User:Takethemud/Fair use

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I originally posted this on Wikipedia_talk:WikiProject_The_Simpsons. It's how I look at fair use and cartoon images on Wikipedia. Anybody should feel free to use it to justify images being fair use.

In judging whether use of copyrighted material is "fair use", courts look to four things and take various other policy considerations into account. I've listed those four things below and below them I've outlined my reasoning as to why use of cartoon images is fair use (including case reporter cites for the interested):

  • (1) Purpose of Use (Is it commercial or nonprofit?)'
  • (2) The Nature of the Copyrighted Work. (Fact or Fiction? Fact tends toward Fair Use)'
  • (3) The Amount and Substantiality of the portion used in relation to the copyrighted work as a whole.'
  • (4) The effect of the use upon the potential market for or value of the copyrighted work.'
  • Courts also look at policy considerations (Is the use productive? Does it promote creative expression as intended by the Copyright Clause of the Constitution?)
  • First consideration, the purpose of use: If it's nonprofit and educational, as opposed to commercial, it tends toward fair use. Is Wikipedia nonfprofit and educational? Yes, it is. Is Wikipedia commercial? No, it is not. Therefore, use of this image tends towards fair use.
  • Second consideration, the Nature of the copyrighted work: If it's factual it tends to Fair Use, if it's fictional, it does not. Courts have found photographs to be equally factual and fictional for purposes of this factor. See Nunez v. Caribbean International News Corp., 235 F.3d 18 (1st Cir. 2000). These images are like photographs in that they contain both a creative element (the art itself) but they also represent a fact (what a character looks like). I argue, then, that these images are neutral and therefore favor their fair use.
  • Third consideration: Amount and substantiality: The more that is taken from a protected work, the less it will tend toward fair use. However, with photographs, if any less than the whole image is copied then the image will become useless. Courts have found that when this is the case, this factor is of little consequence to fair use analysis. See Nunez, 235 F.3d 18. Because these images would be useless if we copied anything less than the full image, this factor is of little consequence to a fair use analysis.
  • Fourth consideration, effect on the potential market or value of the copyrighted work: Right now, there is no market for these images. The market is for the Simpsons cartoons - not images of the characters. We're not using video clips from the cartoons, we're using still images of characters. In order to find against fair use under this prong of the test, the harm to the market must be more than slight. Here, any harm to the market would be, at most, slight. If anything, I would argue, these images will tend to increase the market for the Simpsons cartoons and therefore benefit the market.
  • Also, there are some important copyright considerations to keep in mind: Courts will tend to find fair use of a work if it is productive, that is, if it enhances the benefit that the public derives from the earlier copyrighted work. Here, we are being productive - by including these images along with the encyclopedia entry, we are providing a benefit to the public in the form of a free online encyclopedia.
  • Courts also look to the underlying logic of the Copyright Clause of the US Constitution - it is to encourage creative expression. Here, use of these photographs encourages creative expression in that the Wikipedia community is creating an encyclopedia.

Of the four considerations taken into account, Three of them (purpose, market effect, and Nature of the work) support the finding that use of these images on Wikipedia as fair use. The other consideration (amount and substantiality) is of little consequence in this analysis. Thus, the four statutory considerations support a finding this is fair use. Further, the underlying policy considerations of the Copyright Clause and copyright law both support a finding that use of these images on Wikipedia is fair use. Based on these factors, use of these images on Wikipedia is fair use '

Put slightly more concisely: "Use of this picture in Wikipedia is Fair Use. It is being used for critical commentary, discussion, scholarship, research, and teaching. Evaluating its use further using the statutory factors in 17 USC ยง 107, I find the following: The use here is not-for-profit, which favors fair use; the original work is neither factual nor fictional for fair use analysis and that favors fair use; that a substantial portion of the work was used is inevitable due to its being an image and is therefore of little consequence for fair use analysis; and there is no adverse effect upon a potential market for the protected work, which favors for use. Furthermore, use of this image is productive as it enhances the benefit the work provides to the public, and it encourages creative expression on Wikipedia. Together, these factors support the assertion that use of this image is fair use."