Talk:Lutheran Church – Missouri Synod/Archive 2

Old Discussions
It seems that the LCMS logo has been added and deleted at least a couple of times. It does seem to me that including the logo on this page would not be a problem if the fair use tag for logos is used; I just did this for the LWML. While the LCMS is justifiably interested in maintaining its trademark, any previous legal action (to my knowledge) was against organizations attempting to adopt the logo cross (or a form of it) as their own. Revjmyoung 17:50, 21 February 2006 (UTC) logo


 * Dear John: Welcome! It is my understanding that the LCMS specifically objects to such usage. Its use here would violate copyright law because the use of a whole work in a publication like wikipedia is not fair use. --CTSWyneken 12:44, 22 February 2006 (UTC)
 * Copyright law says that if the owner wants to object it must do so to Wiki in writing. A church official can send the message right here to this Talk page. Rumors that it "might object" don't count because only the owner has rights in the logo. "Fair Use" means it is used in a noncommercial educational goal, to enlighten users about the LCMS in a nonpartisan way. Rjensen 13:18, 22 February 2006 (UTC)


 * Infringement happens when a party violates the exclusive rights of a copyright holder, whether or not they are notified. See [|http://www.law.cornell.edu/uscode/html/uscode17/usc_sup_01_17.html] For example, breaking into a person's house and stealing their jewels is a violation of the law whether or not the criminal is ever charged. It is wrong to break the law, whether action ever is taken. The law makes no such requirement for the action to be illegal. Only if the LCMS wants to sue does it have to notify anyone of anything in writing.


 * There is no rumor that the LCMS does not wish their logo to be used for publications other than those of the Synod or its member organizations. First of all, I am an ordained staff member of a Seminary of the LCMS, charged with copyright issues. Second, note the language at the bottom of: [|http://www.lcms.org/graphics/assets/media/LCMS/GraphicSheet.pdf]
 * Since the LCMS has taken legal action in the past against people who have misused the logo, we should take them seriously. No matter what rights we think we have, it is not morally right to act against the wishes of the creator of graphics.


 * Finally, see: [|http://www.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000107000-.html]
 * Which is the law governing fair use. The purpose of the use is only one factor. On that score, the best we have is "non-profit." Courts have strictly limited claims of educational use to institutions of elementary, secondary and higher education. Wikipedia does not qualify there. Factor two has to do with the kind of work it is. Since this is artwork, this factor fails to support a fair use defense. The third factor, amount copied, is the whole work. The fourth factor, effect on market, is not likely in play.


 * This use is likely, therefore, to be seen by a court as not fair use. So, we should not use it.


 * And this does not even get into trademark law. --CTSWyneken 14:28, 22 February 2006 (UTC)

Copyright: Fair Use
From 17 U.S.C. § 107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Trademark
I cannot find a registration for the logo but the Missouti Synod does have a pending application for the registration of the word mark "THE LUTHERAN CHURCH MISSOURI SYNOD". That does cover use of the artistic logo as well, but none of the uses for which trademark registration are being sought really covers Wikipedia's use, IMO.

My Two Cents
First, my standard disclaimer: IANAL and even if I were, this would not be legal advice, but I do have experience in Intellectual Property.

I don't see a trademark problem because the logo itself is, at best, a matter of common law trademark and the use is illustrative and doesn't appropriate or disparage the trademark.

As to copyright, though the entire work is being "taken," the non-profit and scholarly nature of the use makes it, IMO, almsot certainly fir use.

But let's be practical. Trademark or copyright or no, we would use it if the Synod thought it was OK, and probably remove it if it made them unhappy, simply as a matter of courtesy. Has anyone asked them? Now if we don't know their feelings on the matter, I, personally, would have no problem using it. As to a priori censoring ourselves in not using it in the scholarly manner we are, I see no point in that. As has been said, pending a definitive complaint from someone in authority to complain, we should use it but also attempt to contact the Synod with our concerns, as simple good public relations. -- Cecropia 15:39, 22 February 2006 (UTC)

Q. to Rjensen
Though I think it would be all right to use the logo, where do you get that copyright law says that we have to be notified (in writing no less) that we are infringing before we need to worry about it? Infringement occurs when you publish another's work, even if the author has no knowledge of the infringement. -- Cecropia 15:47, 22 February 2006 (UTC)
 * What I meant to say :) was: copyright law says we have fair use rights to use the logo for educational nonprofit purposes. The only one who can protest our rights is the copyright holder. Rjensen 23:59, 22 February 2006 (UTC)
 * The problem is with the definition of "educational purposes." Courts have found that to be limited to acredited schools. In the morning, I'll write to the LCMS to see what their opinion is. --CTSWyneken 01:31, 23 February 2006 (UTC)
 * Fair use involves "criticism, comment, news reporting, teaching scholarship, or research" that's Wiki!  But yes Wiki is an educational service--we are perhaps the single most used reference in schools.  Here's the federal law:

Federal Law: 17 USCS 1. Sec. 107. the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include-- (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work;  (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. Rjensen 01:49, 23 February 2006 (UTC)


 * Do you realize you just repeated what I already posted? -- Cecropia 03:07, 23 February 2006 (UTC)


 * Several issues are flying around here, so please be patient with me.


 * First, courts have decided that websites are publishers. As such, they fall into the catagory of profit or not-for-profit. In addition, courts have looked at "criticism, comment, news reporting" as strictly journalists and their activity. According to the courts, teaching, which they interpret from the later phrase "multiple copies for classroom use" means accredited schools and scholarship and research, copying for learning and for personal files.


 * Second, we are no more viewed as an educational institution than is a publisher reference books. The courts ask: what did congress mean, and that is what they've decided, no matter what we think.


 * If we were taken to court, the first factor might go to us, but only on the basis of the non-profit clause. This is small comfort, since in Intellectual Reserve v. Utah Lighthouse, a court found the latter non-profit website to be infringing.


 * Even if we win on that factor, the next is the nature of the work. Here's where I believe Cecropia and I disagree. I believe the art nature of the work protects it and that this factor would fall to a plaintiff.


 * The third we both agree on: we are copying the whole work. Amount and substatiality falls to the plaintiff.


 * The deciding factor is market. This one courts have weighed more than the others. Since we are not harming a potential market for the LCMS, this factor goes to us.


 * We have a tie. If we were an educational institution, the tie would go to us and all that plaintiff could collect would be actual damages. Practically speaking, we're not. We would be subject to treble damages. So tie goes to plaintiff.


 * But the best argument is actually Cecropia's. If they do not want us to use it, we shouldn't go out of the way to antagonize them. --CTSWyneken 02:27, 23 February 2006 (UTC)
 * The nature of the work is a symbol of the organization -- the "artistic" factor is pretty small for them and for us (do they sell replicas in art galleries? no). So we win. Rjensen 02:38, 23 February 2006 (UTC)


 * Nature has to do with what kind of thing it is. Is it a fact, like a telephone number, which is not even copyrightable, or is it creative, like an image, a poem, artwork. Here it is creative. Point to plaintiff.


