Wikipedia:Files for deletion/2007 June 4

:The following discussion is an archived debate of the proposed deletion of the media below. Please do not modify it. Subsequent comments should be made on the appropriate discussion page (such as the media's talk page or in a deletion review). No further edits should be made to this section. Delete — While the image is useful for the illustration of an important article it is not critical. The image itself, or the actions it depicts, are not specifically part of the commentary (so fails WP:NFCC#8). Additionally given that such an image does aesthetically improve the article I believe we are also falling foul of WP:NFCC#2 — traditional encyclopaedias would pay money to licence use of this image. Thanks/wangi 20:48, 20 June 2007 (UTC)[reply]

Image:Cogny Castries Navarre.jpg

Image:Cogny Castries Navarre.jpg (delete|talk|history|logs) - uploaded by Raul654 (notify | contribs).

• Originally nominated on May 7 and deleted by myself. Ruling overturned at deletion review with instructions to relist. Here's a summary of the arguments made so far (I'm cherry-picking from the previous discussions and it is not my intent to misrepresent the "keep" votes, so forgive me if I have done so):

Previous arguments to keep: "Adds significantly to the Dien Bien Phu article" (Raul654). It "depicts the command of one side of the very important battle" (AnonEMouse). "A picture of the command staff of the Battle of Dien Bien Phu ... simply can't be replaced by anything else" (AnonEMouse). "This specific image is necessary because it illustrates all three top commanders planning their battle plan" (Raul654). "As this image illustrates the person in the article Rene Cogny, and he is dead, and because it is impossible to find a free equivalent, it is nescessary for the article" (Zeus1234). "This is precisely the sort of thing fair use is for" (David Gerard). "It meets all of the Non-free content criteria" (Mgm).

Previous arguments for deletion: "It's not obvious to me why, in order to be understood, an article about a historic battle needs to be illustrated with a picture showing three men pointing to a map" (Abu badali). "Our use does not appear to be transformative" (Kotepho). "There is no commentary on the image whatsoever. We normally disallow magazine covers to be used when the cover itself is not discussed. This is exactly the same" (Howcheng). "Consensus can't trump copyright law. To use this photo under a claim of fair use, we would need to be offering some kind of critical commentary about the photo itself or a discussion of the topic would not be complete without including the photo" (BigDT).

Question raised during the DRV that remains unanswered: How does the use of this image in the article meet all 10 items of the Wikipedia:non-free content criteria, specifically items 2 and 8? --howcheng {chat} 21:27, 4 June 2007 (UTC)[reply]

