not* be confused with rights-based narratives although it often is ("Fair use is a defense not a right"). LQ 17:25, 17 September 2006 (UTC)

[edit] Fair Use Photos

I have a question, might as well be asked here: do photographs of say a piece of art, or a scientific museum exhibit, fall into fair use? see: [Images from Smithsonian] for a bunch of pics of dino bones at the Smithsonian Museum. Does Smiths own the rights to those photos, or does the photographer? Mackinaw 06:41, 2004 Nov 24 (UTC)

Mackinaw, yes. Photographs of copyrighted works are the owner of the photographer. See 17 USC 102 (b) which says
In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
Copyright protection doesn't extend to the idea but does extend to the expression of the idea. This is called the idea-expression dichotomy. For example, let's say I drew a picture of a happy face. The idea of my painting is a happy face. The epxression is the exact way I've painted it. I don't own a copyright in a happy face; if someone else draws a picture of a happy face, he hasn't infringed on my copyright _unless_ he has copied my expression of the idea (unless his happy face looks pretty much like a copy of mine). The comment below about a photo of a copyrighted work being a derivative work is correct. So, I think in most cases a photo of a copyrighted work is not automatically fair use. Of course, an analysis of the fair use factors may lead to a determination that a specific photo is fair use. Reubgr 06:42, 24 January 2006 (UTC)
So anything copyrighted embedded within a photograph is not under copyright protection. So you can take a picture of a logo and the owner of the logo can't claim copyright ownership of the picture. As the creator of the photograph you are entitled to copyright protection. I'm not a lawyer, but that's how I read it.
I'm not a lawyer either, but I'm certain you're reading it wrong. If what you say is true, then I could produce mass copies of a book, film, or other work with impunity simply by photographing its pages/film cells and reassembling said photos into a new book or film reel. Psychonaut 14:44, 30 Nov 2004 (UTC)
Except your work becomes a derivative work, then section 102 (2) steps into play. The above quote relies on fair use. Taking a picture of a book is fine, but taking a picture of every page is reproduction. Just because one picture is valid doesn't mean taking thousands of pictures and putting them together is valid as well. Cburnett 16:22, 30 Nov 2004 (UTC)

In addition to this, how about a screenshot of a tv show or movie? Presumably it would be fair use considering it's one frame out of 10s of thousands of frames (32,000 frames for 22 minutes @ 24 fps). Cburnett 04:16, 30 Nov 2004 (UTC)

And to answer my own question: yes. 17 USC 109 (c) or under fair use.

Actually, Lawrence Lessig talks about a documentary film-maker who had to get clearance because at one point the simpsons were playing in the background. It took a year and $10,000 (I think). While in court "Fair Use" might win here, the cost of using the courts makes it impossible. But in the case of my question(re: photos of museum exhibits), I guess it is fair use.

I just received a message from the user Jaranda, saying not to replace "free use images" with "fair use images", as it "isn't allowed". Why is this so? Why does Wikipedia even have fair use items, then?

--71.119.29.143 18:23, 16 September 2006 (UTC)--Carnyfoke

The short of it is: images are allowed on a fair use basis only when there is no appropriate free use image. And, in fact, it is even more restrictive than that, in that sometimes we'd rather have nothing at all than fall back to "fair use". Beyond that, though, the present talk page is really for working on this article. This discussion about Wikipedia policy would be better pursued at Wikipedia talk:Fair use. - Jmabel | Talk 05:58, 5 October 2006 (UTC)

This might be a bit off topic, but would it be legal to download Amazon's music samples, convert them to OGG, and upload them to WikiMedia? -Archagon 23:16, 31 Dec 2004 (UTC)

[edit] Fair use > EULA... right?

fair use > eula? can an EULA take away your right of Fair use? i hope not.

Fair use isn't legally listed as a right (nor is it legally listed as an affirmative defense). You can contract away ordinary fair uses just as you can contract away copyright. The validity of EULAs is questioned, but if they are legal you can click away fair use.