 * In almost all cases, it is easiest and safest to ask permission. It is almost never worth it, as cecropia says, to do something against their will, especially in an article about them. --CTSWyneken 02:52, 23 February 2006 (UTC)


 * To chime in again, please Rjensen, do not be so fast to put your (our) own value on someone else's intellectual property. -- Cecropia 03:07, 23 February 2006 (UTC)


 * No, it is not. In almost all cases, it is easiest and safest to follow existing fair use practice. Your concern that this logo is not permissible due to a document issued by the copyright/trademark holder is actually highly unusual. There are hundreds of logos in use on the English Wikipedia, nearly all under fair use claims. If this one is somehow different, please state why. Every trademark holder in the world has a policy that their mark can only be used according to some list of rules. Why is the LCMS different? Simply because you've read their document?
 * If you believe that the Wikipedia guidelines regarding the use of logos are broken somehow, I suggest contacting the Wikimedia legal team. Please do not continually remove content from Wikipedia based on a layman's understanding of fair use law. Thanks. &mdash;ptk✰fgs 13:51, 27 September 2006 (UTC)


 * I will do just that. The copyright holder has explicitly forbidden the use of their property. There is no statute or case law that supports the use of an image against their clearly stated will. I shudder at the thought of what would happen if you did this to Disney. We've had craft show sweeps made my their lawyers. --CTS Wyneken (talk) 13:59, 27 September 2006 (UTC)
 * That is wrong. Fair use specifically does apply even if the owner does not consent.  They have no right to try to veto the law, no matter what they say.  Their wishes mean nothing as to whether we can use their logo without their permission.  And I'm glad you mention Disney, have you looked at that article lately to see their logo proudly and legally displayed at the top of our article.  Johntex\talk 21:15, 29 September 2006 (UTC)

Fair use of logo
I have done the best I can, and CTSWyneken does not seem to be willing to accept that there is any possible fair use of a trademarked or copyrighted logo. If no one else can persuade him here that presenting the logo here is a fair use of the image, I intend to open an RfC regarding the matter. The position that the mark owner has published restrictions on the use of the mark, and that we should therefore read and follow them, is a grave threat to fair use rights not only on the English Wikipedia but to all Wikimedia projects. &mdash;ptk✰fgs 19:38, 27 September 2006 (UTC)


 * Perhaps if you would cite case law or statute you would get farther. Instead, all you have done is said "we can."


 * For instance, see U.S. Code, Title 17, § 106. Exclusive rights in copyrighted works says: "the owner of copyright under this title has the exclusive rights to do and to authorize any of the following ... in the case of ... pictorial, graphic, or sculptural works, ... to display the copyrighted work publicly;"


 * Title 17, § 107. Limitations on exclusive rights: Fair use offers four tests for conditions under which an item may be used as a fair use defense in court: "(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work."

U.S. Courts have limited the first factor to accredited educational institutions, so Wikipedia does not pass the positive test under this factor, nor does it fail the negative one. First factor is inconclusive.

The nature of the logo is that of a creative work of graphic art, which courts have ruled works against fair use defense.

We are proposing to use the whole thing, so factor three fails.

While someone might argue that the commercial value of the logo is harmed by its use here, I suspect there is little impact on the market of the logo. One factor in our favor.

Most courts, I believe, would find against fair use and award treble damages, were there ever a suit on this one. (not likely, I think, though)

Perhaps there is case law I'm unaware of. If so, would you cite it please?

Perhaps there is a wikipedia guideline that says it is always right to do so against the express wishes of a copyright and trademark holder. If so, would you cite that please?

Or, pending that, I could ask several copyright law experts to give their opinion and weigh in.

So, now, show me where I'm in error, don't just say it. --CTS Wyneken (talk) 21:13, 27 September 2006 (UTC)


 * I firmly believe the logo is usable under the doctrine of Fair use I'm sorry I can't cite a specific court case and I am not giving legal advice here, but the very first sentence of our article on Fair use makes clear that the copyright holder's permission is not required. You can also read that permission is not required at legal sites like Stanford.
 * I did a quick Google search on "fair use of a logo" for you and I found this forum where two lawyers are giving advice on the fair use of a logo. I quote "For example, I can use the Honda trademark to describe Honda cars.  That's what the trademark is for."  This supports my understanding that we can use trademarked logos to represent what we are talking about in the article.
 * Permission of the owner is most definitely not required. Tp put it simply, the trademark owner can say whatever they want, but their say-so does not trump the law. In other words, they don't get to over-ride the fair use provisions of the law.  Johntex\talk 21:48, 27 September 2006 (UTC)


 * I appreciate that you believe this to be so, but all my background and training (I address copyright issues in my job weekly, if not daily) tells me it is not. I need more than a statement in a wikipedia article which is not authoritative in and of itself, to believe otherwise. --CTS Wyneken (talk) 19:05, 28 September 2006 (UTC)

Sorting out the issues

 * I think a few issues are being confused here, so let me see if I can sort them out:


 * The first question is whether or not the image (that is what a logo is, after all) Is copyrightable. I think we all would say, "yes."


 * The second is whether the Lutheran Church--Missouri Synod holds copyright in that image. The answer here is yes as well.


 * These being the case, the LCMS holds, according to U.S. Code Title 17, Section 107 has the exclusive rights to do and to authorize any of the following ... to display the copyrighted work publicly;"


 * Barring statutary exemption, they have the right, then, to grant or withhold permission. In their online guide (see above) the explicitly state that no one may copy this image without express written permission from the LCMS.


 * The next question has to do with exemptions. Congress and court rulings have allowed a number of such exemptions (libraries can make archival copies of items without permission of the copyright holder, for example), the most well-known of these being fair use.


 * So, now, we have to ask, on what grounds is making a copy of an image and placing it on the open internet, in a location favored by the major search engines, likely to be ruled fair use.--CTS Wyneken (talk) 13:36, 28 September 2006 (UTC)


 * Is that a fair summary? --CTS Wyneken (talk) 13:19, 28 September 2006 (UTC)


 * I did a quick Google search on "fair use of a logo" for you and I found this forum where two lawyers are giving advice on the fair use of a logo. I quote "For example, I can use the Honda trademark to describe Honda cars.  That's what the trademark is for."  This supports my understanding that we can use trademarked logos to represent what we are talking about in the article.
 * Thank you for the reference. I do not know very much about trademark law, but I'm fairly conversant in copyright law. Perhaps we're mixing and matching. What I'm contending is that our use clearly does not meet copyright fair use tests. The first lawyer argues that the user of the logo is likely safe because most high schools are not likely to sue him, like they would if Disney did the same thing. He argues that the fellow is likely safe from trademark suits, but warns against the use of logos in promotional material. He ends with saying it's easier to get permission. I'm not sure where you get that he's saying using logos in this movie is fair use from a copyright perspective. In fact, the language seems to suggest he thinks the producer is taking a risk (a low one, though) that it is not.
 * The second lawyer suggests having a lawyer do research. I do not find that argument very comforting. --CTS</b> Wyneken <sup style="font-family:Andale Mono IPA; color:maroon;">(talk) 13:36, 28 September 2006 (UTC)
 * Permission of the owner is most definitely not required. Tp put it simply, the trademark owner can say whatever they want, but their say-so does not trump the law. In other words, they don't get to over-ride the fair use provisions of the law.  Johntex\talk 21:48, 27 September 2006 (UTC)


 * For me, the trademark aspect is not the issue (I know precious little about trademark law) It is copyright. Do you have a source that says such a use is fair use under copyright law? --<b style="font-family:Andale Mono IPA; color:navy;">CTS</b> Wyneken <sup style="font-family:Andale Mono IPA; color:maroon;">(talk) 13:56, 28 September 2006 (UTC)


 * Fair use does not require permission.
 * If it is fair use. That is the question. Where is there an authoritative source that says it is? --<b style="font-family:Andale Mono IPA; color:navy;">CTS</b> Wyneken <sup style="font-family:Andale Mono IPA; color:maroon;">(talk) 13:56, 28 September 2006 (UTC)


 * Additionally, we do not have any expressed objection from the mark owner. As you have noted before, you are neither the owner of the mark nor a legal representative of the mark owner.


 * How much more express can you get than an online statement that no one may use the logo without their written permission? Are you say that, unless somebody writes you a letter telling you by name that you can't, say, copy a piece of music fifty times and give it away to your friends that it is OK because they never told you specifically that you cannot do it? --<b style="font-family:Andale Mono IPA; color:navy;">CTS</b> Wyneken <sup style="font-family:Andale Mono IPA; color:maroon;">(talk) 13:56, 28 September 2006 (UTC)

Let's take a look at the four fair use criteria again:
 * 1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
 * Use of the mark on the English Wikipedia is for the purpose of illustrating and identifying the organization described in this article. It is for a nonprofit educational purpose.


