[WikiEN-l] A very interesting recent "fair use" case ruling

Thu Jun 22 02:04:40 UTC 2006

Graham v. Dorling Kindersley Limited (decided May 9, 2006, U.S. Court
of Appeals Second Circuit), the ruling is worth reading in its
entirety: http://www.lessig.org/blog/archives/05-2514-cv_opn.pdf

It is a very interesting case and I find it very encouraging. The most
relevant aspects in respects to Wikipedia seem to me (non-lawyer that
I am) to be:

1. That moving a work into a very different context seems to be
considered transformative (i.e. from "expressive use of images on
concert posters" into a "biographical work"). Does moving an image
into an "encyclopedic work" make it "transformatively different"?
Under the court's argumentation here, almost certainly (accompanying
the images with textual material and creating something substantially
different as a whole than the original).

2. The Court takes the Kelly v. Arriba Soft Corp. and uses it to say
that reduced size reproductions of posters (or photos, presumably)
counts as using "less" of a work. That's a great thing to have ruled
somewhere, because otherwise the Kelly v. Arriba Soft left open a lot
of questions in that respect (i.e. since it was only for a search
engine and only dealt with very small thumbnails). The court's ruling
basically justifies our current policy in regards to size, that it
should be the smallest size possible in order to permit the
transformative purpose (in our case, to illustrate the article
appropriately).

Pending discussion, this would seem to me to point towards two
directions in policy: make more firm the "reduced size" requirement,
and liberalizing some aspects on how images are used in articles (I
would still rule against galleries and using them in lists for the
most part, but their use in relevant articles accompanying relevant
text would seem pretty assured to be transformative). Of course this
is not the end of the show (one court ruling does not determine
everything, but it does point to some relevant guidelines), but it
does give more confidence in certain assertions in respect to policy.

Other intepretations, thoughts, etc. on how/whether to use this to
guide any of our policies would be greatly appreciated.

FF