Utilisateur:Alexei756/Wikipédia:Fair use des images

All material submitted to Wikipedia must fall under several copyright categories(if it is in the public domain there is no copyright): public domain reference added Oct. 2, 2003

1. GFDL original material
2. GFDL licensed material that you have copied from another source
3. Material you have submitted for which the author has given permission
4. Material that can be posted and used under the principle of fair use

This article examines in detail the exception of fair use in the above context as related to the use of small thumbnail images in encyclopedia articles.

The general rule

Generally speaking a submission must be licensed under the GFDL. This can happen in three ways:

(1) if you are the author then you submit it and this means you have licensed it under the GFDL, or

(2) it can come from a source that is licensed under the GFDL, this allows you to bring it into Wikipedia under the same terms as you release your own work here (note if you do import or translate it — even from another Wikipedia — you must preserve the names of at least five of the main contributors of the work and a link to the relevant page history under the terms of the GFDL), or added italic section October 2, 2003

(3) you are submitting it because you obtained permission from the author to use it on Wikipedia under the GFDL (be sure to cite this permission somewhere, it may later be necessary to prove that such permission was given).

The fair use exception

This leaves fair use; the one other category that may in rare circumstances be used for text, (i.e. short quotations from well-known works) but is more likely to be used for images such as photographs, drawings, maps or other informational depictions that may help an article to be more understandable to others. Some Wikipedians do not favor fair use at all, their opinion is that you should either create it yourself or do not post it on Wikipedia. Others see it as being compatible with informational basis of Wikipedia (remember that information or pure knowledge can never be owned, copyright laws only extend to the expression in a work, never to the underlying knowledge in that work). These users see Fair use as something that can and should be used especially in the development of a world-wide encylopedia of knowledge that can continually be updated and edited by anyone with access to a web browser. The focus being on information and not on artistic creativity per se.

Remember that fair use means that if a work has copyright under United States law fair use allows it to be used without permission. If someone accuses you of infringing upon their work, fair use allows its use for certain limited purposes. They can apply to a court to prevent your use and you will then have the burden of showing that your use is fair (equitable) and does not unduly burden the legal rights which the copyright owner has over their work.

If you believe that using an image is necessary (and perhaps unavoidable) to complete an article and you wish to use an image on Wikipedia according to the fair use guidelines as stated in sec. 107 of the United States copyright law (Title 17 United States Code) it is important to remember that such "fair use" is dependent upon your use of the image in an article in Wikipedia. You cannot merely state that an image is "fair use" because you see it as being informational or that it depicts someone who is well known. You must always keep in mind the rights of the author of the image, for it is their rights that you must be concerned with and this page is here to try and help you understand in what circumstances you might use the work of others in the Wikipedia GFDL context without infringing upon the creator's rights.

fair use analysis

The provisions that deal with fair use enumerate four factors and there is no clear determination that can be made about fair use without seeking a declaratory judgement of a United States District court judge in the United States where Wikipedia's server is located. That would be a process which would, indeed, be very expensive and time consuming even if one were living across the street from one of the many federal district courthouses found in the United States. For someone living in a francophone country the access to these courts becomes very problematic to say the least!

However, please do not let this scare you! Even though you do not have access to the legally binding decisions of such a judge the law allows Wikipedia to post images that are reasonablely within the perimeters of fair use. If a copyright holder feels that their work has been infringed, they can provide a legal notice to Wikipedia's designated agent to have the image removed. Since you posted the image you will be informed that the image is removed and you will have ten days to provide an argument that your image use is not infringement. Providing a fair use rationale is a way to show that your image use is not infringement. Some editors/volunteers on Wikipedia will also be reviewing images posted and in an attempt to make sure that Wikipedia is not posting infringing images they will also be concerned that you have provided a rationale that demonstrates that you have a reasonable belief that there is a basis for claiming fair use for your use of the image in an article that you have otherwise written or contributed to (the image may be the only contribution you make to an article, that is enough). link to w:en:designated agent added on October 2, 2003

Try getting permission first

So, you have found an image and it appears to be copyrighted by someone or some entity. First, you might try and get permission to use this image. After all, it is a small thumbnail that could not really be reproduced for any singificant purpose. Perhaps the photographer, painter, or other artist that created it will find some joy over having the small thumbnail posted on Wikipedia. They may even embrace the GFDL and start contributing more images! What joy! However if the copyright holder doesn't respond or refuses to give permission do not dispair and abandon all hope! You can now take a piece of paper (or open a word processor window on your computer screen) and consider the factors as stated in the law and see if the use you contemplate is so fair as to allowable by even the most stingy of American federal district court judges).

Analyzing the factors

So, now let us turn to the factors (you might want to read or make a copy of the text of § 107 of the copyright law on the fair use page before proceeding):

The preamble purposes

First: consider the preamble purposes, are you using it for a critical purpose, i.e. does it show something that is relevant to something that the article discusses that not everyone agrees with? Or does the image help in some kind of comment regarding the article, i.e. it adds something that the text alone cannot demonstrate. Does it add something to the scholarship of the subject when placed in the article (demonstrating some visual characteristic of a visually depicted physical phenomenon? Or is it something that is research that adds to the article (a rare image of some rare phenomenon for instance).