 * As said above, the courts have ruled in copyright litigation the the educational purpose clause applies only to accredited educational institutions. Thus an independent, unaccredited internet project is not engaging in any educational purpose under copyright law. They are doing non-profit publishing. We cannot claim fair use under this factor.--<b style="font-family:Andale Mono IPA; color:navy;">CTS</b> Wyneken <sup style="font-family:Andale Mono IPA; color:maroon;">(talk)  13:56, 28 September 2006 (UTC)


 * 2. the nature of the copyrighted work;
 * The copyrighted work is a collection of images of a stylized cross, with and without logotype, in various color schemes.


 * You are confusing nature and extent here. The nature of the work is that of graphic art. As a creative expression, it holds greater protection than, say, a table of the population of the United States. --<b style="font-family:Andale Mono IPA; color:navy;">CTS</b> Wyneken <sup style="font-family:Andale Mono IPA; color:maroon;">(talk) 13:56, 28 September 2006 (UTC)


 * 3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
 * The use is relatively insubstantial. We use a low-resolution rendering of the logo image in only one of the available color schemes, in a bitmap form, and do not include the logotype.
 * The amount is 100% of the image. Substantial is used here not in relation to resolution, but is a term aimed at someone taking the essence of a written work, audio or video production. So, for example, in some jurisdictions, 30% of a mystery novel may be copied in terms of amount, but if that 30% tells you who did it, then it fails fair use on the grounds that the heart of the book was copied. In this case, since it it the whole work, it is also completely substantial. --<b style="font-family:Andale Mono IPA; color:navy;">CTS</b> Wyneken <sup style="font-family:Andale Mono IPA; color:maroon;">(talk) 13:56, 28 September 2006 (UTC)
 * 4. the effect of the use upon the potential market for or value of the copyrighted work.
 * The logos are available as a free download from the LCMS web site. We obtained them free of charge, just as anyone else would who wishes to obtain the logo. There is no impact on the market value of the copyrighted work.
 * It is not likely that there is an effect on the market, but some lawyers have tried to argue this point.


 * My analysis is that we fail to make a fair use case on three of the four factors and therefore the use is clearly not fair. --<b style="font-family:Andale Mono IPA; color:navy;">CTS</b> Wyneken <sup style="font-family:Andale Mono IPA; color:maroon;">(talk) 13:56, 28 September 2006 (UTC)
 * &mdash;ptk✰fgs 22:48, 27 September 2006 (UTC)

After more than a day of reading it, I can only conclude that your position is that wikipedia must comply entirely with the rules laid out in the LCMS trademark use PDF without any possibility for exception. It seems that your answer to any objection is that the document prohibits such use. As this is a non-falsifiable line of argumentation, it is no longer a productive use of my time to engage it in discussion in the absence of input from WMF.

I will open the RFC when I return from work this evening. Hopefully someone from the legal team at WMF will offer a comment. If there is no fair use possible when a "logo use rules" document exists, then there are at least a thousand articles which need immediate attention.

I must admit that I absolutely cannot even begin to fathom what your motivation in this matter could be. When WP can present relevant, valuable content under fair use, it is absolutely in the best interest of the project to assert that right, especially over the objections of copyright holders. &mdash;ptk✰fgs 18:07, 28 September 2006 (UTC)


 * My motivation is to keep us in compliance with the law. Fair use is the cornerstone of much of what I do each day. Misuse of this exemption threatens its existence as much, if not more, than not asserting it when legitimate. If it were fair use, I would defend it just as vigorously.


 * I do not understand, however, how you think that the absence of the logo here threatens anything. Are you saying that we can't write about the LCMS without it? There are plenty of ways in which fair use comes in legitimately. (quotations from published works, for instance) There are even more ways that we can employ the works of others and cite them without even coming close to infringement or even employing fair use. Leaving the logo off keeps us in compliance with the copyright law and honors the wishes of the copyright holder. Why are you bound and determined to thumb our nose in the face of the clear expression of their wishes.


 * It is not a matter of being able to put information here that is critical of the LCMS. You have a perfect right to do that. What you are asserting is that the LCMS can be made to appear to endorse that view and to do so with their own intellectual property. --<b style="font-family:Andale Mono IPA; color:navy;">CTS</b> Wyneken <sup style="font-family:Andale Mono IPA; color:maroon;">(talk) 19:29, 28 September 2006 (UTC)
 * No one would mistake a balanced encyclopedia article for something that was written by the organization in question. The logo of any organization is an important symbol and part of that organization.  To remove the logo from the article would deprive our readers of the ability to learn about that aspect of the organization. Johntex\talk 18:11, 29 September 2006 (UTC)
 * Adding a logo adds nothing to an article beyond imagery. Print encyclopedias manage without them. For example, the LCMS logo does not appear in the Encyclopedia Britannica article on the church body, either on or off line. Are you saying it is substandard? --<b style="font-family:Andale Mono IPA; color:navy;">CTS</b> Wyneken <sup style="font-family:Andale Mono IPA; color:maroon;">(talk) 20:51, 29 September 2006 (UTC)
 * Yes, actually, it is substandard if its article on the church does not include the logo. In that, regard, at least. Their article may have other advantages to ours, I don't know.  One problem with print encyclopedia's is that they have space constraints that we do not face.  Therefore, they may have had to do without the logo for that reason.  On-line resources often do use the logo of the subject at hand.  Print resources often do as well.  For example, the print version of the Wall Stree Journal often uses the corporate logos of the companies they are talking about.Johntex\talk 21:02, 29 September 2006 (UTC)

Seeking Outside Opinions
I see we may not come to many conclusions on this matter, so I'm going to ask a copyright expert or two to weigh in. The fellow who put the logo in this time has also contacted the Synod to see what they have to say in the matter. As things develop, I'll report them here and on Talk WP:logos. I'll leave my replies as I see them at this moment above. I think I'll back away from the discussion, then, until experts weigh it. May I suggest that we all look for authoritative sources to address the issue of using images on websites counter the wishes of the copyright holder? --<b style="font-family:Andale Mono IPA; color:navy;">CTS</b> Wyneken <sup style="font-family:Andale Mono IPA; color:maroon;">(talk) 13:19, 28 September 2006 (UTC)
 * You took the issue to Wikipedia talk:Logos and even tried to change that policy to prevent using images such as this. You got no support for changing the policy.  It is time to realize that use of this logo here violates no law or Wikipedia policy and that the editorial consensus is that it should stay with the article, just like similar logos on hundreds of other articles here. Johntex\talk 18:13, 29 September 2006 (UTC)
 * The opinions there are just those of wikipedians. They are not at all legal experts nor did they provide documentation of their viewpoint. I will relay the results of my requests for information when they arrive. I am not going to accept opinions counter all I've been taught on copyright, supported by my citations above, without such documentation or expertise. Are you prepared to produce such? --<b style="font-family:Andale Mono IPA; color:navy;">CTS</b> Wyneken <sup style="font-family:Andale Mono IPA; color:maroon;">(talk) 20:42, 29 September 2006 (UTC)
 * If you weren't prepared to accept the opinions of other Wikipedian's, then why did you seek them out by posting to a policy page? And why are you saying that you will file an RfC?  The whole point of an RfC is to solicit the opinions of other Wikipedians.  Any outside opinions from supposed legal experts will mean little.  For one thing, there is no practical way for anyone to even validate their credentials.  For another thing, given that you are yourself associated with the church, the people you contact may be attorneys belonging to or even hired by the church and therefore not unbiased in their views.  Thirdly, it is not up to people outside Wikipedia to decide what goes in a Wikipedia article.  Six people on this page along, plus others on the policy page, are all speaking in favor of the logos.  Johntex\talk 20:48, 29 September 2006 (UTC)
 * Another user said he would file the RfC, not I. I am prepared to accept the larger conversation. You are welcome to draw your own conclusions on the replies of copyright law experts, since the post is to the Coalition for Networked Information's Copyright forum. I will include the URLs with the replies. You can then google them, if you choose. In the end, if you all want to force your will and post the logo contrary to the wishes of the LCMS, and perhaps against the opinions (not legal advice) of respected experts, I'll not be able to stop you. At the moment though, given I have a challenge on the image itself and the instructions there are not to use it until the issue is resolved, I'd request you follow that policy. --<b style="font-family:Andale Mono IPA; color:navy;">CTS</b> Wyneken <sup style="font-family:Andale Mono IPA; color:maroon;">(talk) 21:16, 29 September 2006 (UTC)
 * Sorry, my mistake. I misinterpreted your remark and thought it was you filing the RfC.  My question still stands though as to why you are discouting the opinions of several people on this page and at the Talk page for WP:LOGO. Johntex\talk 21:21, 29 September 2006 (UTC)

Summary of argument against use of the Logo Cross
(copied from above for ease of reference. suggest the same be done below and that comments from all appear after that summary)


 * I think a few issues are being confused here, so let me see if I can sort them out:

The first question is whether or not the image (that is what a logo is, after all) Is copyrightable. I think we all would say, "yes."