[edit] Wikiquote Policies

I found this section in Wikiquote:

  • Don't infringe copyrights. Wikiquote is a free compendium licensed under the terms of the GNU Free Documentation License. Submitting work without the copyright holder's permission threatens our objective to build a truly free compendium of quotations that anyone can redistribute, and could lead to legal liability for the project. See Wikiquote copyrights for more information.
What does that mean ? How far does Copyright and Fair Use go ? Can I cite a living person or a short passage from a recent book if its relevant ? Does it need to be embedded in a scientific or critical .. article like in Wikipedia ? Or is a link to the originating Wikipedia article enough ? I hope that i can find the answers here. Thanks, --Mononoke 20:15, 14 Apr 2005 (UTC)

[edit] quoting a dictionary

Anyone know if quoting a definition from a dictionary, if sourced, is fair use? RJII 03:37, 23 Jun 2005 (UTC)

  • Pretty much the same standard as quoting any other non-fiction work. It is mostly a matter of context and of how long a quote. -- Jmabel | Talk 03:38, Jun 25, 2005 (UTC)

[edit] creating a sample

If I create a (obvious fair use) sample of a copyrighted song, do I have to actually own a legal copy of the song I'm sampling? Or can I just download it off the internet, make my sample, and delete the song 5 minutes after I downloaded it?

  • Don't take legal advice from strangers on the Internet. -- Jmabel | Talk 04:33, July 10, 2005 (UTC)

[edit] What is not fair use for images on Wikipedia?

I've seen numerous editors who interpret the "four factors" described in the article so broadly that essentially any image they find on the Web seems, to them, to fall under fair use. To combat this tendency, it would be extremely useful to have a section listing things that are definitely not fair use for Wikipedia.

(Of course, it's impossible to be "definite" outside of a court decision on the matter. However, we can list things whose fair-use defense seems shaky enough that we wouldn't want to include them in Wikipedia.)

For example, how about: an AP photo of a celebrity? A personal photograph of a boat taken (without permission) from someone's home page? A promotional photo of a location from a commercial tourism site? A (low-resolution) image of a shark from a professional marine photographer's web site showcasing samples of artistic work? A technical drawing scanned from a textbook? A frame from a comic book illustrating a character? A still from a DVD for a famous film?

—Steven G. Johnson 17:50, July 11, 2005 (UTC)

  • It's pretty much all a matter of how it is used. I don't think there is such a thing as an image or text inherently incapable of being used fairly. -- Jmabel | Talk 04:37, July 12, 2005 (UTC)
I'm sorry, but that's a cop-out; it's precisely this unwillingness to rule out anything as fair use that makes the "fair use" on Wikipedia so wishy-washy. We're talking about the image being used to illustrate a Wikipedia article on a related subject; I think that's a specific enough context to make reasonable statements. —Steven G. Johnson 05:36, July 12, 2005 (UTC)
Fair use is wishy-washy. It's supposed to be. To give you some idea, copying every TV broadcast made by every major US television channel for commercial purposes without the permission of the channels was found to be fair use. From your list, though remember that context is vital so this is not definitive:
  • an AP photo of a celebrity? fine, though use with contextual care, like about the photographer and their work.
What about used on a page about the celebrity, not about the photographer?
  • A personal photograph of a boat taken (without permission) from someone's home page? fine, commercial loss seems minimal and it's a transformative use.
  • A promotional photo of a location from a commercial tourism site? fine, depending on use. Use it in an article about the photographer or the tourism site and it's fairly easy.
What about in an article about the location, e.g. an article about Jamaica if it's from a Jamaica tourism site, but not about the tourism site/company/photographer in question.
  • A (low-resolution) image of a shark from a professional marine photographer's web site showcasing samples of artistic work? fine, assuming it's about the artist and their work.
No, say we use it in to illustrate an article about sharks.
  • A technical drawing scanned from a textbook? maybe. fine if about the work of the person who produced the drawing or to provide an example of the contents of the book, for example.
No, say it's a textbook about clocks and we use it to illustrate an article about clocks, not an article about the book in question.
  • A frame from a comic book illustrating a character? fine, given the purpose specified here.
  • A still from a DVD for a famous film? fine, assuming the typical uses, to illustrate an article about the film, the character(s) in the scene or those involved in the production.
On the other hand, not fine would apply to many of these if on the user page of one of the authors of the encyclopedia, because the context there is different. Might also be fine there but it's less likely. Depends on the context, as always. Just because something is in the images available doesn't mean that it can be used anywhere - each use has to be considered and some can be fine while others can be not fine. Jamesday 08:07, 12 July 2005 (UTC)
  • It is not a "copout" for me to attempt to describe the law accurately. We can choose to make Wikipedia policy more restrictive than the law, but we cannot change the law and should not misrepresent it. -- Jmabel | Talk 15:39, July 12, 2005 (UTC)
  • It is a copout because you still refuse to name a single use to illustrate a Wikipedia article (not for user pages, come on) that we would not accept as fair use. Add any specific context that you need. All I asked for was examples, and you are dodging the question by saying you can't give a general formula, which is not what I asked for. —Steven G. Johnson 19:05, July 13, 2005 (UTC)
  • Oh. Sorry. If you look back, that's not what you asked. You didn't ask about contexts, you asked only about types of images. And I replied that context is crucial. Examples that would clearly not be fair use:
    • an image of a rose, captured off of a record album jacket, used without permission to illustrate an article on roses.
    • a detailed map, photocopied from a copyrighted atlas, used without permission in an article about the region depicted (unless the map itself was a topic of discussion: i.e. a particular map of a disputed territory might be fair use).
    • a work of art, not so famous as to be iconic, whose theme happens to be the Vietnam War, used without permission to illustrate an article on the war. I say "not so famous as to be iconic" because it is presumably be fair use for us to use a small image of Picasso's Guernica in the article Bombing of Guernica. -- Jmabel | Talk 04:44, July 15, 2005 (UTC)