• The DRV was wrongly decided. What we desparately need is a Jimbo ex Machina pronouncement for this class of image. You cannot use someone else's photo under a claim of fair use merely because it happens to depict something of interest. The vast majority of us (myself included) are not lawyers and asking us to make legal decisions is a horrible idea. The arguments at DRV basically amounted to "if I stick my fingers in my ears and hum, then it's not a copyright violation" or "they probably won't sue us so it's not a copyright violation". That's not an acceptable way to do business - this issue needs clarification from the foundation. As far as I am concerned, until I hear otherwise from Jimbo, the foundation, or a lawyer, use of this class of image is indefensible and constitutes copyright violation. Our use is not transformative. We are claiming fair use merely to not have to pay anyone royalties. This doesn't work. --BigDT 22:05, 4 June 2007 (UTC)[reply]
  • Wholly concur. We are using the image in the same way that its author presumably intended -- to illustrate text regarding the battle. This removes any competitive advantage that another venue that rightfully paid for the picture would have over Wikipedia -- a blatant violation of NFCC #2. howcheng {chat} 23:11, 4 June 2007 (UTC)[reply]
• Delete as not contribute significantly to the article. The article and its contents are not better understood by the image inclusion and/or the image is not cricial to the understanding of the article and its contents. It's a nice picture, and enhances the appearance of the article, but is not necessary. — pd_THOR ^{| =/\=} | 22:42, 4 June 2007 (UTC)[reply]
  • As an aside, as the picture was taken sometime in 1954, how long until it falls into the public domain? Is it dependent on when it was taken, or the publishing of The Undetected Enemy? Also, who took the original image? "Georges Boudarel"? I take it he was not in the employ of the U.S. military at this time? — pd_THOR ^{| =/\=} | 22:42, 4 June 2007 (UTC)[reply]
    • According to French copyright law, it is PD 70 years after the death of the author. --BigDT 23:02, 4 June 2007 (UTC)[reply]
• Delete Unfortunately, I can't see anything complementary or transformative in the use of the photo here. Unless somebody can identify that for me, I think BigDT nailed it in the deletion review when he wrote: "To use this photo under a claim of fair use, we would need to be offering some kind of critical commentary about the photo itself or a discussion of the topic would not be complete without including the photo. For example, when you see Kent State shootings, you instantly think of the Pulitzer photo. No discussion of that topic is complete without the photo. But this one? There's nothing iconic - it just happens to depic the topic. We cannot use this image under the law". Jheald 01:51, 5 June 2007 (UTC)[reply]
• Keep, for the same reasons discussed at great length before. As David Gerard said, "This is precisely the sort of thing fair use is for". It seems like the people who want this deleted are just going to keep nominating it until they get a result they want, seeing as how both previous noms clearly favoered keeping it (one of them unanimously). Raul654 02:14, 5 June 2007 (UTC)[reply]
  • What exactly is it that you think fair use is for? It is not blanket permission to use something just because it is useful. If this is the sort of thing fair use is for, what is this? Fair use allows us to use the work of another when it serves the greater good - when our use of it creates something new or useful - it adds something creative that wasn't there before - it is "transformative". That is what fair use is. But our use of this photo adds NOTHING to the photo. We aren't expounding on it. We aren't writing an essay on it. We are purely using someone else's photo without permission because it happens to depict something that is borderline related to our topic. That's not what fair use is for. The SCT has ruled that we must "consider not only the extent of market harm caused by the particular actions of the alleged infringer, but also whether unrestricted and widespread conduct of the sort engaged in by the defendant would result in a substantially adverse impact on the potential market." If everyone felt free to use photos of this kind without paying royalties, then there would be no photo licensing fees. Our use doesn't come close to meeting anyone's standard and if IFD and DRV can't see that, then both are broken processes and copyright issues should be removed from both venues. --BigDT 03:09, 5 June 2007 (UTC)[reply]
    • To be clear, the result of the DRV was to relist on IFD. This is not about nominating it again just to get the result I want. I could ignore this if I really didn't give a fuck but unfortunately (or fortunately, depending on your perspective), I do. howcheng {chat} 05:33, 5 June 2007 (UTC)[reply]
• Keep - image is clearly satisfies the requirements of fair use. Image of is of a historic event. Image is used to illustrate the the subject of the article. The usage doesn't detract from the potential marketability. It also satisfies our own internal requirement that there is no possible way to create a satisfactory free-use version of the image. ---J.S (T/C/WRE) 04:02, 5 June 2007 (UTC)[reply]
  • How? Saying it doesn't make it so. Of the four tests given in fair use#Fair use under United States law, we clearly fail #1. Our use is not at all transformative. I think we also fail #4 - marketability. The question, as I pointed out in my previous post, is not only the effect that our usage would have on marketability, but what effect widespread use of the same kind/purpose would have. The photo is only useful to people writing historical books/articles and so widespread use would negate any marketability of the image. This isn't anything new. If our policy and procedures don't recognize use of this image as infringing, then both are broken. --BigDT 04:11, 5 June 2007 (UTC)[reply]
    • Neither this nor the previous nomination has ever been about whether the image is replaceable -- I'll certainly stipulate that it's not. It's about two issues: infringing on the market value of the work as well as the necessity of the image in the article -- in other words, without the image, is the reader's understanding of the topic impaired? Those two concerns are exemplified in WP:NFCC #8. Nobody has made even a real attempt at explaining why the image is necessary. We delete magazine covers all the time when they're just used to illustrate the text, "So-and-so appeared on the cover of such-and-such magazine." This case is exactly the same but it's become kind of a cause célèbre, probably because the uploader is one of the most highly respected Wikipedians around. howcheng {chat} 05:33, 5 June 2007 (UTC)[reply]
