Wikipedia:WikiProject Fair use/Preemptive fair use

Wikipedia's de facto strategy towards "fair use" media might be termed as "preemptive". In U.S. copyright law itself, "fair use" is strictly a defense &mdash; it what a defendant can say to justify and deflect an accusation of copyright infringement. Wikipedia's policy has been to label uses it considers fair, essentially saying, "If we were sued, this is what we'd claim in court, and we think we'd win. It's probably not worth your time to sue us."

This strategy seems somewhat untested from a legal point of view, but seems to be more or less sound for our purposes. If properly placed, it would tell copyright holders that we are well aware that we are using copyrighted material, but that we think our specific use of it is legal (which they may disagree with, but at least they know we are not ignorant of the law). It also lets other users know that the material may not be "free" for reuse.

Assumptions

 * The content of the English Wikipedia is hosted on servers in the United States and is thus legally responsible to the copyright laws of the United States of America (which may include a variety of international treaties, of course). As such these reforms are tailored towards U.S. law.
 * "Fair use" is a defense against claims of infringement according to U.S. copyright law. That is, it is something one can claim if one is sued for copyright infringement. If a court judged the use to be "fair", the use would not be infringement. The use of "fair use" tags on Wikipedia is a form of "pre-emptive defense" -- they are a statement along the lines of "If you sue us, this is what we will argue in court, and we think we will win."
 * "Fair use" is not a license. It cannot be "granted" by copyright holders. It is a statement about whether or not the use of a particular image would be likely to found to be infringement in a U.S. court under U.S. law. There is no empirical way to "test" whether something is actually covered by the "fair use" clause outside of a troublesome lawsuit, but we can do our best to assess to the best of our ability what the likely outcome would be based on past cases and the text of the law.
 * Current U.S. copyright law does not affect all forms of media in the same way:
 * Textual information, for example, can be rewritten and the original source cited, and not violate copyright law. Further, "if you are using a small portion of somebody else's work in a non-competitive way and the purpose for your use is to benefit the public, you're on pretty safe ground. On the other hand, if you take large portions of someone else's expression for your own purely commercial reasons, the rule usually won't apply."
 * Visual and audio media, however, are often quite difficult to make "free". Visual media can sometimes be replicated -- a picture of a landscape can be made "free" if another person takes a similar picture on their own accord and releases it under a free license. However pictures of individual humans (especially those deceased) cannot often be re-taken, and "free" sources of historical pictures of things which are now no longer in existence can be impossible to find. Audio media is almost impossible to make legally "free" in this regard, as even personal renditions of music created since 1923 are likely still considered under copyright of the original producer.


 * The judgment of "fair use" depends heavily on context -- that is, the specific use in question (which can be a per-article thing).

The Problem
In general, fair use claims are often made by uploaders of copyrighted content where there is really no defensible fair use rationale. Most uploaders are well meaning but understand neither the nature of fair use nor the imporantance of copyright clearance to the project. Since there is at present no reliable process for review of fair use claims, infringing images may potentially stay on the site for a protracted period of time.

On the other hand, certain categories of images are important to the site, are of a nature where no Free source can be found or developed, and are legitimate fair use candidates under U.S. law. These images should be kept.

Present policy
The present policy on fair use is rambling and provides a general description of U.S. law plus some commentary and a nonbinding 10-point checklist.

Proposals
Wikipedia can and should develop its own policy on fair use, to meet encyclopedia goals and discourage casual, inappropriate tagging of images as fair use. The situations where images are actually "fair use" are limited:
 * Cover art. Cover art from various items, for identification and critical commentary.
 * Promotional photos. Photographs of a person distributed for publicity purposes. While not fair use in the legal sense, these are distributed for the express purpose of reuse by the media.  The situation is more akin to an implied license by the source rather than fair use.
 * Brief sound clips. Sound clips, of short duration relative to the totality of the work, for identification and critical commentary, may be appropriate. While such clips have long been used at Wikipedia, the legal rationale for this is weak.
 * Team and corporate logos. For identification.
 * Stamps and currency. For identification.
 * Other promotional material. Posters, programs, billboards, ads.  For critical commentary.
 * Movie stills. For critical commentary and discussion of cinematic history.
 * Screen shots. For critical commentary.  Though often contested, this is probably a fairly safe area, since such a small portion of the overall protected work is used.
 * Paintings and other works of visual art. For critical commentary, including images illustrative of a particular technique or school.

In general, items that do not fit in these categories probably aren't fair use, and if on Wikipedia at all, should be subject to a heightened degree of review. Particular problem areas include:
 * Coats of arms and crests. Those not in public domain should be deleted unless a rationale can be found.
 * Current news service photos.
 * Archival news photos still in copyright.
 * Natural history photos
 * In general, photos and other media used to illustrate rather than for critical commentary on the work itself.

The fair use claim is weak when the image is unsourced. Therefore, except for items such as cover art where the source is obvious, images and media without verifiable attribution should be deleted, or at least subject to extensive review.