January 28
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The above discussion is preserved as an archive of the debate. Please do not modify it. Subsequent comments should be made on the appropriate discussion page (such as the media's talk page or in a deletion review). No further edits should be made to this section.
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- The following discussion is an archived debate of the proposed deletion of the media below. Please do not modify it. Subsequent comments should be made on the appropriate discussion page (such as the media's talk page or in a deletion review). No further edits should be made to this section.
The result of the discussion was: keep. This has been an extremely complex and controversial deletion discussion, so I need to give a detailed explanation for why the decision is to keep the image.
Firstly, I am unable to base my decision on the OTRS ticket that has been lodged as I am necessarily not privy to the contents of this confidential information. This will be assessed by the volunteers, possibly with input from WMF legal counsel. If it is decided that this really cannot be considered to fall under fair use provisions, then I bow to legal opinion.
However, the crux of this matter is whether this image can be used on Wikipedia under U.S. fair use doctrine. After reading the debate, I believe that it can. My reasoning why this is valid under fair use is that it satisfies all fair use criteria, as set out in the Copyright Act of 1976, 17 U.S.C. § 107:
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes:
- The purpose of this image is to show what J. D. Salinger looked like, before he stopped allowing public images taken of him.
- The character of this is to educate and inform, as this is Wikipedia's primary purpose. This is in no way being used for commercial purposes - mirrors will need to consider whether they exclude the image as this will colour their usage of the image under fair use.
- The nature of the copyrighted work:
- This image has been used on a number of book covers. It has been reported that though Salinger gave permission for the photo shoot and publication of the image on the back of book covers, he later was so sick of public images of himself that he demanded that the publisher remove the image from all books sold. The important aspect here is that the work has already been published, and was not strictly for private use. I should note that had this been only for private use, then we would be on much shakier ground, but it would not necessarily restrict the fair use of the image; this is but one factor to consider when determining whether the image can be on the grounds of fair use.
- Amount and substantiality:
- Here I believe that we need to make some modifications to the image. For a start, it has been (correctly) resized and resampled to lower the amount and substantiality of the work. Unfortunately, the higher quality images were still in the image history, so I have taken the liberty of deleting these copies. I would prefer it if the final image was cropped or resampled to be at our normal thumbnail size however, as this would certainly assist with a claim of fair use. Once the final image is decided on, we should delete all other copies. However, all of this can be achieved fairly easily. I do note that the existing quality is not substantial as it appears to be a scan of a book cover, and in fact I can see some half-toning effects that come about from a less than expert scan of printed material.
- Effect upon work's value:
- The effect on the work's value is in doubt here. There is an argument that the estate will have their commercial rights impinged if we publish even a lower quality image of this photo. However, it is worth considering that J. D. Salinger's wishes were that his photos were to never be published, and he took great pains to ensure that this did not occur. One would presume that his estate would need to take this into account before using the photo for commercial interests; if they do so then they would not be honouring the wishes of the deceased man that the estate represents. However, should the estate wish to publish the photo, then I do not believe that this image in particular will cause them any great loss. A number of press organisations, such as Associated Press and The Washington Post, have published J. D. Salinger's photo under fair use, and it appears that they have not caused any economic loss or degradation to the work. Indeed, if anything there is more interest than ever about J. D. Salinger so I think that it less than likely we would be impinging on the estate's ability to use the image commercially.
So this is the fair use criteria I have taken into account. However, the English Wikipedia also has a stricter set of criteria for non-free images, which are detailed under Wikipedia:Non-free content criteria. Therefore, I have taken into consideration each of the criteria. These are:
- No free equivalent.
- This criteria boils down to the replaceability of the image. The litmus test for satisfying this criteria is as follows:
- ...ask yourself: "Can this non-free content be replaced by a free version that has the same effect?" and "Could the subject be adequately conveyed by text without using the non-free content at all?" If the answer to either is yes, the non-free content probably does not meet this criterion.
- The answer to these questions is no. There is no way of replacing this image with a free equivalent — all of the known images of J.D. Salinger are also under copyright. There is also no easy way of adequately depicting the image through text — as the old adage goes, "a picture is worth a thousand words". Therefore, this file is clearly not replaceable with a free equivalent.
- Respect for commercial opportunities.