Thanks, those kinds of examples are exactly what I think would be useful for Wikipedia to combat the "everything seems fair to me" tendency. I should apologize for not being clearer, and also I think I should have commented in Wikipedia:Fair use rather than here. Could you please add a section to that page giving examples (with all needed context) of things that are not fair use for Wikipedia? —Steven G. Johnson 01:12, July 17, 2005 (UTC)

[edit] Copyright law clarification question

Please correct me if I am wrong, isn't the concept of "fair use" a copying exception, it does not apply to or mean copyright law can restrict "uses" of the original that was purchased or otherwise obtained legally? There seems to be much confusion over whether "fair use" means uses of the purchased version that are fair, or copying that is considered fair. "Fair use" should really be renamed to "fair copying" to avoid confusion. Perhaps it originally meant something like "fair uses of having/making copies that would normally be disallowed under copyright law". zen master T 20:48, 22 July 2005 (UTC)

  • "Use of the material" not "use of a physical object". -- Jmabel | Talk 07:09, July 23, 2005 (UTC)


[edit] Misleading statement under Common misunderstandings

"If a work is not copyrighted it is in the public domain and you can use it anyway." I think this statement is misleading. In the US, for works created after 1/1/78, one does not proactively "copyright" a work. It is not something that is done *to* a work. Copyright protection exists the moment a work is tangibly created. Filing with the Copyright Office perfects the author's rights and makes it easier to defend against infringers, but registration is not necessary. If the author hasn't filed, that doesn't automatically mean that the work is public domain. Please see the information on www.copyright.gov for clarification.

The current wording in this article could lead people to believe that if there is no copyright notice on a work, then it must be in the public domain. Although there was once a time in the US when this was true, it is no longer the case.

It might be better to write "If a work is in the public domain, you can use it anyways. If a work is not in the public domain, then unauthorized use must follow the fair use doctrine. The absence of a copyright notice does not mean that the work is in the public domain." (anon 20 Aug 2005)

  • I agree, plus "anyway" or "anyways" should be "in any manner". Editing accordingly.

-- Jmabel | Talk 23:48, August 20, 2005 (UTC)

  • "fair copying" would be misleading, as fair use is a defence to all the various rights listen in §106 of the Copyright Act - §106(1) (right to reproduce), §106(2) (right to modify), §106(4) (right to publicly perform) etc. So it's not just about copying.

[edit] Cut section from intro

"Fair use makes copyrighted work available to the public as raw material without the need for permission or clearance, so long as such free usage serves the purpose of copyright law, which the U.S. Constitution defines as the promotion of "the Progress of Science and useful Arts" (I.1.8), better than the legal enforcement of claims of infringement. The doctrine thereby attempts to balance the interests of individual copyright holders with the social or cultural benefits that follow from the creation and distribution of derivative works. Insofar as this doctrine protects forms of expression that might otherwise be enjoined as infringing copyright, it has been related to First Amendment free speech protections in the U.S. Constitution."

It's not particularly accurate -- courts have only recently considered the constitution's language at all wrt fair use. And the first amendment bit is certainly something commentators have claimed, but I don't think I've seen it cited by any court opinons.

I moved some of the content around, removed some of it, and cleaned some of it.