The second is whether the Lutheran Church--Missouri Synod holds copyright in that image. The answer here is yes as well.

These being the case, the LCMS holds, according to U.S. Code Title 17, Section 107 has the exclusive rights to do and to authorize any of the following ... to display the copyrighted work publicly;"

Barring statutary exemption, they have the right, then, to grant or withhold permission. In their online guide (see above) the explicitly state that no one may copy this image without express written permission from the LCMS.

The next question has to do with exemptions. Congress and court rulings have allowed a number of such exemptions (libraries can make archival copies of items without permission of the copyright holder, for example), the most well-known of these being fair use.

Weighing the four statutary factors for determining fair use, wikipedia is neither a commercial enterprise nor an accredited educational institution, so it difficult to see how a court would find on the character of use factor. The nature of the work is a work of graphic art and thus weighs against fair use. The amount of the work is 100% and is substantial because it contains the whole substance of the work. This finds against fair use. The effect on market seems to be small, but some courts have found against fair use if any harm can be demonstrated. I think they would still find for fair use. So: one factor, undetermined. Two factors, against fair use. One factor for fair use. This use is not fair. Ask permission. --<b style="font-family:Andale Mono IPA; color:navy;">CTS</b> Wyneken <sup style="font-family:Andale Mono IPA; color:maroon;">(talk) 19:49, 28 September 2006 (UTC)

Replies
The whole point of Fair use doctrine is to allow use of material when the owner of the material has not given permission. The copyright owner does not have the ability to over-ride the law, and their opinion about whether they want the logo to be used or not is meaningless. (This is not legal advice.) Johntex\talk 14:17, 29 September 2006 (UTC)


 * You are missing the point. Fair use applies under a limited set of circumstances. If the use does not qualify as fair use, then you must have the copyright holder's permission. If it does, you do not need their permission.


 * My point is that the use is not fair according to the statute and case law. Since it is not fair, we need permission. --<b style="font-family:Andale Mono IPA; color:navy;">CTS</b> Wyneken <sup style="font-family:Andale Mono IPA; color:maroon;">(talk) 20:06, 29 September 2006 (UTC)
 * I think you need to read up on "nominative fair use". Nominative fair use  allows  the descriptive use of another's mark to describe or identify the owner's goods or services.  Basically, it says that one has a right to use a trademark to describe someone else's goods or services.  For case law, you might want to start with  New Kids on the Block v. News America Publishing, Inc., 971 F.2d 302 (9th Cir. 1992). (This is not legal advice.) Johntex\talk 21:00, 29 September 2006 (UTC)
 * Thanks for the reference. As far as I know, this is not a copyright law doctrine, but a a trademark ruling. My argument is on copyright provisions. --<b style="font-family:Andale Mono IPA; color:navy;">CTS</b> Wyneken <sup style="font-family:Andale Mono IPA; color:maroon;">(talk) 21:07, 29 September 2006 (UTC)
 * And what we are talking about is a trademark. Attempting to apply copyright law to a trademark makes no sense. You can't use only part of the trademark "Ford" or "IBM" if you are going to talk about them.  The words are just as much a trademark as the logo. Johntex\talk 21:13, 29 September 2006 (UTC)
 * It's an image; art work; protected by copyright. It is relevant. That's why this argument. If it were not a copyright issue, I would not be objecting at all. --<b style="font-family:Andale Mono IPA; color:navy;">CTS</b> Wyneken <sup style="font-family:Andale Mono IPA; color:maroon;">(talk) 21:18, 29 September 2006 (UTC)
 * An image used as a representation of a company/organization/product is a trademark and trademark law applies. Johntex\talk 21:23, 29 September 2006 (UTC)

Summary by Johntex
Logos are primarily protected by trademark law, not copyright law. In copyright law, the portion of the work being used is an important factor - this is not true in trademark law. A trademark serves to represent the brand/product/company it stands for. Using it to represent that product is the whole point of the trademark. The main legal question is whether the logo is used in an overly disparaging way or a way that is confusing to the consumer/reader. Their use as part of an educational work is certainly allowed under the law.

Reputable media companies (E.g. Wall Street Journal, USA Today and even Wikipedia) frequently use a logo to represent the brand/product/company represented by the mark. For Wikipedia examples see IBM or The Walt Disney Company or Altria Group (formerly Phillip Morris) or University of Texas at Austin or Symbols of Scientology. All of these Wikipedia articles, and hundreds more, use the logos of the subject they discuss. Wikipedia's legal counsel is certainly aware of the use of these logos and there use is allowed under Wikipedia policy. These are all potentially litigous organizations. If there was any real risk to any of them causing us problems over the use of their logos, I can assure you that our legal counsel would not allow us to follow our policy of using these logos.

The permission of the organization who owns the logo means nothing. There expressed objection, were they to make one (which they have not) would also mean nothing. There are many people/organizations that have articles here that prefer we not even have an article on them, but they don't get to veto having an article here or what that article says about them. (Above summary is not meant as legal advice.) Johntex\talk 01:54, 29 September 2006 (UTC)

Replies
I'll grant the argument under trademark law, since the editors who disagree with me are more familiar with it than I.

What I do know is copyright law does apply since the image was created in the 1980s and automatically protected under the statute. It applies to any intellectual property -- including my shopping lists. The logo is a work of graphic art and covered. Simply because we have gotten away with using logos without being sued so far does not make it right.

