Wikipedia:WikiProject Fair use/Fair use rationale

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This page is a description of stock "fair use" rationales for use with "fair use" copyright tags on the English-language Wikipedia. If the "fair use" tags are correctly applied to images, these descriptions should be accurate in describing the claims Wikipedia would make as to the "fair use" status of said images were they taken to court.

All of these claims only apply of course if the images are properly tagged. Since Wikipedia is a large site edited by large numbers of users, most of whom are not familiar with United States copyright law but are editing in good faith, not all images may be properly used or tagged.

Notice to copyright owners: If you believe Wikipedia is infringing your copyright, you may choose to raise the issue using Wikipedia:Request for immediate removal of copyright violation. Alternatively, you may choose to contact Wikipedia's designated agent under the terms of the Online Copyright Infringement Liability Limitation Act.

[edit] General rationale

For images labeled with {{fairuse}}.

The Copyright Act of 1976, defines four factors to consider when deciding if the copying of a copyrighted work is fair and allowable without the consent of the copyright holder (17 U.S.C. § 107):

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. 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.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.[1]

In general, all such-labeled content on the English-language Wikipedia would ideally qualify because:

  1. The purpose of Wikipedia is primarily educational. It is hosted by the non-profit Wikimedia Foundation and derives no revenue from the copyrighted material on its servers. Its purpose is not to defraud or defame copyright holders. Any usage of any content in Wikipedia must be, as defined by other Wikipedia policies, "encyclopedic", and be of scientific, literary, artistic, or otherwise academic and educational merit.
  2. Any such media on Wikipedia ought to be a small part of the copyrighted material as a whole, and at the very least be of such inferior quality from the original that it could not be reasonably considered an acceptable alternative to the original.
  3. Where possible, the original copyright holders, when known, should be clearly marked, indicating both that Wikipedia does not claim copyright over the media in question, and allowing those who would seek to license the media or purchase copies of the media from the original copyright holder to legitimately and easily do this. Each image tag should be clearly marked to indicate that any other usage of the media, on Wikipedia or elsewhere, may in fact be copyright infringement.
  4. Ideally, none of the copyrighted media use on Wikipedia would be media which could be easily replaced or replicated with non-copyrighted media, and all of it would contribute to the overally encyclopedic goal of the project.

Above are only the most general rationale for Wikipedia "fair use" media. Below are more specific rationales according to designated categories of media and usage.

[edit] Media covers

For images labeled with {{albumcover}}, {{boardgamecover}}, {{bookcover}}, {{DVDcover}}, {{gamecover}}, {{magazinecover}}, {{TIME}}, and {{video tape cover}}.

Along with the general fair use rationale provided at the top of this page, covers of various media are thought to be "fair use" when used on Wikipedia to illustrate articles directly pertaining to the item of media in question, with reference to the fact that the image is a cover of a specific item of media. Along with the general rationale above, in these cases it is specifically thought because:

  1. The cover of the media is not the "content" specifically being sold by the publisher of the media, and does not pose a significant risk of defrauding the publisher (and in fact may encourage the increased legitimate sales of said media).
  2. Because the images are provided at a low resolution inappropriate for re-printing the media cover, their usage on Wikipedia does not pose a problem of aiding media piracy (the re-printing of covers to accompany with pirated discs or tapes, for example), or make it so that the copyright holder could not in the future successfully re-sell the image as a print or a poster.
  3. There are likely no "free" alternatives for the illustration of said copyrighted media which would not be themselves infringements on copyrights or trademarks. A low-resolution, correctly attributed image of the media itself, with its copyrighted status clearly indicated, is a better alternative than any other image, for Wikipedia's educational purpose.