Novalis 19:42, 5 October 2005 (UTC)

[edit] Trademark section contains an inaccuracy

Last year, in the KP Permanent case, the Supreme Court ruled that trademark fair use doesn't necessarily require an absence of consumer confusion. I'll try to fix it myself at some point, but wanted to flag it in case someone else has time first. Bob92 21:19, 13 December 2005 (UTC)

[edit] Galleries

There is a proposal to allow galleries on Wikipedia provided they satisfy certain criteria at Wikipedia talk:What Wikipedia is not/galleries. The issue arises of the use of fair use images in galleries: in particular a gallery may be composed of a number of images that have fair use defences elsewhere on the gallery, but when aggregated together do not qualify for fair use. It seems appropriate to me that if the proposed change, or similar change is applied to WP:NOT, then this project page needs to discuss the issue. What kind of change would be appropriate? --- Charles Stewart 17:02, 3 January 2006 (UTC)

An interesting question Charles.

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.
I would argue that the key question to be determined here is #3 - If the fair use image meets the various criteria for use in article space, that same individual image will meet those same criteria for use in a gallery if it is unchanged. The fact that there may be many fair use images gathered together in one place does not change each individual image's compliance with the requirements of fair use as it relates to US law. The amount and substantiality of the portion used is exactly the same as it is if that same image is in an article on its own. Otherwise, that same global aggregation argument could be applied to Wikipedia as a whole.
I don't see a problem in using fair use images in galleries, provided all the criteria required by our Fair Use Policy are met. --Cactus.man ✍ 10:10, 9 January 2006 (UTC)

[edit] Wikipedia:Avoid self-references

Most of the links to wikipedia and wikipedia policy shold be removed from here. But, I think there should be comments about it first. gren グレン 07:48, 4 January 2006 (UTC)

Agreed. Most of the discussion about wikipedia policy should be taken to the "Wikipedia:Fair use" discussion for wikipedia-oriented assessment. This talk page should be about the parameters of this article on fair use: how to define it, how to organize it, and so on. LQ 17:27, 17 September 2006 (UTC)

I removed the self-reference section. Feel free to move it from the page's history to the proper Wikipedia page you spoke of. --71.169.129.75 01:03, 21 September 2006 (UTC)

[edit] Law Students

A group of Harvard Law School students are currently taking a class in Cyberlaw and contributing to this Wikipedia, coordinated through Wikipedia:Wikiproject Cyberlaw and a Wiki at Harvard is being used to organize notes on what they are learning, of which one topic is Fair use. It may be of interest to some what is the latest interpretation of the laws they are learning. See here for one of these overviews of where this is appropriate. User:AlMac|(talk) 21:29, 13 January 2006 (UTC)

[edit] scanned book covers

The following discussion started as a copyright examination request, but I think it belongs here. --Easyas12c 22:32, 15 January 2006 (UTC)

  • This doesn't deal with one particular article, it's a general question I can't find the answer to on the Wikipedia fair use page. Can scanned covers of books published outside the United States, say, in Sweden, qualify as fair use? - Haukurth 1 July 2005 13:13 (UTC)
IANAL. In my view, yes, mainly because it qualifies under "amount and substaintiality". You are taking only a very small part of the copyrighted work. Furthermore, it has no "effect upon work's value" because you are not competing with the book and no one will look at the cover for free rather than buying the book. If anything, you're encouraging a purchase. As for it being Swedish, that's irrelevant. The servers are in the US and hence only have to follow US law, and the U.S. allows fair use. Superm401 | Talk July 2, 2005 19:01 (UTC)
Laws are evolving. Fair Use is a US concept not found in some other nations, especially Asia. People in other nations can access the data that is on U.S. Servers. Suppose they see something that is illegal in their nation, such as pornography. The US e-server could be considered to be in violation of laws of other nations. User:AlMac|(talk) 04:24, 16 January 2006 (UTC)
As I understand it, Wikipedia operates under the assumption that U.S. copyright law is the relevant law. Our primary servers are, after all, based in the U.S. Clearly, significant portions of Wikipedia would violate the laws of, for example, Iran or Myanmar. Our use of illustrations in the articles related to Nazism probably violate some law in Germany. We do not restrict our content to only what is legal in every country of the world: that would make for a rather anemic encyclopedia. -- Jmabel | Talk 06:13, 18 January 2006 (UTC)
I concur with Jmabel's analysis. Also, there is a doctrine called fair dealing in Commonwealth law which is similar to fair use, though it is much narrower. --Coolcaesar 17:01, 18 January 2006 (UTC)
These last two comments really appear to talk about what operating law for Wikipedia; not the "fair use" article at issue here. LQ 17:42, 17 September 2006 (UTC)