I'm open to seeing documentation that such a thing is fair use, but so far no one has brought that forth. I'm especially interested in what the Wikipedia legal staff can provide to bolster the confidence displayed in what I find a risky act. Until then, my background, training and experience tells me this is infringing as outlined above. --<b style="font-family:Andale Mono IPA; color:navy;">CTS</b> Wyneken <sup style="font-family:Andale Mono IPA; color:maroon;">(talk) 10:44, 29 September 2006 (UTC)
 * Since you seem to dispute that Wikipedia's long-standing policy is a safe policy, I think you need to go debate the policy at its Talk page. Your argument is not so much with this article as it is with fundamental Wikipedia practices.  As such, the discussion does not belong on this page. Johntex\talk 14:13, 29 September 2006 (UTC)
 * I took the discussion to WP:LOGOS talk page and was told it belongs here. In any case, the argument is about one image -- the LCMS Logo Cross. As an editor, I feel strongly it should not be here because the LCMS does not want it here and copyright law supports it. So I have removed it. Why folks with little interest in this article or its subject feel it necessary to contest such an action, I do not understand. I do not have the time to engage in a full-blown debate on the subject at a policy level, but will do so if necessary.--<b style="font-family:Andale Mono IPA; color:navy;">CTS</b> Wyneken <sup style="font-family:Andale Mono IPA; color:maroon;">(talk) 15:02, 29 September 2006 (UTC)
 * I think you may be too close to the subject. Your interest in this church may cause you to give too much credence to their wishes.
 * I also think you are mischaracterrizing the discussion that occurred at Wikipedia talk:Logos. By my reading of that discussion, which anyone may read at, you started out trying to get consensus to change the policy such that it would be against policy to use a logo against the wishes of the organization.  You failed to get even a single person to support changing the policy, so you came back here.
 * It is time to accept the consensus that our prevailing practice is to use logos in this manner, and that you have no consensus to support removing the logo from this article. Johntex\talk 17:55, 29 September 2006 (UTC)
 * The issue with me is copyright law. Given the same facts (knowledge that a copyright holder does not wish their work used without permission) I would argue just as vigorously. That my membership in this church body plays is that I am aware of the issues involved with the logo because of my affiliation. I have no way of knowing how, say, the Mormon Church would feel about the use of their logo.
 * It is far too soon to close this matter, especially when others who have worked to develop this page have not yet expressed their opinions and when a promised RfC is pending. In addition, I've requested opinions from outside copyright experts not affliated with either wikipedia or the Lutheran Church--Missouri Synod. In addition, I have challenged the image on its summary page and the person who last posted this image is seeking permission from the LCMS itself. At the moment, we have two of you contending for the logo and me contending against. This in and of itself is not a consensus. So let's see what other opinions come in.--<b style="font-family:Andale Mono IPA; color:navy;">CTS</b> Wyneken <sup style="font-family:Andale Mono IPA; color:maroon;">(talk) 19:35, 29 September 2006 (UTC)
 * There are more than 2 of us commenting in favor of the logo. You are forgetting about the people at . Johntex\talk 19:40, 29 September 2006 (UTC)
 * No, they are not commenting here, thus are not a part of the consensus here. They were commenting on my proposal to expand the standard. If they wish, they are welcome to come here and discuss this specific issue. --<b style="font-family:Andale Mono IPA; color:navy;">CTS</b> Wyneken <sup style="font-family:Andale Mono IPA; color:maroon;">(talk) 20:10, 29 September 2006 (UTC)
 * There are more than 2 of us commenting in favor of the logo. I count five of us speaking in favor of the logo on this page alone:
 * Revjmyoung "...It does seem to me that including the logo on this page would not be a problem..."
 * Rjensen "...Rumors that it "might object" don't count..."
 * Cecropia "...I, personally, would have no problem using it. As to a priori censoring ourselves in not using it in the scholarly manner we are, I see no point in that..."
 * ptk✰fgs "...There are hundreds of logos in use on the English Wikipedia, nearly all under fair use claims. If this one is somehow different, please state why. Every trademark holder in the world has a policy that their mark can only be used according to some list of rules. Why is the LCMS different? Simply because you've read their document? If you believe that the Wikipedia guidelines regarding the use of logos are broken somehow, I suggest contacting the Wikimedia legal team. Please do not continually remove content from Wikipedia based on a layman's understanding of fair use law.
 * Johntex - "The whole point of Fair use doctrine is to allow use of material when the owner of the material has not given permission. The copyright owner does not have the ability to over-ride the law, and their opinion about whether they want the logo to be used or not is meaningless."
 * It is disengeneous to ignore the people at who universally spoke in favor of the logo.  The whole reason I came to this page is because you posted there trying to change our policy to prevent using logos such as this.  You got no support, so now you are shopping the argument around on other pages.  You are forum shopping and it is not going to work.  Those people denied your charge that the logo is a violation of the law and they don't have to come here to repeat their comments.
 * Clearly, you are in the minority on this issue. The logo is allowed under law and policy and the consensus is that it should stay in the article. Johntex\talk 20:21, 29 September 2006 (UTC)
 * Note above that even though Cecropia thought it did not pose a problem to include the logo, he also said that, if the LCMS is unhappy with it, we should not post it, as a courtesy. This is echoed in the guidelines at WP:LOGOS. If we are going back in time, I am also not the first to remove it on these grounds. Even without asking others who have worked on the page, that does not count as a consensus. What's the hurry? Even given the general guideline that allows the use of logos in wikipedia, it is not a requirement that a logo be on every page possible. --<b style="font-family:Andale Mono IPA; color:navy;">CTS</b> Wyneken <sup style="font-family:Andale Mono IPA; color:maroon;">(talk) 21:05, 29 September 2006 (UTC)
 * That is not what Cecropia said. He/she said if the contacted us about it we would "probably" remove it.  That is a future prediction.  From the totality of Cecroia's comments it is clear he/she thinks the logo is used legitimately. Cecropia said "As to a priori censoring ourselves in not using it in the scholarly manner we are, I see no point in that".  Clearly he/she wants to use the logo unless we are specifically contacted directly about it by the church.  Given the list of names I have provided above, do you arree you were in error to say that only 2 people support the use of the logo? Johntex\talk 21:18, 29 September 2006 (UTC)
 * (outdenting) By next week, they may have done just that. The editor who posted the logo in the first place has contacted them and is awaiting a reply. I need to go now, so I'll leave you the last word. I do not suspect we're going to change each other's minds. I'll bring the results of my requests when they come in. Until then, let's let the matter rest. --<b style="font-family:Andale Mono IPA; color:navy;">CTS</b> Wyneken <sup style="font-family:Andale Mono IPA; color:maroon;">(talk) 21:22, 29 September 2006 (UTC)
 * Possibly they will protest through official challenges, possibly they won't. Either way, they have not done so to date.    Do you agree that more than 2 users here are in favor of keeping the image? Johntex\talk 21:26, 29 September 2006 (UTC)

Hi. "My name is Bobak, I'm a lawyer" --and only speaking to illuminate a few concepts of trademark and copyright IP issues, I respect the Legal disclaimer; think of this as academic description (since some of you may be doubting Thomases (this is the internet after all) please plug in 0346202 to confirm). I've taken courses purely on copyrights (CP) and purely on trademarks (TM) (they were fun, what can I say...). Here's the simple skinny:
 * Both can be effective at the same time.
 * CP has a term that doesn't expire for a long, long time; TMs last forever as long as they're kept moving (neither of these is an issue here, but it's good to get it out of the way).
 * Thus, with logos, companies and organizations can and sometimes do use both CP and TM arguements, but TMs are for the long run and require the more vigorous defense (because they last forever, the courts make sure that the owners defend them to keep such a monopoly).
 * A fundamental principle of TM is the value of the symbol as a respresentation of the company/organizationl: the TM is a symbol of all the work of a company/org to earn good will --thus anything that can create confusion (i.e. damage the power of the mark to the public with counterfeit inferior products; create brand confusion with a similarly named item in the same area; etc) is a target for a TM dispute. While the law forces TM owners to be vigorous in their defense, the courts are favorable to TM owners when there is this kind of TM infringement.
 * CP is far more cut and dry: a CP is a tangible expression of a creative idea. In the case of a logo, it's the mark.  If you use the mark without permission, you're infringing.
 * The entire concept of fair use was developed because people don't like their IP being used without their permission. Fair use cuts out reasonable uses for things like academia, education and other similar critical review.  The stated policies of a company against what the law recognizes as fair use isn't effective.  It would be like a company saying it approves of hiring discrimination --the courts don't run with that thinking (for obvious reasons). It also helps TM-owners from having to attack anyone using their logo.  The argument is valid against CP and TM --although it's far more commonly used in CP since a lot more CP works (writing, art, music) is used in fair use than mere logos.