- This is covered above, but it seems extremely unlikely that this image will affect using the image in commerce. The two aspects that we are asked to examine are that we do not have multiple images of the one person, and that we do not overuse the image on Wikipedia. With both of these aspects we do not: we have
only one image of J.D. Salinger (it appears that is wrong as we have File:Jd salinger.jpg, however this is used as a book cover and thus I believe we do not have excessive numbers of pictures of the subject), and we only use this image on J.D. Salinger as this is really the only appropriate place for the image.
- Previous publication.
- This image came from a cover of his book, and it is also the image of J.D. Salinger that is commonly published by the press.
- Content.
- The criteria for content is that "Non-free content meets general Wikipedia content standards and is encyclopedic". This meets both these requirements - it is not of such bad quality that it cannot be used, and it is most definitely significant to the J.D. Salinger article.
- Media-specific policy.
- As this is at the crux of this discussion, I don't feel much need to elaborate, suffice to say that it satisfies the criteria specified under U.S. fair use law.
- One-article minimum.
- It is used in the article of J.D. Salinger.
- Contextual significance.
- It does lead the reader to better understand the character of J.D. Salinger. I feel that this point would be strengthened even further if the caption explained that this was the last known image of Salinger, and his extreme measures to prevent himself being photographed. In fact, I think that on this count the article doesn't really do justice to this somewhat remarkable aspect of Salinger's life - however, I will not editorialise too much as I am only really pointing this out because it does affect my decision whether to keep or delete the image. I believe that while this aspect of NFCC is particularly weak, it should be easy to correct should that be what editors decide to undertake when updating the article.
- Restrictions on location.
- This is something we will have to be diligent about to ensure that the image doesn't appear on disambiguation pages and lists. But that is something that should be pursued as a matter of policy, and it cannot have any baring on this decision as I have already established that it will be used on the article J.D. Salinger.
- Image description page.
- I have reviewed the image description page, and I am satisfied that the correct fair use template is being used properly. The description page gives a concise and accurate summation of why this image falls under fair use on Wikipedia.
I do understand that this will be controversial to some of you, but as you can see I have given this some considerable thought and I have provided a full justification that should satisfy whether this can be justifiably used as a non-free image under fair use. - Tbsdy (formerly Ta bu shi da yu) talk 04:42, 5 February 2010 (UTC)[reply]
- File:JD Salinger.jpg (delete | talk | history | logs) – uploaded by Daniel Case (notify | contribs | uploads).
- No information on copyright holder. Image was just downloaded from a blog that happens to use the image. Damiens.rf 20:33, 28 January 2010 (UTC)[reply]
- 1951 picture of Salinger, photographed by Lotte Jacobi.
- Isn't Lotte Jacobi the copyright holder? –xenotalk 20:36, 28 January 2010 (UTC)[reply]
- Lotte Jacobi Collection, University of New Hampshire.©Geni 21:37, 28 January 2010 (UTC)[reply]
- Well he just died, which makes it even more irreplaceable. Daniel Case (talk) 21:53, 28 January 2010 (UTC)[reply]
- That doesn't really adress the fact the there is a kinda lack of a fair use case on the image page.©Geni 21:58, 28 January 2010 (UTC)[reply]
- When this policy was introduced and I went and found this photo, it was assumed even by the people who had been clamoring to exclude all fair use images that pictures like these, of known recluses, especially iconic ones (as I write this every major website is using one of the shots from the Jacobi sessions), needed what I wrote as the justification. He was reclusive and those photos were the most commonly used ones. What more do we need? It's moments like these when I don't regret those lower boxes on my userpage AT ALL. Daniel Case (talk) 22:03, 28 January 2010 (UTC)[reply]
- It needs a detailed non-free use rationale.©Geni 22:07, 28 January 2010 (UTC)[reply]
- I have extended it and added a link to the New York Times obit which quotes an old interview of Salinger's where he expresses his hatred of being photographed after that time in his life, to the point that he asked his publisher to take his picture off the back cover of future prints. Daniel Case (talk) 22:25, 28 January 2010 (UTC)[reply]
