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	Fair use (inactive)
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Original market role?

Question: I know an educative website with some biographies of notable people. It uses photos to illustrate those biographies, and they are often non-free material. If I copy one of those images from THEIR biography into OUR biography of a given subject, am I replacing "the original market role of the original copyrighted material", as forbidden by WP:NFCC#2?

I understand how I would be replacing the original market role of a photo if I take a journalistic photo from (say) photo agency Getty Images and freely use it here, when Getty makes money exactly by licensing its photo for uses like ours. But when the image just belongs to an educative website, whose intent is to spread knowledge, am I damaging or helping them by reusing their copyrighted protected material?

(of course, assuming all other criteria on WP:NFCC are fulfilled, biography subject is dead, etc. ...) --damiens.rf 20:00, 17 July 2014 (UTC)

My evaluation of such an image would be based if they were selling those photos individually as just using them to augment the main "commercial" opportunity, this being the complete bio page, photos and text and all. In the situation you describe, I would think it fine to use such images (presuming all other NFCC aspects are met). --MASEM (t) 20:21, 17 July 2014 (UTC)

Woah, woah woah! You can't just throw out a blanket response like that. At the least WP:FREER in addition to WP:NFCC should be considered unless the image has fallen out of copyright. You can't just say, "oh someone used the picture this way, so it's ok for me to use it this other similar way". That edu website may have paid for the rights to host that image with no rights to reassign usage, or they may have been given an exclusive use right, or any number of possibilities. If there are any doubts, you need to contact that site directly and confirm the information about the photo before acting. BcRIPster (talk) 16:43, 18 July 2014 (UTC)

Sure, there may be those types of issues - that's the blanket that "all other NFCC aspects are met". If you use the picture from the school's website with the school expected to be the authoratative source (eg talking about a former, deceased dean), one is expected to have to scoured the website for any licensing details, including rights of the photo. If the person that made the website used a photo that should have been licensed differently (eg copyright belonging to a specific photographer), and they don't include that on the website, it is not our fault for making the normal presumption that the photo belongs the school and falls under their copyright. There is no requirement to contact for non-free/fair use use since copyright law nowaday automatically assumes copyright with publication. If the school published wrong and the photographer takes issue and can prove it was their photo and consider it a commercial product, then we fix that on our end by removing the image. This is why it is generally a good idea if a site is hosting an image without a by-line that seems odd for them to have access to, reverse image searching to find other sites - particularly Gettys/AP images - is good practice. --MASEM (t) 16:54, 18 July 2014 (UTC)

Ok, I think we're in agreement there, although I'm not as strong on the idea that someone would automatically assume that a photo posted by a school (sans notification) belongs to that school. I can think that almost assuredly it would be just the opposite. BcRIPster (talk) 17:01, 18 July 2014 (UTC)

Well, I mean, where there is a potential chance that a photograph is one that would fall into the issue of NFCC#2 (eg being a work that is meant to be sold for money) then yes, one can go and do that legwork. To mean, however, taking the case of photos of former staff of a school for example would have been done by a photographer as a work-for-hire if not done by the school itself, and thus not for the photographer to have images to sell individually (in the manner that press sources would do), so it's not much of a problem for us if the school's website neglects to mention the photographer (That omission is an issue between the photographer and school). On the other hand, take the case of the Kim Jong-Il article - people have attempted to pass off images of the leader from various random websites that do not mention a source for a photo, and this has been a case that nearly every one that has been attempted I can TinEye/Reverse Image Search to find the AP/Gettys or other wire service's original photo or some more reliable website that does us the photo but provides the proper documentation to the source. We have to use a bit of common sense. --MASEM (t) 17:16, 18 July 2014 (UTC)

@Damiens.rf: User:Masem is correct. Non-free media that meets all of WP:NFCC, can be used on Misplaced Pages. Specifically what you are talking about falls under WP:NFCC#2 and the long-standing consensus is that this particular point is intended to prevent use of materials where the purpose of the original source is to make money from the photo. This is why we do not allow photos from press agencies (as that is the source of income) unless that particular photo is the subject of the article and it meets all of WP:NFCC. If you do intend to use a photo, you need to find the original source (not just the website it is currently hosted at.) If you have any questions about particular photos, you can ask at WP:Media copyright questions‎. Cheers, TLSuda (talk) 17:01, 18 July 2014 (UTC)

@TLSuda: and @Masem:, when WP:NFCC#2 mentions "commercial opportunities", does it means "opportunities to make money by licensing the picture" and just that?

If this is the long-standing consensus, we're done. But my worry was that, when we download a picture whose purpose was to illustrate Senator Denis Denovan's biography at Indonesia University Online Encyclopedia, and use it to illustrate Senator Denis Denovan's biography at Misplaced Pages, we are somehow making the Indonesia University Online Encyclopedia's website less valuable.