Now what do I think? I'd rather not go on a long tangent, I more wanted to illuminate some general concepts that should direct thought processes on the subject. However, in my personal opinion, I think the general policies regarding logos on the Wikipedia website are pretty well founded. If anything I think fair use on this website is far too conservative (but that's because the Wikipedia Foundation doesn't have the deep pockets --or probably simply doesn't want-- to get into protracted litigation over defending its right to fair use). I've personally uploaded upwards of 50+ university and corporate logos for their own articles without even the slightest hesitation. I really don't see any problem using any logo or similar TMed symbol on an article that directly addresses the company/organization that is represented by the logo; the same goes for any copyright concern. Happy editing to all. --Bobak 19:41, 2 October 2006 (UTC)

Burden of Proof/Permissions from WP:LOGOS
"In the case of any dispute, the burden of proof is on the person who wishes to include the logo. When a logo is removed because of an objection on the part of the owner, no attempt should be made to re-insert the logo (except perhaps under very extraordinary circumstances, and only after extensive discussion). The other provisions of this policy are intended to cover ordinary, common-sense usage. When the circumstances are unusual and the use of the logo is in dispute, this policy should not be cited as weighing on the side of inclusion." --<b style="font-family:Andale Mono IPA; color:navy;">CTS</b> Wyneken <sup style="font-family:Andale Mono IPA; color:maroon;">(talk) 13:57, 2 October 2006 (UTC)


 * Please refrain from restoring the image until permission request is processed and further input on the copyright status of the image is brought here. --<b style="font-family:Andale Mono IPA; color:navy;">CTS</b> Wyneken <sup style="font-family:Andale Mono IPA; color:maroon;">(talk) 14:06, 2 October 2006 (UTC)
 * You are misapplying the policy. One person does not get to hold the article hostage in the face of numerous opinions to the contrary. We have met the burden of proof by providing numerous examples of how logos are used on Wikipedia, etc.  You jsut want to keep asking for more and more.  I don't think you will ever accept that the image is OK by policy and by law.  Also, we have received no "objection on the part of the owner" so the policy you quote above does not apply. I am restoring the image. Johntex\talk 16:52, 2 October 2006 (UTC)


 * Please stop disrupting Wikipedia to make a point. &mdash;ptk✰fgs 17:04, 2 October 2006 (UTC)


 * The objection from the owner is on their website. What I don't understand is why you are so eager to antagonize them. (see Cecropia's opinion above) This logo is not necessary to this article at all and should not be here. --<b style="font-family:Andale Mono IPA; color:navy;">CTS</b> Wyneken <sup style="font-family:Andale Mono IPA; color:maroon;">(talk) 17:10, 2 October 2006 (UTC)
 * As I have explained to you before, what they say on their website is irrelevant. Their wish does not trump the law.  They don't have the right to toss the law book out the window.  Their claim simply is not valid in the face of the law.  Wikipedia policy is to allow use of logos on articles such as this because learning about the institutions logo is a part of learning about the institution. Johntex\talk 17:20, 2 October 2006 (UTC)
 * It is not antagonistic to use the LCMS logo here, to identify and illustrate the LCMS in the article about the LCMS. This is a prototypical example of the fair use of a logo. Every non-stub article we have on a Lutheran organization includes an image of the organization's logo: Lutheran World Federation, Evangelical Lutheran Church in America, Wisconsin Evangelical Lutheran Synod.
 * It is not unusual at all for us to include fair-use logos of other organizations: Coca-Cola, Marlboro, Pepsi, Harvard University, McDonald's, Honeywell, Microsoft, CNN, Red Hat, Dell, Sun Microsystems, Cingular. All of these organizations have policies describing who may use their logos. None of those policies apply to the fair use of those logos here to illustrate and identify the organizations they represent.
 * If we were using the logo on an article that was critical of the LCMS, or an article about Satanism, or an article about disco fries, or in a userbox, that would be inappropriate and antagonistic. &mdash;ptk✰fgs 18:59, 2 October 2006 (UTC)
 * We'll have to differ on that. Using someone's property against their will is as antagonistic as it gets. As far as the law book goes, they have exclusive rights to the copying and display of their property. The burden under the law is to show that it is fair use. No one yet has provided evidence from the law or court action that supports that defense. So it is perfectly in their rights to ask that we request permission. All this is true even if you think it is fair use. --<b style="font-family:Andale Mono IPA; color:navy;">CTS</b> Wyneken <sup style="font-family:Andale Mono IPA; color:maroon;">(talk) 19:31, 2 October 2006 (UTC)

Ruling on Trademarks and Logos
I'm told that New Kids on the Block v. Gnat Satellite Information Network, 971 F2d 302 (1992), the court held that it is fair use to use the trademarked words of a mark, but that fair use did not cover the use of the image portion of the mark. Judge Kozinski referred to the precident of Volkswagenwerk v. Church, 411 F2d 350 (9th Cir 1969), in which the court held the defendant could use the words "Volkswagon" and "VW" in advertising their repair shop, but did not have the right to use the VW logo. I'm attempting to get a hold of a copy of the opinion. --<b style="font-family:Andale Mono IPA; color:navy;">CTS</b> Wyneken <sup style="font-family:Andale Mono IPA; color:maroon;">(talk) 13:10, 3 October 2006 (UTC)


 * A repair shop deals with cars, the product of Volkswagen. The confusion there is immediately pertinent. Wikipedia is not a Lutheran organization or a church organization of any kind. This is a waste of your time and everyone else's. Please give this up, there really is no reasonable position that claims the use of the logo here is not fair. &mdash;ptk✰fgs 13:14, 3 October 2006 (UTC)


 * But Gnat Satellite is not a music group. The court said the Volkwagen precident applies. The point the court is making, if the opinion is fairly summarized, is that trademark law alone does not apply to the image itself. My argument all along is on copyright law, not trademark law. It certainly is not a waste of mine time and, yes, there is a reasonable argument that it is not fair under copyright law. It would be easier to come to some sort of agreement if you will admit that other arguments do have at least something of a point. And, no, this is not a waste of my time. Copyright law is part and parcel of what I do for a living. It is vital that I get it right and I'd suggest the same is true for Wikipedia. If you all want to keep putting the image here in spite of serious objections, I cannot stop you. But I will continue to research the issue and bring the results here. Make of them what you will. --<b style="font-family:Andale Mono IPA; color:navy;">CTS</b> Wyneken <sup style="font-family:Andale Mono IPA; color:maroon;">(talk) 14:01, 3 October 2006 (UTC)


 * Honestly, you don't know what you're talking about. Your case cite is wrong: Here's the case you cited New Kids on the Block v. News Am. Pub., Inc., 971 F.2d 302 (9th Cir. 1992).  That case is an appelate court agreeing with the district court that the NKTB does not have a claim against newspapers who set up 900-number polls (for charity) to determine who their reader's favorite "New Kid" was.  Moving on to the VW-repair shop case, there's a black and white line there of commercial benefit that dilutes the trademark and misappropriates the good will of Volkswagon for the repair shop --again, that's a fundamental principle of TM that is not applicable to something like Wikipedia (for the reasons I stated above).  Please, please refer to the lengthy addition I made above before posting more cases that will not demonstrate groundbreaking ideas (unless they came out in the past year or so, and caused a revolution in TM law).  You seem to have a passion that would work well in law school, though, consider it ;-)  --Bobak 15:30, 3 October 2006 (UTC)


 * I'm trained theologically, so that should explain the passion part. 8-) Thanks for the link. The case cite was passed to me from someone else. (That explains why I couldn't find it easily) The point in the case, as it has been told to me, (I'll know more when I read it) is that the use of the text portions of trademarks and the image portion are separate issues. In both cases, defendants were, I'm told, not allowed necessarily to use the image portion of the logo.


 * What I've been arguing is not trademark law, which I do not have a grounding in, but copyright law, which I have to be grounded in for my role in creating online text and image databases. As I understand that arena, the use of the logo on our pages is not fair. Please see my argument above. No one here really has addressed my concerns at all, they've just said, "Well, you're wrong," "your arguments are not rational," and the like. The justifications have almost all been in trademark law, not addressing my concerns at all. In addition, I feel like I'm being blown off, my attempts to get a wider discussion, hoping that someone just might address the issue being removed from the pages. I've asked for help from outside experts in copyright law and am awaiting answers I can share here. And that has been dismissed as irrelevant. To my ears, this all sounds like an "it's OK to infringe" strategy. Can you understand why I'm annoyed? --<b style="font-family:Andale Mono IPA; color:navy;">CTS</b> Wyneken <sup style="font-family:Andale Mono IPA; color:maroon;">(talk)  15:54, 3 October 2006 (UTC)


 * The case you posted above does not deal at all with the use of copyrighted material -- only with the use of a trademark. I forget, are you objecting that this is a trademark infringement or a copyright infringement? I don't even know what the basis of your argument is anymore, except that you find this offensive for some reason and want it gone. Frankly, most of your objections are being dismissed as irrelevant because, well, they're irrelevant. Why do you think the use of this logo on this page is somehow different from our use of the logos on the following pages?
 * Lutheran World Federation, Evangelical Lutheran Church in America, Wisconsin Evangelical Lutheran Synod, Coca-Cola, Marlboro, Pepsi, Harvard University, McDonald's, Honeywell, Microsoft, CNN, Red Hat, Dell, Sun Microsystems, Cingular.
 * I am really interested to hear how this use differs from any of those. Really. &mdash;ptk✰fgs 19:08, 3 October 2006 (UTC)
 * (Outdenting) My objection to using the image is based on several grounds. First and foremost is copyright law. My fair use analysis suggests the use is not fair. It is based on the statute and case law as I know it. I will report back on the discussion at CNI-Copyright when it is concluded what others have said. As far as other logos on Wikipedia pages, I suspect that I would feel the same way about them. But I'm not challenging them due to time constraints. My focus is very narrowly on the LCMS Logo Cross, mostly because I am the most familiar with it.