[edit] Wrong link - Henry Holt case - does not lead where it should

sorry if my 'contribution style' is incorrect! please make allowances for this once. i'm not quite au fait w/ wikipedia style guidelines (though i plan to be!). i thought i should point this out while i'm here (& studying for an exam in I&IP at McGill University, in Montréal, Canada). Peace, s. —The preceding unsigned comment was added by 142.157.152.161 (talk • contribs) 27 June 2006.

[edit] Fair use and toy boxes

On a lighter side of fair use, sometimes there is a wikipedia entry for a toy. People will quote the several sentences of the description on the front or back of the toy box, saying it's fair use since it's openly printed to the general public. Others point out the copyright notice on the box bottom and remove the toy description from the wikipedia entry. Is there any official call on this? Is it fair to quote the words on a toy box in a Wikipedia entry for a toy. user:mathewignash

Copying above to Wikipedia talk:Fair use. __meco 08:31, 7 July 2006 (UTC)

[edit] Required or provided

Text currently reads: "Some commentators have also suggested that some form of fair use defense is required by the First Amendment's protection of free speech, because without some amount of copying, some things simply cannot be said." I find this a little hard to grasp. Shouldn't the word required be replaced with provided here?

Seems fine to me. First Amendment protection of free speech necessitates ("requires") the existence of a fair use defense. It'd be clearer without the passive voice though, let me go fix that. Jerry Kindall 23:19, 12 July 2006 (UTC)

[edit] Always unfair?

Is commercial use invariably unfair? --84.61.37.241 13:11, 14 July 2006 (UTC)

No. Otherwise no movie ad could ever quote a review! - Jmabel | Talk 06:09, 18 July 2006 (UTC)

[edit] "Low Resolution"

I don't know if this is the place to ask or not, but what is the consensus on "Low Resolution"? I read "thumnails" earlier, but what specific resolution? I ask because http://en.wikipedia.org/wiki/Image:Honda_WOW.jpg seems to me to be too high of resolution to be considered fair use. I was going to resize it, but was unsure as to what size to target. Thanks. --Douglas Whitaker 04:53, 20 July 2006 (UTC)

Douglas, you'd do better to take that kind of question to Wikipedia talk:Fair use, the talk page of a project in community space rather than a talk page discussing an encyclopedia article. I'll copy it there for you. - Jmabel | Talk 17:02, 24 July 2006 (UTC)

[edit] "Fair use in Wikipedia"

I have no idea why a section is here on fair use in Wikipedia. Why, for example, should that be more important than fair use in Britannica, or The New York Times? I think this smacks of navel-gazing.

Furthermore, the section starts out with a statement that is uncited and probably wrong: "Fair use is used in Wikipedia, mainly for screenshots, persons and significant pictures." This seems to assume that the majority of fair use in Wikipedia is visual. I suspect that, in fact, the majority of instances of fair use in Wikipedia comes in the form of quoting a short passage, or simply using a choice phrase, from a copyrighted work. - Jmabel | Talk 02:49, 21 August 2006 (UTC)

Totally agree. (And it looks like User:FidelFair did, too, since they got rid of the section.) LQ 12:37, 3 October 2006 (UTC)

[edit] "fair use" - organizing this & related entries

We may need a disambiguation page, or some other page that sets forth the related and similar doctrines of "fair dealing", "fair use (copyright law), "fair use (trademark law)", and so on. The "fair use" defense in trademark law, while it shares free expression principles with the fair use defense / right in copyright law, is really a distinctive doctrine. "Fair dealing", similarly, is a distinctive doctrine. (And as User:Pde suggests above those pages can appropriately have their own entries. The disambiguation page, if it is ultimately to be more than merely a disambiguation page, I would suggest be not just "exceptions and limitations in copyright" but something that targets more "free expression limitations in intellectual property"--because neighboring rights, moral rights, etc., may be treated as distinctive legal regimes or as part of copyright. Exceptions to these categories of rights, sui generis property rights, and rights that straddle various legal regimes ("right of publicity") would all be related.)