- Keep. Dead subject who was famously reclusive in life. Nobody's losing anything on this. Fair Use was invented for just such a purpose. Kafziel Complaint Department 00:16, 29 January 2010 (UTC)[reply]
- No, that wasn't what fair use was invented for. Fair use has nothing to do with irreplaceability, indeed. --Damiens.rf 03:17, 29 January 2010 (UTC)[reply]
- Irreplaceabity is one of the reasons for allowing such images. Daniel Case (talk) 04:12, 29 January 2010 (UTC)[reply]
- Irreplaceabity is never a reason for allowing any image. You are confused. Replaceabity is a reason for not allowing non-free images, but from "A implies B" you can't take "NOT-A implies NOT-B". --Damiens.rf 17:40, 29 January 2010 (UTC)[reply]
- Nonsense. Kafziel Complaint Department 17:59, 29 January 2010 (UTC)[reply]
- Tip: A = "Non-free image is replaceable", B = "Non-free image is deleted". Also, consider educating yourself in Logic. --Damiens.rf 18:24, 29 January 2010 (UTC)[reply]
- Mind the personal attack there, Damiens. he said irreplaceability is one of the reasons for allowing such images ... after all, even an arguably iconic image that significantly enhances the reader's appreciation of a historic event has to be shown at a low resolution with the copyright holder as clearly identified as we can get it. Irreplaceability is a strong reason for allowing a fair-use image, but it will not sustain that allowance all by itself. Daniel Case (talk) 18:36, 29 January 2010 (UTC)[reply]
- "he said irreplaceability is one of the reasons for allowing such images" - And I said irreplaceability is never a reason for allowing any images. --Damiens.rf 19:02, 29 January 2010 (UTC)[reply]
- Yes, Damiens, I took that class my freshman year of college just like everyone else. Just because you can't take "NOT-A implies NOT-B" from "A implies B" , it does not logically follow that "NOT-A implies NOT-B" can never be a valid statement. If you want to prove that with logic, you're going to need a lot more propositions.
- If you're resorting to arguing logical semantics here, not to mention questioning editors' educations, I'd say it's a bad sign for your case. Kafziel Complaint Department 19:12, 29 January 2010 (UTC)[reply]
- Keep. This is a special case; he was notoriously reclusive during life, so he probably would not have allowed someone to create a free image of him. -- King of ♥ ♦ ♣ ♠ 00:48, 29 January 2010 (UTC)[reply]
- Irreplaceability was never questioned. Please, understand what the issue really is before !voting. --Damiens.rf 03:17, 29 January 2010 (UTC)[reply]
- We know what the real issue is. We know this is one of the Lotte Jacobi photos. The only lingering issue is that we're not sure whether her estate, or UNH, owns the copyright.
- I know what you questioned: No information on copyright holder. Well isn't it just on the image description page? I'm merely showing how it satisfies another component of NFCC. -- King of ♥ ♦ ♣ ♠ 07:08, 29 January 2010 (UTC)[reply]
- Keep. Indeed, this is an instance in which there is no realistic possibility of a free image existing. —David Levy 00:53, 29 January 2010 (UTC)[reply]
- Irreplaceability was never questioned. What's the point of your argument? Make sure you understand the issue being discussed before !voting. --Damiens.rf 03:17, 29 January 2010 (UTC)[reply]
- Look, if you know you're going to lose the vote, just let go. The problems with this image would not be solved by deleting it. Daniel Case (talk) 04:12, 29 January 2010 (UTC)[reply]
- The point is that one of the most likely deletion rationales for respondents to cite (irrespective of the nominator's viewpoint) is inapplicable. What part of your rationale has not been thoroughly negated? —David Levy 05:57, 29 January 2010 (UTC)[reply]
- We have received an OTRS complaint about the use of this image. NW (Talk) 01:46, 29 January 2010 (UTC)[reply]
- Who made the complaint? The copyright owner? It's pretty clear that this is covered by copyright fair use. --Blargh29 (talk) 02:14, 29 January 2010 (UTC)[reply]
- Yes, the copyright holder did indeed make the complaint. NW (Talk) 03:06, 29 January 2010 (UTC)[reply]
- Well, at least this way we'll know who it is. Daniel Case (talk) 04:12, 29 January 2010 (UTC)[reply]
- Keep now it's super-irreplaceable.--Blargh29 (talk) 02:12, 29 January 2010 (UTC)[reply]