 * This case is relevant because, while it is mostly a trademark dispute, there are statements in it that apply to copyright law. I'll have to be a bit tentative until I have the opinion in front of me, but the gist, according to my source, is that in footnote seven of the New Boys case, the court rules that based on the Volkwagon case, the defendant would not have had the right to use the image of the logo under trademark law. That leaves us with a traditional copyright law analysis. This is detailed above.


 * My other objection is a moral one. (stick-in-the-mud theologian that I am) We should honor the wishes of a copyright holder not to use their property without their permission. This depends, of course, on whether as I believe there is no fair use defense for using it. This is the policy we have for my online collections. If the item is owned by someone, we will not post it, unless we have permission. Wikipedia should do the same, I believe. We have enough times when truth and NPOV require us to irritate our subjects. We do not need to go out of our way to do so. --<b style="font-family:Andale Mono IPA; color:navy;">CTS</b> Wyneken <sup style="font-family:Andale Mono IPA; color:maroon;">(talk)  19:42, 3 October 2006 (UTC)


 * This case doesn't differ from the others, it just hasn't been brought up in the others. If CTSWyneken is right, none of the logos should be used.  Justifying it here - even though it may be wrong - by basically making the argument that "everybody else is doing it" isn't very mature and ignores the actual point - that Wikipedia is not an education institution and that "fair use" does not apply in the case.

Having read through this all, I think CTSWyneken is right. At least he has made more of a case. I am not an expert in this. But Wikipedia is full of violations; if we let the violations become the standard, then, well, Wikipedia sucks.

Uac1530 19:52, 3 October 2006 (UTC)


 * No, CTSWyneken remains incorrect. (so far I am the only attorney in this discussion --not that I would only respect another attorney, but all I'm doing right now is repeating basic legal principles with little-to-no need for complicated application.  The repeated arguments have no such basis and run into the basics principles.)  Let's run over the "latest" (already previously addressed) arguments:
 * This "side-stepping" to copyrights serves to prove nothing --especially since I clearly commented on it in my earlier, multipoint response: fair use and copyrights is far more established; and again, the use of a logo here is fair, square and pointless to spend so much time about. As long as it's being used "to illustrate the organization [. . .] in question" it's fine.  I'm not advocating throwing this thing everywhere, but for this particular article it's as kosher as Snapple.
 * The New Kids case cite has absolutely no application here. Why?  Because it's about a repair shop, for profit, using a logo.  How does that violate TM?  Well, any student of trademark law would see that using the VW logo would imply that the repair shop is authorized in some way by Volkswagon (which it was not) and is thus diluting the mark --If you don't have an understanding of dilution, you don't understand the trademarks.  Copyrights have absolutely nothing to this, it only applies to trademarks.  Wikipedia's use of the mark has no dilution because no reasonable person would ever, ever think that the use of the logo implies that Wikipedia is authorized by whatever company or organization is represented by the mark.  Thus any and all commentary regarding the New Kids case is moot.
 * Moral arguments have thankfully nothing to do with this. In fact, most of the time when "moral rights" are brought up in IP it's to argue the opposite --that the public domain should be expanded for the good of the poor (think generic AIDS drugs for Africa, etc.).
 * The very idea that there requires "respect for the wishes" of the copyright holder in fair use is morally repugnant: it the antithesis of why we have fair use in copyright and trademark law.
 * I've said this is wrong repeatedly, and these "new" arguments are doing is tripping over the same, ultimate answer: this is covered by fair use. So please, the energy spent on this is probably better spent expanding articles and adding knowledge.  The bottom line is thus: the logo stays.  If you try to remove it, we will restore it.  There just isn't an argument otherwise. --Bobak 21:43, 3 October 2006 (UTC)


 * I agree with Bobak. The image is usable under the law and under Wikipedia policy.  We have explained this repeatedly.  From this point forward, unless I am told otherwise by either (a) an employee of Wikimedia or (b) at least 2 Wikipedia administrators, I will consider removal of the logo from this article to be vandalism a violation of the consensus. Johntex\talk 00:41, 4 October 2006 (UTC)


 * And how do I protest this? It seems to me to be counter to the spirit of consensus building. You all have power so you come to an article for the express purpose of forcing a logo on to it and do not as yet present any reason at all for me to change my view on the status of the image under copyright law. All I see is action aimed at trying to silence dissent. --<b style="font-family:Andale Mono IPA; color:navy;">CTS</b> Wyneken <sup style="font-family:Andale Mono IPA; color:maroon;">(talk) 00:54, 4 October 2006 (UTC)
 * You are one that posted to the WP:LOGO page about this issue. I came to this article as a direct result of your posting, to help you understand what our policy is.  You simply didn't like what I had to say.  You said we needed more outside views, so I posted a neutrally worded request back to WP:LOGO to have someone new come and look at the discussion.  I assume Bobak came as a result of this.  Once again, you don't like what he has to say.
 * You claim we have "...not as yet present[ed] any reason at all for me to change my view on the status of the image under copyright law."  That is simply not true.  We have presented evidence, arguments, examples...you choose to believe what we have presented is wrong or does not apply or whatever.  That is your right.  We can't force you to change your mind, but neither do we have to continue discussing this issue indefinitely.  There are lots of articles to write and we need to move on and stop arguing one particular issue.
 * If you truly want to protest this, WP:Dispute Resolution contains the entire process for Dispute Resolution. We have already had a form of informal mediation and 2 requests for outside views.  If you want to continue the issue, the next step could be to conduct a properly designed poll, or to seek more formal mediation.  --<b style="font-family:Andale Mono IPA; color:navy;">CTS</b> Wyneken <sup style="font-family:Andale Mono IPA; color:maroon;">(talk)  10:07, 4 October 2006 (UTC)Johntex\talk 01:49, 4 October 2006 (UTC)
 * To date, you all have made arguments from trademark law alone. You have not addressed my analysis under the four factors fair use test of U.S. Code Title 17. This is also your right, but it is the heart of my objection to the posting of the logo here. Also, no one is compelling you to answer my posts here. If you do not want to continue this discussion, you can always move on.
 * To make clear what I have implied before here. Since several editors insist that the logo remain on this page over my objections, I will not attempt to remove it barring a representative of the LCMS coming here to object. Your blanket statement that you will treat all removal of the logo from the page as vandalism, howeve, is what would drive me to take all of this to a more formal dispute process if that comes to pass. Since our policy clearly stated at WP:LOGOS is not to contest such an objection, for you do to so is an abuse of admin powers.


 * While you may be frustrated at my continued tenacity on this subject (as I am with yours) please note that not once have I violated 3RR in all of this, I've not once attacked anyone personally nor would I do so. I also appreciate that you all have remained within these limits also.