Don't fair use law says something about "transformative use", that we should use the work in a different way? Does it apply here? --damiens.rf 18:49, 18 July 2014 (UTC)

Transformative use means something completely different (see Univ. of Minnesota Law Library). I believe it applies to allow more items to be used as fair use when the original item is transformed significantly (like in a parody). In your situation that you described about Denovan's photo, we are not preventing them from making money, or taking away value. They sell the encyclopedia, and not the photos themselves. As long as the photos meet WP:NFCC we aren't hurting anyone by reusing them here. There is, however, always the option of approaching the original copyright holder and asking them to release the work under a free license. Cheers, TLSuda (talk) 19:10, 18 July 2014 (UTC)

TLSuda said it better than I could. --MASEM (t) 19:19, 18 July 2014 (UTC)

@TLSuda: a parody never works as a substitute for the original work, while our Donovan's biography works perfectly as a substitute for theirs. Isn't it what makes the parody a transformative use and not ours? --damiens.rf 17:00, 19 July 2014 (UTC)

@Damiens.rf: Sorry, I should explain better. Transformative use is not one of the four requirements of fair-use law in the United States. Its a later (1994) addition that can, possibly, sometimes, allow for use under fair-use, even when the item doesn't necessarily meet the other requirements. We are not required to have a transformative use to use fair-use materials. Cheers, TLSuda (talk) 17:03, 19 July 2014 (UTC)

Actually, we do capture the transformation use to a degree by NFCC#9 (requiring content to be used on article space as to at least be alongside education text) and NFCC#8 (requiring more than just decorative use), if not other ways. By meeting NFCC we assume non-free images meet the transformative use of fair use law, but we have no special call out to otherwise describe that; in contrast NFCC#2 is specifically aimed to show that that fair use concept is met, and similarly NFCC#3 is aimed to reduce the non-free taking. --MASEM (t) 17:18, 19 July 2014 (UTC)

Hey Jimbo

In case you happen though here, I wanted to let you know that large numbers of Wikimedia/Wikipedia image editors don't know about these exceptions at all.

And telling them about this is almost futile--

As the other documentation on acceptable use of images claims that there are no exceptions whatsoever. Therefore when told about this page they don't believe it, don't look at it, and just aggressively start deleting.

I am talking about images of dead people, not living persons.

Also-- there really should be specific examples written out here, because those editors (who do actually read about the exceptions described here) can't figure out how to apply it.

Appreciatively,

Cliffswallow-vaulting (talk) 05:41, 10 August 2014 (UTC)

You have to be more specific what images you think are being deleted outside of the allowances here. Remember that while WP:NFCI (a list of allowable examples) is there, all conditions at WP:NFCC must be met, so just because the image is of a deceased person doesn't mean it is immeiately allowed. --MASEM (t) 06:14, 10 August 2014 (UTC)

If you want Jimbo Wales to "happen through here," you should ping him via WP:Echo like I just did in this sentence. Flyer22 (talk) 06:18, 10 August 2014 (UTC)

• Looking at Special:Log/Cliffswallow-vaulting, I see no uploads at all by this user. The complaint therefore doesn't seem to be about files uploaded by the user himself. --Stefan2 (talk) 10:34, 10 August 2014 (UTC)

@Cliffswallow-vaulting: if you are referring to c:File:J. Frank Raley, Jr., Maryland politician;.jpg, the problem was that you uploaded it to Wikimedia Commons instead of here on Misplaced Pages. Commons is a repository for free media and does not accept non-free/fair use content (see c:Commons:Fair use). January (talk) 11:16, 10 August 2014 (UTC)

Thank you so much! Are you saying that Misplaced Pages will accept fair use (as opposed to Wikimedia)? If so, is there anything I need to pay special attention to?

Cliffswallow-vaulting (talk) 11:51, 10 August 2014 (UTC)

Misplaced Pages accepts fair use content that meets all of the criteria. However, an image of a deceased person is usually only accepted as fair use in an article about the pictured person, the image that was deleted from Commons was being used in St. Mary's College of Maryland where it is unlikely to meet WP:NFCC#8. January (talk) 12:06, 10 August 2014 (UTC)

Thanks for the explanation! Well, I will upload his picture and it put it back into the article about him then.

Appreciatively,

Cliffswallow-vaulting (talk) 12:52, 10 August 2014 (UTC)

P.S. Thank you all for the help! And thanks to Jimbo not just for this, but also for Misplaced Pages & Wikimedia!

Sincerely, Cliffswallow-vaulting (talk) 17:55, 10 August 2014 (UTC)

Hi,

I have one last question just in case anyone still has this on watch.

With the "Fair Use" J. Frank Raley photo (mentioned above), it was pointed out it could well be acceptable as a Misplaced Pages image for the article about him.

But one last point about the St. Mary's College of Maryland article-- J. Frank Raley is effectively the founder of the school--

It was a tiny Junior College before and he led a state campaign that greatly expanded it into a four-year college with far more students.

Not only that, but--

Then he was president of it's board of trustees for 30 years, under his leadership the school then rose to being ranked "5th in the Nation" (for public colleges) by U.S. News and World Report.

Would those facts allow for use of the "Fair Use" image of him on the St. Mary's College of Maryland article as well (if supported by quality citations)?

I'm not arguing the point, just trying to see what you think.

Thanks,

Cliffswallow-vaulting (talk) 17:07, 11 August 2014 (UTC)

No, if we have a separate article on the person, the link to that article from the College's page would let the reader to see the person, but we would not allow that person's picture to be used on the college page that way. --MASEM (t) 17:30, 11 August 2014 (UTC)

Ok. Thanks for the info! :-)

Cliffswallow-vaulting (talk) 17:43, 11 August 2014 (UTC)