- Strong delete as the copyright holder (or, as I'm not a lawyer, someone who appears to have a strong claim on the copyright) has requested deletion. I accept that it is likely irreplaceable, but the fact that the copyright holder is not happy with the use strongly suggests that it fails NFCC#2. Further, common decency suggests we should repect the wishes of the person from whom we are "borrowing" images- using content we have specifically been asked not to is contrary to the spirit of our goals, and, in more practical terms, could damage our relationship with other institutions with comparable goals, or even result in negative publicity. It is all-round something we are best off avoiding. Has anyone even tried contacting the copyright holder of this/other images and asking if they are willing to release images? If not, how can you claim this passes NFCC#1 with any certainty? J Milburn (talk) 02:28, 29 January 2010 (UTC)[reply]
- I would like to see this OTRS complaint. First, I would like to know if it's even still copyrighted. At the time the image was created, copyright terms lasted 28 years with the chance to extend them another 28 if the rights holder applied for an extension. If they did, they get that life-plus thing. If not, this image is PD as the original copyright would have expired in 1980 or so. Daniel Case (talk) 04:12, 29 January 2010 (UTC)[reply]
- As far as NFCC#2 goes, I don't think being on Wikipedia harms the commercial opportunities. Just do an image search for "J.D. Salinger," and this image is already everywhere. For NFCC#1, Salinger has deceased and we presume obtaining non-free images of deceased individuals is not reasonable. Especially since he spent after 40+ years as a hermit.--Blargh29 (talk) 03:00, 29 January 2010 (UTC)[reply]
- Just because others are infringing copyrights, it does not means we have to. --Damiens.rf 03:17, 29 January 2010 (UTC)[reply]
- We have published this image at a low resolution, in accordance with our policies and legal precedents. It is within fair use and our own narrower reading. Daniel Case (talk) 04:12, 29 January 2010 (UTC)[reply]
- The email is from a representative of the copyright holder, asking that we remove the image until permission has been saught. Again, if this image so clearly does not damage the rights of the copyright holder, why are they so eager to have it removed? I think it highly likely that the copyright holder has either given permission for every other use, or is in the process of contacting various webmasters, and so the fact it is used elsewhere (and our own resolution) appear irrelevent. Also, why has the copyright holder not been contacted anyway? We claim that this image is irreplaceable, but we haven't even tried requesting a free image? J Milburn (talk) 12:11, 29 January 2010 (UTC)[reply]
- A complaint from the copyright holder merely establishes that we aren't complying with his/her wishes (which can be as extreme as not wanting anyone to ever see an image). It's reasonable to consider said wishes, but we are under no legal or policy-based obligation to abide by them (beyond those that correspond with the laws and policies discussed above and below).
- Wikipedia policy does not allow by-permission use of non-free images, so unless the copyright holder releases the image under a free license or into the public domain, fair use is our only option. —David Levy 15:18, 29 January 2010 (UTC)[reply]
- So you're effectively saying we should ignore the wishes of the copyright holder, and not even ask permission, despite the fact they have specifically asked us to remove the image until we have done so? Recognising that "Wikipedia has permission to use this" is non-free and ignoring the wishes of the copyright holder are two entirely different things. J Milburn (talk) 16:19, 29 January 2010 (UTC)[reply]
- I don't know why you've interpreted "it's reasonable to consider [the copyright holder's] wishes" as "we should ignore the wishes of the copyright holder."
- There's no harm in attempting to appease him/her, provided that this doesn't entail removing a beneficial image that we're entitled to use. If we can obtain the copyright holder's blessing, that's fine, but understand that this would have absolutely no bearing on our ability to use the image (unless he/she also releases it under a free license or into the public domain). —David Levy 16:50, 29 January 2010 (UTC)[reply]
- And have you tried to get this released under a free license? Or tried to get any other images of the subject released? J Milburn (talk) 17:17, 29 January 2010 (UTC)[reply]
- I've done nothing but comment here. (I've never even edited the article.) I'm sorry that I don't have time to take an active role in every underlying issue on which I express an opinion. —David Levy 17:29, 29 January 2010 (UTC)[reply]
- There is nothing, repeat nothing, in the FUC that gives copyright holders an absolute veto over our use of an image. J Milburn, has it ever occurred to you that the copyright holder might be on a power trip? Copyright holders do not get define fair use to their liking; it's in statute.
