[WikiEN-l] "Fair use" images of living people

Thu Nov 16 00:53:16 UTC 2006

The following is a discussion of the law, not of Wikipedia policy.  I
agree fully with Matthew Brown that these types of images shouldn't be
in Wikipedia.  However, I believe that many of these types of images
would be perfectly legal to use in Wikipedia.

On 11/15/06, Gregory Maxwell <gmaxwell at gmail.com> wrote:
> Secondly, I and many others (as well as our policy) have advocated a
> position that only our uses where we are actually discussing the
> "copyrighted work" and not something which the copyrighted work simply
> contains is actually covered by fair use.
>
> Careful consideration of the language of 17 U.S.C. § 107 as well as
> the legal, social, and economic motivations for fair use suggests this
> interpretation of the law. Furthermore, all the case law affirming
> fair use that I've seen has been around direct use (i.e. discussing
> the copyrighted work itself), and the substantial body of caselaw
> *denying* claims of fair use in parody are built around indirect
> parody (copy the work to make fun of something almost totally
> unrelated).
>
> I have not found a good example of a court saying you can't copy X's
> work to critically comment on Y... but I'm tending to think that the
> reason is because no one but us is foolish enough to try.
>
FWIW, I think you've got the law completely wrong here.  Fair use is
used constantly in US media in ways that aren't "actually discussing a
copyrighted work", and it usually doesn't lead to any lawsuits at all.
 But here's one case for you to look at, and a specific quote from
that case, which explicitly contradicts what you're saying:

Bill Graham Archives v. Dorling Kindersley Limited, Dorling Kindersley
Publishing, and RR Donnelley & Sons Company

"In some instances, it is readily apparent that DK's image display
enhances the reader's understanding of the biographical text.   In
other instances, the link between image and text is less obvious;
nevertheless, the images still serve as historical artifacts
graphically representing the fact of significant Grateful Dead concert
events selected by the Illustrated Trip's author for inclusion in the
book's timeline.   We conclude that both types of uses fulfill DK's
transformative purpose of enhancing the biographical information in
Illustrated Trip, a purpose separate and distinct from the original
artistic and promotional purpose for which the images were created.
See Elvis Presley Enters., Inc. v. Passport Video, 349 F.3d 622,
628-29 (9th Cir. 2003) (finding the use of television clips to be
transformative where "the clips play for only a few seconds and are
used for reference purposes while a narrator talks over them or
interviewees explain their context in Elvis' career," but not to be
transformative where the clips "play without much interruption, [and
t]he purpose of showing these clips likely goes beyond merely making a
reference for a biography, but instead serves the same intrinsic
entertainment value that is protected by Plaintiffs' copyrights"); see
also Hofheinz v. A & E Television Networks, Inc., 146 F. Supp. 2d 442,
446–47 (S.D.N.Y. 2001) (ruling that unauthorized inclusion of
copyrighted film clips in actor's biographical film was protected fair
use because the biography "was not shown to recreate the creative
expression reposing in plaintiff's  [copyrighted] film,  [but] for the
transformative purpose of enabling the viewer to understand the
actor's modest beginnings in the film business").  In sum, because
DK's use of the disputed images is transformative both when
accompanied by referencing commentary and when standing alone, we
agree with the district court that DK was not required to discuss the
artistic merits of the images to satisfy this first factor of fair use
analysis."

Repeating that last sentence, "DK was not required to discuss the
artistic merits of the images to satisfy this first factor of fair use
analysis."  I'll leave it up to others to provide more cites.