User:B/Image copyrights and fair use
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Image deletion has, unfortunately, become rather controversial lately. There are about 570 problems right now with the way we are dealing with images. Call this an essay, call it a soapbox. I just have a few thoughts to express with regards to images:
What fair use isn't
The "fair use" policy on Wikipedia is probably the most misunderstood policy we have. We all do this - we call the fair use tags like {{logo}} or {{promophoto}} -"license tags" or we say that images are under a "fair use license". But that's actually a misnomer. If it didn't mean going back and spending weeks rewriting everything, we should call them "unlicensed" or "non-free" images.
"Fair use" is not a license - it is an aspect of copyright law that recognizes our ability to use a copyrighted work without permission under certain circumstances.
"I want to" is not a rationale for using a fair use image. Too many Wikipedians, though 100% completely and totally well-meaning, have a line of reasoning that goes something like this:
"Well, this image would be great to use, it's not free, therefore it must be fair use".
Well, unfortunately, that just isn't the case. Fair use is not a license to use any unlicensed image. Not infrequently, when I have tagged an image for deletion, the uploader has asked something along the lines of, "well, if I did this wrong, how can I make it so I can use this image?" More often than not, the answer is, "you probably can't".
Most images that you find on the internet, as nice as it would be to use them, are just off limits.
Corollary: consensus can't override image use policy.
Image deletion discussions are a bit more informal than those on AFD. One of the big differences is that AFD is largely examining subjective criteria. There are some hard and fast guidelines, but frequently, there are pages that fall into the "in between" area. But images are almost completely black and white. The image either is taken from a particular source or it isn't. It either meets the criteria or it does not.
What fair use is
"Fair use" is the recognition that we can use a particular work (usually a photo) for commentary on either the work itself or about the creator of that work. It is codified in the law and is not something made up by Wikipedia.
As a non-profit with a mainly educational mission, we could probably get away with using a heckuva lot of things, but have a policy that is more strict than what is permitted under the law. Our goal is to be a free-content encyclopedia, not a clearinghouse for copyrighted images.
At a fundamental level, "fair use" gives me the right to quote from Star Trek when writing an article about it. It gives me the right to use a screenshot from a Star Trek DVD when talking about the movie. It does NOT give me the right to take a screenshot of Sulu with a coffee cup in his hand to illustrate an article on coffee.
The "replaceability" criteria has gotten a lot of criticism lately, but really, if anything, our treatment of it is off the mark a little bit. Let's think back to the Star Trek example. If you give me all of the resources in the world, assume that I can be anywhere at any time and do anything, it is still patently impossible for me to ever create a "free" picture of a Star Trek episode. Even if I had been there on the set for the filming of an episode, my photo would still be a derivative of a copyrighted work.
That's what WP:FUC #1 is all about. There is no such thing as a free photo illustrating Star Trek. There is no such thing as a free Microsoft logo. There is no such thing as a free screenshot from a video game. In order to discuss any of those topics, I will either use a "fair use" image or none at all, but no amount of time and effort would ever allow something free to be created.
It isn't about whether a person is alive, dead, or in hiding. The whole discussion has gotten way off the mark. Copying a photo, even of a one-time event, and calling it "fair use" because it isn't replaceable just isn't consistent with the law or the intent of our own policy.