• I don't normally like to argue from case law because IANAL and the NFCC are intentionally more strict than the law allows, but here's something I nicked from Wikipedia:Administrators' noticeboard/FURG#On the subject of the character of use of fair use in articles: "In Folsom v. Marsh, 9 F.Cas. 342 the circuit court stated in its ruling "it is as clear, that if he thus cites the most important parts of the work, with a view, not to criticise, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a piracy". Further, it states "There must be real, substantial condensation of the materials, and intellectual labor and judgment bestowed thereon; and not merely the facile use of the scissors". It seems from this ruling that it is insufficient to simply cut and paste material from one location to another and call it fair use. One must have a purpose relating to the use of that image that requires intellectual labor and judgment." (Written by User:Durin) --howcheng {chat} 18:49, 6 June 2007 (UTC)[reply]
  • The quotation is not relavant to this discussion. This picture's use in the Dien Bien Phu article article does not supersceed the use of the original copyrighted work (in this case, the book in which this picture was published), nor is its use in the article to criticize the picture itself. The picture is being used to supplement an article describing the event which is depicted in the picture. A more relavant case would be this one, where it was determined that using a copyrighted image (in that case, a grateful dead poster) in a book about the grateful dead was indeed fair use. Furthermore, we have an even better claim to fair use, because we are not doing it for profit, which is huge major factor in deciding the outcome of these cases. Raul654 18:56, 6 June 2007 (UTC)[reply]
    • The original copyrighted work is not the book in which the photo appeared, but the photo itself. Also, your words are telling: The picture is being used to supplement an article describing the event... This has been one of the main points for deletion, that the picture merely adds to the article. Take away the picture, and the reader's understanding is not compromised one bit. howcheng {chat} 20:31, 6 June 2007 (UTC)[reply]
      • Wrong. This case established that fair use exceptions to the copyright (generally) attach on publication. Title 17, Chapter 1, Section 107: "The amount and substantiality of the portion used in relation to the copyrighted work as a whole". On publication, the copyright attaches to the entire work - the book, not the picture. Raul654 20:35, 6 June 2007 (UTC)[reply]
        • The author of the book doesn't own the copyright to the photo. Some guy took a photo. 20 years later, the author of the book called him up and said, "will you license me to use your photo" and he said "yes". --BigDT 20:41, 6 June 2007 (UTC)[reply]
          • We are excerpting the book. The fact that the picture itself may be covered by a separate copyright is irrelevant - the copyright applies to the work as a whole, not individual parts of it. If I write a book, each sentence is copyrighted; if someone quotes that sentence, I can't sue them claiming they are using 100% of the sentence; as the case I have already linked to established, it's in relation to the copyrighted, published work as a whole. Raul654 05:13, 7 June 2007 (UTC)[reply]
            • That doesn't make a bit of sense. If I write a book and use a photograph that you own the copyright to in my book, that doesn't mean that I own the copyright to the photograph. Sure, I own the copyright to the book, which includes the photograph, but I have no authority whatsoever to authorize a third party to reprint that photograph separately. Your analogy to a single sentence isn't relevant. In that case, the author of the book is creating the sentence. A better analogy would be that I publish a book in which I reprint a Time Magazine article. If you then want to reprint that same Time Magazine article on your website, I am not the person to ask for permission - I can't give you permission to use them and just printing someone else's work in my book doesn't give me rights to it. --BigDT 05:32, 7 June 2007 (UTC)[reply]
        • Exactly as BigDT says -- in this case, the amount of the portion used is 100% of the copyrighted work (the photograph). Even if the publisher had hired the photographer to take the picture specifically for the book and the photo was never published until its appearance in the book, it would still be covered under a separate copyright from the book itself. The only difference would be that the publisher would own the copyright instead of the photographer. howcheng {chat} 22:31, 6 June 2007 (UTC)[reply]
    • The Dead case is not on point - their was more transformative in that the image itself was significant. The event poster was of historical value. It would be like me creating a collage of campaign buttons then getting sued by one of the campaigns. Our case here would be more analagous to Yahoo news telling Reuters that they were going to start using Reuters photos without paying for them. --BigDT 20:41, 6 June 2007 (UTC)[reply]
      • Just because you say it is not transformative doesn't make it so. To wit - "Here, the district court determined that Illustrated Trip is a biographical work, and the original images are not, and therefore accorded a strong presumption in favor of DK's use." The picture's use in this context is clearly transformative. The article provides essential background to the picture, putting it in context. That is, by definition, transformative. At the same time, the picture itself greatly enhances the value of the article. Continuing further, "Because the works are displayed to commemorate historic events, arranged in a creative fashion, and displayed in significantly reduced form, the district court held that the first fair use factor weighs heavily in favor of DK." Every single criteria applies in this case. Raul654 05:08, 7 June 2007 (UTC)[reply]
        • We are reading the same PDF, are we not? If you'll allow me to quote, "In the instant case, DK’s purpose in using the copyrighted images at issue in its biography of the Grateful Dead is plainly different from the original purpose for which they were created" (p. 8). In this case, the photograph was created to document these individuals planning the battle. Isn't that the exact purpose of the photo in the article? To show them planning the battle? Furthermore, "the text specifically comments on the poster image" (footnote 3, p. 9). This is so not the case in the article, which still doesn't even discuss the photograph at all. howcheng {chat} 05:57, 7 June 2007 (UTC)[reply]

Greetings, all. I am an intellectual property lawyer. The use of this image is a clear copyright violation, and not a fair use. The fact that it is particularly useful to the illustration of an important article is irrelevant. See Harper & Row v. Nation Enterprises (public interest in comments by Gerald Ford on his pardon of Richard Nixon did not establish fair use of same). That we are a non-profit enterprise gives us no license to use the whole content of images produced by others as we see fit. Delete the image and contact the author to ask for a license or a release into the public domain. Cheers! bd2412 T 17:17, 8 June 2007 (UTC)

The above discussion is preserved as an archive of the debate. Please do not modify it. Subsequent comments should be made on the appropriate discussion page (such as the article's talk page or in a deletion review). No further edits should be made to this page.