This brings to mind one of the less-frequent complaints about our image-use policy ... that by pretty much surrendering most of the middle ground of fair use to copyright holders, it actually promotes the interests of the copyright industry (Imagine, if you dare, a future IP regime in which our FUC are written into US law. Big Media, the same big media that want to keep extending copyright into eternity because they want to eventually make enough money so that they won't have to do anything except cash checks, would love it and no one could complain because we, Wikipedia, the free-content encyclopedia, came up with it first)
There is a principle to defend here. I assume we don't remove information from BLPs that is reliably and multiply sourced because the subject complains the article is insufficiently hagiographic? Daniel Case (talk) 18:12, 29 January 2010 (UTC)[reply]
- <dedent>
- </dedent> Some copyright owners have more money for lawyers than the Foundation has. First, assume a copyright owner's e-mail to info-en-c results in a determination of Keep. Then the copyright owner sends a takedown notice to the Foundation's designated agent, and the Office gets involved. Two weeks later, it goes up after a contributor's counter-notice: "under penalty of perjury I stand behind the use rationale." This leads to the copyright owner's loss of desire to edit Wikipedia, which opens the door to a court order. Whether a use qualifies under NFCC #2 is something that can only be determined at trial, and I doubt that the Foundation has the cash for that. --Damian Yerrick (talk | stalk) 14:43, 31 January 2010 (UTC)[reply]
- Uh, FUC #2 is Wikipedia policy, not U.S. law. No court would take it upon itself to interpret a private organization's policy for it, especially where said policy is more restrictive than U.S. law on the subject. And see copyright misuse as a defense here. As a matter of principle, we don't just give in to every legal threat someone makes. We don't take a couple of German ex-cons' names out of an article on the English Wikipedia because German law says to suppress it. Daniel Case (talk) 16:54, 31 January 2010 (UTC)[reply]
- I read NFCC #2 ("Non-free content is not used in a manner that is likely to replace the original market role of the original copyrighted media") as equivalent to 17 USC 107(4) ("the factors to be considered shall include [...] the effect of the use upon the potential market for or value of the copyrighted work"). So please allow me to rephrase: Whether a use qualifies under 17 USC 107(4) is something that can only be determined at trial. --Damian Yerrick (talk | stalk) 16:59, 31 January 2010 (UTC)[reply]
- If that were the only fair-use criterion we had, you'd be right. But I read many of the other criteria as designed to ensure that without us having to make that judgement call all the time. Daniel Case (talk) 20:47, 31 January 2010 (UTC)[reply]
- Oh my God! You really believe that WP:NFCC is multiple choice. --Damiens.rf 21:05, 31 January 2010 (UTC)[reply]
- A non-free image doesn't have to satisfy only one of the criteria under Wikipedia policy. It has to satisfy them all, plus the law. --Damian Yerrick (talk | stalk) 21:07, 31 January 2010 (UTC)[reply]
- No, Damiens, the point of having seven other criteria was to give us a procedure for justifying use under the law and FUC 2. We are far more scrupulous in this, as a result, than most other users on the Internet. I do not object to a deletion of a fair use image where the original copyright holder is not identified despite requests for him to do so, where it is not reduced in resolution and where it cannot be argued that it is contextually significant (FUC 8, the usual turning point of this sort of discussion). A couple of weeks ago someone removed a parody magazine cover image from Anna Wintour that I had put in a long time ago, on the grounds that it wasn't specifically discussed in the accompanying text. I thought it nicely illustrated the depth of the anger anti-fur activists have at the article's subject, but I agreed that the connection to the text wasn't strong enough and that a free image of some PETA type tossing blood at her or pieing her in the face (behavior that is discussed in the text) would be more pertinent as illustration goes.
What I am objecting to, or finding difficult to understand, is your claim that despite meeting all these other criteria we should nevertheless still delete it under a (as lawyers would say) notional violation of FUC 2 (That criterion is most often violated by photos of recent breaking news events, which is what some of us always perceived it as being meant for, not half-century old iconic photos of recently deceased legends of American literature that may well not be copyrighted anymore anyway). Daniel Case (talk) 04:21, 1 February 2010 (UTC)[reply]
- Keep appears to be irreplaceable, clear fair use rationale for depicting the author. Prodego talk 03:15, 29 January 2010 (UTC)[reply]
- This is immaterial to the discussion. --Damiens.rf 03:17, 29 January 2010 (UTC)[reply]
- The irreplacability has to do with our content criteria on when we use images under Fair use. The second part refers to that we clearly can legally use this copyrighted photo under Fair use. How is my comment immaterial? Prodego talk 03:20, 29 January 2010 (UTC)[reply]
- Irreplacability was never questioned in the nomination. Why did you bring it up? You do understand it's just one of 10 criteria the image must pass, don't you? --Damiens.rf 03:26, 29 January 2010 (UTC)[reply]
- I quote from WP:NFCC: "Identification of the source of the material, supplemented, where possible, with information about the artist, publisher and copyright holder." (bolding mine) It is not a requirement, and is something that I suspect could easily be obtained. The image should definitely be kept, dotting the i's and crossing the t's can be done later. Prodego talk 03:32, 29 January 2010 (UTC)[reply]
- Thank you. Daniel Case (talk) 04:12, 29 January 2010 (UTC)[reply]
- No free equivalent - check.