 * What I have done is vigorously oppose what I feel is wrong. I've continued to research and discuss this with others. I will continue to do this and bring the results here. --<b style="font-family:Andale Mono IPA; color:navy;">CTS</b> Wyneken <sup style="font-family:Andale Mono IPA; color:maroon;">(talk) 09:58, 4 October 2006 (UTC)
 * WP:LOGOS does not intend to allow one editor to hold a decision hostage. We work by consensus, not by unanimous action.  I do very much appreciate that you have remained cordial and have not violated 3RR or resorted to personal attacks.  That speaks very well of you given that this could be such a hot button issue.  I've been remiss in not making more clear that I respect the manner in which you have conducted yourself.
 * One thing I'd like to point out - other than a general interest in all Wikipedia articles - I have no specific interest in this article. I have never editted it beyond this question of the logo.  Therefore, I do not consider myself involved in editting the article, I came here purely as an administrator to try (unsuccessfully it seems) to help reach an understanding on the use of the logo.
 * As for my statement above - vandalism was too strong a word. I apologize for that.  I should have said that I would consider it a violation of the consensus.  I do stand by my statement that there is consensus that the logo should stay.  I do note that I already allowed for the possibility of over-rulling me.  I am not saying that I have the final word here.  I'm just saying that to continue to discuss amongst ourselves is pointless and that the logo should stay unless new data arrives or new authority wants to assert itself.  Does that make sense? Johntex\talk 14:53, 4 October 2006 (UTC)

CTSWyneken, consensus doesn't mitigate the developed field of law on fair use. In law, if you have to struggle to find something to support your case, it's normally a good sign that there hasn't been any key precedent to support the claim. In order to support your thought that fair use can be negated by the preference of the IP-owner would radically redefine fair use and intellectual property as a whole. I'd like to hope that the news would report that sort of thing (at the very least the BBC). There's a line between being tenacious and becoming a gadfly; we can explain the current body of law on the subject but beyond that there's not a whole lot that can be done. --Bobak 14:42, 4 October 2006 (UTC)
 * Consensus here, at the moment, is to display the logo. I'm not about to edit war over this, even though I still feel the use of this logo in not fair use. Consensus also should not stop removal of something that is infringing. I do respect your knowledge of the law and what I've been hearing and reading (I've now got a print of the NEW BOYS case) confirms what you say about trademark law. (although I do have questions about what the nineth circuit is saying in section 7) The question for me is still the copyright law and I haven't seen yet a four factors defense for fair use of the image that matches what I know of the subject. I can only continue to conclude we are infringing until someone can demonstrate that I'm wrong. I'm awaiting replies from others that may illuminate the matter. I'll summarize what I discover, since one of the conversation partners objects to linking to the discussion from here. --<b style="font-family:Andale Mono IPA; color:navy;">CTS</b> Wyneken <sup style="font-family:Andale Mono IPA; color:maroon;">(talk) 15:38, 4 October 2006 (UTC)

Report on Opinions of Copyright Issues Involving the Logo Cross
Several copyright experts discussing this issue on CNI-Copyright conclude that the use of the Logo Cross likely does fall under fair use. The main misunderstanding of copyright law on this subject that I had was that few uses beyond educational are fair. I'll concede the issue that it is fair use being convinced by these conversations that it is. The copyright law, it appears, is even muddier than I thought. There still is a chance that the use is not fair, but case law does not indicate that. In other words, some court could rule otherwise, but this is not likwly. I'll incorporate language on the image's page to indicate the four factor comments that emerge from that discussion. --<b style="font-family:Andale Mono IPA; color:navy;">CTS</b> Wyneken <sup style="font-family:Andale Mono IPA; color:maroon;">(talk) 10:42, 5 October 2006 (UTC)

Since this conversation has gone on long enough, I'll simply state my position at this moment and let the issue go to bed. I'd be pleased if others in the conversation would do the same.


 * CTSWyneken, thank you for your reporting of what you have learned and for your graciousness about the matter. Johntex\talk 18:42, 5 October 2006 (UTC)

Remaining Issues
In ethical terms, then, we may use the logo. So I'll honor the consensus here to keep the image here.

The question remains as to whether we should use the logo.


 * We should use the logo. As Johntex noted, it is helpful to identifying the organization we are discussing. This helps people who read the article and then see the logo later. They know what organization it represents. &mdash;ptk✰fgs 17:24, 5 October 2006 (UTC)

CTSWyneken
Since the LCMS clearly wishes that we ask permission, and since at least one user has asked, we honor their wishes when they respond. Even though we can thumb our noses at them, morally is it is better to honor their wishes when they are expressed. In secular terms, it is always good to build good will. This is especially true since articles on wikipedia do have a tendancy to state negative things about a subject, sometimes legitimately and sometimes not. (witness the new Biographies of living persons policy). So, fellow editors, let's give them a break. --<b style="font-family:Andale Mono IPA; color:navy;">CTS</b> Wyneken <sup style="font-family:Andale Mono IPA; color:maroon;">(talk) 10:42, 5 October 2006 (UTC)

Ptkfgs

 * Morally, it is far better to prevent people from using legal threats and purchased copyright laws to prevent content from being used in a fair way. I do not understand what the value is of attempting to build good will with an agent who is attempting to sweep away our rights under fair use. So far, of course, they have not complained about the use of the logo on this page, so it's not clear that they would object. It's not even clear that they would wish us to ask permission. Please do not put words in their mouths. &mdash;ptk✰fgs 17:24, 5 October 2006 (UTC)

Johntex

 * I see both moral arguments here. I like to extend people extra courtesies when it causes little harm to do so.  For example, I was involved in an argument once about whether someone's mug shot should be used to illustrate the article about them.  It was not a very flattering image, but it was the only one we had and it was clearly legally usable because it was a work by a US govt official which by law was in the public domain.  In that case, we (the editors of the article) were more than willing to remove that image if the subject would have provided one.  However, they refused to provide another image, preferring to insist that we have no photo at all.  I (and the other editors) found that to be unacceptable.  We have a right to report the facts and to use images that are legal to use.  We should accomodate the subject/owner's legitimate request if we can, but we shouldn't make our article less informative because of their wish.
 * Translating to this case, I would say that if the church makes a minor request such as saying "that logo is 2 years old, please use this one instead" or "please make the logo half as big" or "please indicate the logo is used under fair use and that the church does not necesarily condone or refute anything in the article"... any of these things would be reasonable to discuss. If, however, they ask us to remove the logo, I don't think I would be inclined to grant that.
 * The principle of cooperation is important, but the principle of fair use is also important. Our main goal is to be as informative as possible to as many people as possible and we should put that first in front of most other concerns (compliance with the law notwithstanding, of course).  Naturally, this is all hypothetical unless/until they protest.  If they do protest, it would likely be a matter for the paid employees of Wikimedia to decide.  Therefore, I see little value to us continuing to discuss hypothetical events that may never occur. Johntex\talk 18:53, 5 October 2006 (UTC)


 * Thank you both for adding your opinions. For me, the matter is closed here until such time the LCMS comes here to request we do not use the logo. At that point, we should talk about the issue again in the light of WP:LOGOS.--<b style="font-family:Andale Mono IPA; color:navy;">CTS</b> Wyneken <sup style="font-family:Andale Mono IPA; color:maroon;">(talk) 21:53, 5 October 2006 (UTC)

Internal Struggles
This is all opinion and not substantiated. It serves no purpose except as a battleground area.

I suggest that the entire section be deleted. Thoughts?

Uac1530 02:59, 13 September 2006 (UTC)

I would agree with removing the internal struggles section. Those issues aren't really what the LCMS is all about. If we keep that entry there, all of the other factions will want to list themselves. How about a constructive section, such as listing the theological contributions that the LCMS has made to Christianity? There are quite a few literary works that I have in mind, and highlighting The Lutheran Hour would also be good. Dulcimerist 23:00, 27 September 2006 (UTC)

Are there any more thoughts on this issue? If the section remains, it would only be fair to add information regarding "Christian News," Rev. Herman Otten, "Consensus," and other entities. Dulcimerist 19:02, 1 October 2006 (UTC)

Relationship with Other Church Bodies
It would be nice to add a section here pointing out the differences between the LCMS and ELCA. The best source to use for this is here: The Difference between the ELCA and the LCMS Dulcimerist 08:13, 3 October 2006 (UTC)