This entry, then, could be reorganized along these more international and holistic lines as "fair use (copyright)":

  1. the general concept;
  2. its historical development (largely in the US, first through case law and then codified in 1976 Copyright Act);
  3. influence on "fair use (copyright)" on and from related doctrines internationally ("fair dealing" in the UK; the Berne test; etc.);
  4. the most common formulations, including the 1976 Act four-factor formulation;
  5. specific important applications (e.g., parody; quotation; some personal use); and
  6. common confusions or doctrinal ambiguities ("defense or right").

Thoughts?

-- LQ 17:42, 17 September 2006 (UTC)

I like the concept for the general page, but should have some snappier and more positive title than "free expression limitations in intellectual property." Fair use is a limit to the IP holder's right, and is so treated in the code: "107. Limitations on exclusive rights: Fair use." But it is a right for the user (etc), and most of us probably use the term that way. Suggestions?
In the meantime, should this page be retitled "Fair use (US Copyright)"? (It should still have an explicit comparison with "fair dealing" unless we make a special page for such comparisons, which might avoid some confusion.) I think it would be appropriate now, and also if there's a more complicated structure as proposed by LQuilter Objections to the changed title?.DGG 02:33, 21 September 2006 (UTC)
I think "Fair use (US Copyright)" would more accurately reflect the majority of content in the article than the current title "Fair use". Although there have been some attempts to "internationalize" the article, they're sporadic & inconsistent, and I think this is largely because the doctrine is a US doctrine. We would need to clean up the text though, too, as in the Philippines reference. LQ 12:31, 3 October 2006 (UTC)
There's actually an article called Limitations and exceptions to copyright which needs to be fleshed out, but works as the general article. Then I agree that "Fair use (US Copyright)" should be the title here. (Or is it "Fair use (US copyright)", with the lower-case "c"?) I'm loath to do the "move" though because I think a lot of things probably link here. I will start by moving the trademark material to its own fair use trademark page. --LQ 17:41, 12 November 2006 (UTC)
The article should not be "internationalized." As you conceded, fair use is primarily a U.S. doctrine (actually, a defense). I agree that a split into trademark and copyright is appropriate because although related, fair use in trademark and fair use in copyright are quite distinct. What we should do is keep this about the U.S. doctrine and then have See also links to all other related legal doctrines. For example, that's how I successfully handled the mess with cat's eyes and raised pavement markers. They were merged for a long time, which created incessant fighting among British and U.S. Wikipedia editors, and after I split them up, everyone gets along fine (most of the time). --Coolcaesar 08:05, 15 November 2006 (UTC)
I moved the trademark section to its own page (Fair use (US trademark law) the other day with no ill effects <g>. Just now I moved the Philippines reference to a section titled "influence" in the fair use article. It's accurate that the US fair use doctrine has proven to be a model or influenced other nations' development of their exceptions, and this section could grow. That contextualizes the point properly within the US doctrine of fair use, which is what this article is about. It would then be worth making a separate article that encompassingly discusses free expression defenses in copyright law, and includes fair dealing in UK, fair use in Philippines, fair use in US, and so on. I'm going to hold out just a bit longer for more commentary or objections, then move the main article to "Fair use (US copyright law)".--LQ 14:53, 15 November 2006 (UTC)

[edit] Common misunderstandings section

The Common misunderstandings section seems like original research to me. If it isn't, then it need citations, and if it is then it should be replaced with a non-original research. I'll see what I can find, but if anyone knows of an sites that specifically cover this topic that would be great. Koweja 01:25, 9 October 2006 (UTC)

These are indeed common misconceptions, and not original research. (And each of the points within it are well documented elsewhere, as well as in the article itself.) However, a "common misconceptions" section seems, itself, a little non-encyclopedic in tone; list-ish, rather than encyclopedic-essayish. I think it's probably better to include the material within the relevant sub-parts. Or, to flesh out this section, and explain that because of the growth of copyright and the related increase in reliance on the doctrine of fair use, a lot of misconceptions and confusion have arisen over time; e.g., X, Y, and Z. Still shouldn't be list-ish, though. -- LQ 19:24, 9 October 2006 (UTC)

"However, binding agreements such as contracts or license agreements may take precedence over fair use rights.[21]" -- having just skimmed the Wall Data opinion from the 9th Circuit Court of Appeals, I'm not convinced that the reference actually supports the statement. Instead it seems to me that the L. A. County Sheriff's Department use of Wall Data's software simply didn't qualify as fair use under the law. There was one point on which the license terms did come into play, but even without that, it seems doubtful to me that the Sheriff Department's use would have been considered fair. IANAL however. Jerry Kindall 08:13, 27 November 2006 (UTC)