- Respect for commercial opportunities - low-res, check.
- Minimal usage - check.
- Previous publication - check.
- Content - check.
- Media-specific policy - as far as I can tell, check.
- One-article minimum - check.
- Contextual significance - check.
- Restrictions on location - check.
- Image description page.
- Identification of the source of the material, supplemented, where possible, with information about the artist, publisher and copyright holder - check.
- A copyright tag that indicates which Wikipedia policy provision is claimed to permit the use - check.
- The name of each article (a link to each article is also recommended) in which fair use is claimed for the item, and a separate, specific fair-use rationale for each use of the item, as explained at Wikipedia:Non-free use rationale guideline - check.
Why are we having this discussion again? --SarekOfVulcan (talk) 04:54, 29 January 2010 (UTC)[reply]
- Because situations have changed. Read up. J Milburn (talk) 12:14, 29 January 2010 (UTC)[reply]
- This user seems to have listed a great number of irreplaceable historical photographs that meet all of WP's criterion for fair use usage. APL (talk) 07:35, 29 January 2010 (UTC)[reply]
- That has nothing to do with this issue. J Milburn (talk) 12:14, 29 January 2010 (UTC)[reply]
- Again, I would like more detail on the OTRS complaint, as only those with OTRS access (which is to say, not me) can review it. Just because a copyright complaint is received does not automatically mean the image fails our FUC; this use is within both it and the legal standard of fair use. Does the rights holder have proof that the image is still covered by copyright, for one thing (see my post above on this)? It is eminently possible that the details of the complaint are not with the image as a whole but some way in which it is used, which we might well be able to rectify (as we were a few weeks ago when someone pointed out this needed to be reduced). Daniel Case (talk) 17:59, 29 January 2010 (UTC)[reply]
- Comment - can an OTRS member reply to the copyright holder and request that the low-res image be released under a free license (they would keep the rights to larger versions)? Either way, it's probably going to remain, as there are many keep votes and it satisfies NFCC, but it would be nice to at least try this avenue before totally ignoring the copyright holder. —Ed (talk • majestic titan) 18:06, 29 January 2010 (UTC)[reply]
- If the copyright holder is UNH, we ought to talk with them about releasing more of the Jacobi photos. In any rate I can't imagine what concern they could have (assuming, as I have noted, that the copyright term on the images was extended at the right time and that they have proof of this). A fair amount of those GLAM sector people know less about copyright than they (or even their lawyers) think they do.
- NFCC#2 issue - being a very rare image (as agreed by both parts of this debate), this image is potentially profitable for the copyright holder. Of course, the apparently widespread unauthorized use of the image is an obstacle for the copyright holder's interest, and it's comprehensible that he/she is fighting it. Since we're using the image just as a means of visual identification, our use is not transformative, and there's not a defensible fair use rationale here. There is, indeed, the false common belief that when an image is extremely and conveniently useful for us, it's "fair use". --Damiens.rf 18:21, 29 January 2010 (UTC)[reply]
- Using the image as a means of visual identification is within the legal bounds of fair use, which is far broader than the policy we adopted four years ago to artificically encourage the use of free content. See "Common misunderstandings of fair use":" Fair use is a right granted to the public on all copyrighted work. Fair use rights take precedence over the author's interest. And yes, that has a source.
As for the scarcity of the image being a source of future profit, again I would want the copyright holder to demonstrate that the copyright on the image was renewed in a timely fashion. The picture was one of several taken almost sixty years ago and has been in wide circulation ever since. While the rights holder may think it is still profitable to license it out, and indeed they are within their rights, it would be unrealistic to assume they could successfully suppress this image enough to restore it to profitability at this point. (The picture of Salinger that someone snapped of him leaving the local supermarket in the mid-'80s ... now, that's a money maker even today). Daniel Case (talk) 18:32, 29 January 2010 (UTC)[reply]
- If the image can be proved to be PD (due to copyright not-renewed), than this conversation is moot. Assuming it is copyrighted, I have not seen a case for our use of this image being fair use (as in law). Fair use is not a blanket permission for using copyrighted works when it's convenient to do so. We can't ignore the fact that to the copyrighted holder is reserved the right to license this image to Britannica only (for instance) for a fee. It's not ethical to ignore this just because many others have already ignored this before.