Factor one: purpose and character of use

Once this preamble purpose is clearly articulated one can them examine the four enumerated factors of the fair use statute. First: what is the purpose and character of the use, i.e. it is in an educational encyclopedia. Also consider possible other GFDL uses that the image may be placed in regarding this factor. If it is a commercial use then the question becomes does it prevent or limit the copyright owners ability to exploit the image? If the image is a large poster, a small thumbnail may be a very significantly different use that the uses contemplated for the original by its creator.

Factor two: nature of the copyrighted work

Second: consider the nature of the copyrighted work. Is it a photograph by a journalist that is published in a magazine, journal or newspaper? Is the image very generic, i.e. can anyone go and take a picture of that building or that place and is the photo taken from a standard angle, or are there artistic elements displayed in the image that are the signature of that artist as a unique and well known style? Is the artist known for the style of her images and is this style integral to the work but not to the contemplated use of the image? Is the original work of very high resolution? Is the contemplated image only part of a larger image or larger work (such as a screen shot or the cover of a videotape, CD, or poster)? Is it just the image of the facade of a building that anyone could have taken from street level directly in front of the building (a very weak claim to any creative element) or is it a mechanical reproduction of something like a painting that is in the public domain (also a very weak claim to the originality requirement of copyright)? Is it a photo taken at a public event that was documented by many journalists and the image you are using looks similar to many other photographs taken by many other individuals? The more you can think about these factors and try to articulate them the more you will be able to understand the nature of the creator's claim for strong copyright protection, if any.

Factor three: extent of adaptation of the original work

Third: is the amount of the image that is use a small portion of the image in relation to the whole of the creator’s original work? Is it of the same resolution or a limited resolution that would prevent further meaningful copying? Is it a small part of a larger image that may not even be clearly tracable to the original image?

Factor four: consequences on value and marketability of original work

And finally, what is the effect of the use of this image. Will using it in Wikipedia and other GFDL works detract from the work and make it less valuable or will it increase the market value of the cited work, i.e. is using the work giving it publicity that will make it more valuable in the form that it is now or may later be offered in the marketplace? Or will posting the image thumbnail prevent others from acquiring the image through commercial channels? Is the work widely available and is the image used in many other publications as fair use? Or is the image unpublished and is the copy providing some unique element that adds to the contemplated use of the image?

Examine the totality of the above factors

Examining all these factors together can give a view of the totality of effect of these fair use factors, they should be listed in a systematic manner so that someone can later review these diverse considerations. Clear documentation is essential to convincing others of your claim to a fair use of your image. If possible such a record should be incorporated into the article in which the image is displayed and reference to such factors (and such a description) on the image description page so future users will have some understanding of the analysis you have undertaken before deciding to deposit the image into a another Wikipedia article. You can use the hidden text technique: <!-- place hidden text here between these symbols and it will disappear --> . a replaced with another Oct. 2, 2003

What about images that are not so described?

The question arises, what if someone has posted an image and has not provided such fair use information? Should the article be deleted tout-de-suite? Or is that throwing the baby out with the bath water? Well, yes, it is a question of policy to be sure. What is being recommended here is the following: If you think that the image is important, necessary and serves and important purpose in relation to the text of the article such that it adds meaning to the article try to think about a fair use argument. After all why would anyone object to having a small (under 250x500 px) thumbnail being used in such a educational and non-commercial way. It is probably good exposure for the creator's work! In such a case feel free to adopt the image as your own and provide the same analysis as has been reviewed above if the original person who posted it seems to have lost interest in the image or is otherwise unavailable to defend its fair use.

Should all copyrighted images be listed as fair use

If you see no reason for the image being in an article, you should list it for deletion on the Wikipédia:fair use page. In such a maybe another volunteer will take this poor image and seek to adopt him or her under thefair use doctrine, for a fair use image on Wikipedia, well documented, cannot harm the GFDL text or anyone else (when undocumented it is very hard to trace). While there may be times when someone using Wikipedia material may have to remove a fair use image because their contemplated use does not fit within Wikipedia's fair use, most, if not all encyclopedic subsequent uses will be covered by the fair use that is available here at Wikipedia. You or your colleague have found a home for the poor image that might otherwise be lost unattached to an article that gives it more meaning and significance. Remember that if someone copies a Wikipedia article they will check to see if the image is fair use or in the public domain. If you have posted detailed and precise information on the image description page they can decide to use the image or discard it because they feel that their use is not fair use. Don’t be paranoid about copyright and don’t let fair use scare you. It is there to make knowledge more accessible and to complete the knowledge base that Wikipedia is trying to develop. Underlined sentence on relationship between GFDL and fair use added on October 6, 2003)

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Version en français déplacé à Wikipédia:Fair use des images.