Additionally, the use of the phrase "fair use right" should be supported. The last paragraph of the "Fair use as a defense" section implies that there is disagreement on the subject, and rightfully so. Frankly, you will be hard pressed to find the statement "[f]air use is a right granted to the public on all copyrighted work" in an opinion letter. Further the statement, "[t]he First Amendment, for instance, is generally raised as an affirmative defense in litigation, but is clearly a 'right'", is misleading. First off, the First Amendment is not a "right". The First Amendment contains several rights but is not itself a right (Free Exercise, Freedom of Speech, etc.). Does one have a right to non-establishment? Secondly, Fair Use is statutory not constitutional. Comparing the two like they are the same is disingenuous. There are plenty of cases that use the term "fair use right", maybe there should be some discussion on the "fair use as a right" debate because this treatment really isn't fair to the music teacher making copies of pop songs or the kid e-mailing songs to friends. People need the full story. Not that I'd recommend getting a legal education from Wikipedia. Mkshbeck 21:24, 22 March 2007 (UTC)

[edit] External Links section

The external links section is getting outta hand! There are 20 links right now. -- LQ 15:01, 20 October 2006 (UTC)

Also, someone keeps adding in Section 121, a Braille exception. 107 is fair use; all the many other exceptions and defenses of 108 onwards are not "fair use". There should, instead, be a "see also" to "other exceptions and defenses". -- LQ 15:01, 20 October 2006 (UTC)

[edit] Tone

"Third, although normally making a "full" replication of a copyrighted work looks really bad…": surely, the judge did not say "looks really bad". - Jmabel | Talk 08:26, 24 December 2006 (UTC)

[edit] Gameplay videos

I was wondering, if one was to make a gameplay video of something, like defeating a boss in Final Fantasy X (just using a game most people know off, it could be any other game for that matter), and put it on the Internet for people to see, would this be considered fair use or a copyright infringement? --Hecko 06:50, 16 January 2007 (UTC)

It is potentially a copyright infringement because the imagery comes entirely from the copyrighted game. However, it is possible that you could make a fair use justification. Again, fair use is, above all, a legal defense. - Jmabel | Talk 03:05, 5 February 2007 (UTC)

[edit] Al-Qaida propaganda images

Surely a special case :) The photo of "al-Hukaymah" here: http://en.wikipedia.org/wiki/Mohammad_Hasan_Khalil_al-Hakim was extracted (I don't know by whom) from a propaganda video made by the international criminal organization known as al-Qaeda. It's a safe bet that al-Qaeda will not come forward to sue any of us. But seriously, is there some formal Wiki policy about such cases? Lots of other terrorists' faces are known only from such "enemy" sources. In any event the enemy made these images for free distribution, although not always public distribution, exactly. LDH 12:36, 20 February 2007 (UTC)

Probably a question for Wikipedia talk:Copyrights/Can I use..., rather than the talk page of the encyclopedia article about fair use. - Jmabel | Talk 17:17, 18 March 2007 (UTC)

[edit] Some "DICK HEAD LOSER" vandalism ?

Today (march 20 2007) I've noticed the text "DICK HEAD LOSER" in big font in the first section of the article "Fair use under United States law" between "The fact that a work is unpublished shall..." and "The four factors of analysis for fair use set forth above...". I've tried to edit the section, but the text appears nowhere in the source. I suspect the text has been added by other means. What can we do about that ? Fabricebaro 16:30, 20 March 2007 (UTC)

I removed that a few minutes ago.[1] It doesn't appear on the article anymore for me, so it's probably your cache, which you can bypass with Ctrl+F5. It should be gone after you do that. —M_C_Y_1008 (talk/contribs) 16:35, 20 March 2007 (UTC)

[edit] Scanned pages from books to support citations

Sorry if this is answered somewhere, but I can't find a clear Wiki policy regarding the use of scanned pages of books. For example, this sample page was scanned from a Sanskrit text that is copyrighted. [2] The page image was referenced in connection with a discussion of what the text says on an article talk page: Talk:Ashvamedha#Griffith_reprint_.28again....29 Is it ok to scan pages in this way? Can they be used in articles to support references? Buddhipriya 04:52, 25 March 2007 (UTC)

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