- We're not using a copyrighted work for commentary on the copyrighted work itself (as would be a transformative use). We are using a copyrighted picture of a man because we want to show a picture of that man. I any serious publication, free or not-free, commercial or non-commercial, online or dead-tree, a use permission would have to be acquired first (probably after paying some licensed fee). --Damiens.rf 18:56, 29 January 2010 (UTC)[reply]
- First of all, we need to know what the OTRS complaint is actually about. Either the copyright holder legitimately wishes it removed and we comply with the request, or they failed to renew it and it's PD. Without such verification, that argument is groundless, and it will be kept as valid fair use. -- King of ♥ ♦ ♣ ♠ 22:19, 29 January 2010 (UTC)[reply]
- Images are used for visual identification all the time with no complaint from rights holders, not here, not anywhere. I'm pretty sure it falls under the legal definition of fair use to do so, not in the least because it's never been tested in court and without a court decision saying otherwise, we can consider it permitted under common-law construction. I note also that WP:NFC#UUI does not say anything about depicting the appearance of a subject being an unacceptable use. It's not on the fair-use whitelist, to be sure, either, but that's because the idea was that it was better for the community to work this out on a case-by-case basis. Daniel Case (talk) 05:34, 30 January 2010 (UTC)[reply]
- Comment I don't take part in that many FFD discussions but I'm confused by some of the comments above which appear to suggest that because the image is low res, that means we are respecting commercial opportunities. I was under the impression that we almost never use commercial media photos, no matter how low resolution and now matter how irreplacable because it's considered media photos tend to have strong commercialisation and even a low res photo is likely competing with the commercial use. The only exception is when the photos are regarded as so iconic that our use can't be considered to compete with the commercial use. (And there's been minimal discussion of that later point.) Am I mistaken here? If not, it would seem to me that the same idea applies given that the (alleged?) copyright holder has evidentally complained and that the fact that this person is a recluse means the few pictures that exist are highly sort after.Nil Einne (talk) 13:13, 30 January 2010 (UTC)[reply]
- The copyright holder, or someone purporting to be them or purporting to hold a valid copyright to the image (I can't tell because we peons are not allowed to review the OTRS complaint ... yes, even this peon who has more powers than the average admin) has made some sort of complaint, again the specifics of which we do not know and therefore, cannot consider in this FfD IMO.
Anyhow, to the specifics of your comment — you are somewhat confused, as many people not involved in discussing issues that arise from it are (because it's a confusing policy, but that's neither here nor there at this particular juncture). We never use commercial photos of living people, at any resolution, because, usually, they are public people who make appearances where they permit people to photograph them and, even if no such image has been created as a free one, one could be. That's called replaceable fair use and is a reason for not using a fair-use image on Wikipedia. The idea is that by limiting ourselves to free images of celebrities, say, we encourage the creation of free content. I must admit that, as far as contemporary pics of celebrities go, this has been more successful than some of us were afraid it would be at the time.
However, when the specifics of the policy were being hammered (and I do mean hammered) out, we discussed the question of notable people such as, specifically, Salinger, who had been a notorious recluse for years. It was generally agreed that, in those cases, photos that were widely used to depict them, no matter how old, were OK (This was a descendant of what Jimbo called the "North Korea exception" to the tighter image policy, whereby fair use images of notable buildings or whatever in areas which most people on the planet cannot have access would probably be OK since it wasn't very possible that someone would be able to visit them and take free pictures (Granted, we do have some free pictures of Pyongyang subway stops and such). There are a few other such articles (ironically, even though there are less extant photos of Thomas Pynchon, one of them is his US Navy ID photo, which meant we could use a free image) where a person where we have reliable sources indicating they avoid being photographed is visually idenitified with a fair-use image (I'm not going to list them because then Damiens will try to delete them because they're not "transformative", and I don't need the extra work defending the perfectly defensible).
Since I brought up Pynchon, I must point to a crucial difference between his career and Salinger's (assuming they weren't the same person, as one theory has it :-)) is that while Pynchon has been reclusive for his entire public career, with no public appearances whatsoever and thus no photos of him since his early 20s when he wasn't a published author, Salinger only became one in the mid-1950s, after the Jacobi portraits were taken. They were widely used on book jackets and in newspaper and magazine articles for years. The New York Times used one to illustrate his obituary, as did many other publications online and off. I doubt any serious commercial value could be obtained from them anymore.
On the other hand, there are maybe two pictures that I know of taken since then, this one shows him fending off someone who shot his image from a car, probably the last good one, and an earlier picture used on the cover of his daughter's memoir. Those, IMO, have value that we would have to respect and could not be used in articles without a good reason (as, indeed, the book cover is in the main Salinger article, although frankly we should have a separate article about the book and use it only there). I would argue that, as a Google search shows heavy reuse of the Jacobi images, the one we used in particular (which was why I picked it out), that has become sort of iconic in the half-century since. For a couple of generations, it was Salinger (and if I were him, yeah, I'd prefer everyone to think I always looked that good). Daniel Case (talk) 19:12, 30 January 2010 (UTC)[reply]
- Short answer: Nobody is arguing this image is replaceable. --Damiens.rf 19:58, 30 January 2010 (UTC)[reply]
- No, and no one said you were. At least not me. But you have been arguing that replaceability means jack squat, as if FUC #2 trumped FUC #1 (which uses the word "replace" twice). Daniel Case (talk) 06:18, 31 January 2010 (UTC)[reply]
- Sorry but I think you're the one confused. I understand fairly well the issues when it comes to living people and replacability and have been a strong proponent of them but they aren't what I'm talking about. I thought I made it clear in my originall comment, and let me make it clear now that is not what I'm talking about. I'm talking about commercial media images, not necessarily of living or dead people but for example commercial media images of past events, say an air crash. In such cases replacability may come in to it, but realisticly if the air crash was in 1990, and someone has actively sought out and asked people if they would release images under a free license and been denied, the issue of replacibility doesn't come into to (except as related to whether we actually need the image to illustrate the even in question i.e. whether it is essential to the encylopaedic purpose and adds information the text can't convey).
- The big issue that comes in to it is that such images clearly have a strong commercial interest, as even the single image could easily be highly valuable and likely actively licensed to those producing articles on the even, and even a low resolution version could easily compete with the market role of the image. This compares with say the a screenshot from a movie or the cover page of a book or the coverart of a CD where it's unlikely our use will compete with any commercial interest. It also compares to a photo released by some organisation for the purpose of redistribution, say the image of a missing person released by the family where there's clearly little competition with any commercial interest. I apologise for the bold text, but I get frustrated when people completely ignore my point and go off on a very long and very wild tangent.
- P.S. To use an example of what I'm talking about, File:TrangBang.jpg is the common example here of an image we would not normally allow (okay we have permission but let's ignore that) as we could be easily seen as competing with the market role except that the image itself is so famous as to be worth of commentary. I see we even have Template:Non-free historic image which seems to further illustrate my point.
- P.P.S. I thought there was something in NFCC which made the point I tried to make above. I found it now. Wikipedia:NFC#UUI "A photo from a press agency (e.g., AP), unless the photo itself is the subject of sourced commentary in the article." This concurs with my earlier believe that we rarely allow commercial media photos (by which I basically meant the same thing) unless they are iconic (okay slightly wrong here since it only requires source commentary which arguably doesn't necessarily make the photo iconic). While a reason is not given, it remains my belief that the reason is because such photos have a strong commercial interest and we are likely to be competing with the market role no matter what the resolution
- Nil Einne (talk) 18:55, 31 January 2010 (UTC)[reply]
- First, it isn't a press agency photo, it was one commissioned by the publisher for the back of the book. OK, distinction without a difference, perhaps. Still, note that you said rarely, not never. One of the exceptions that we agreed on several years ago was in the case of notably camera-shy individuals ... with Salinger often cited as the most obvious example. Daniel Case (talk) 20:44, 31 January 2010 (UTC)[reply]
- Recluses are an exception to the Wikipedia policy of replaceability, not an exception to the law. Wikimedia Foundation is subject to the laws of the United States of America. Even if our exemption doctrine policy were "all fair use all the time, as long as it's legal and it's not text" as it effectively was in WP's early years, that still wouldn't give us the right to use images beyond what 17 USC 107 allows, and others have expressed concern that the fourth factor does not act in our favor. --Damian Yerrick (talk | stalk) 21:07, 31 January 2010 (UTC)[reply]
- As I have said many times, the FUC are intentionally drawn more narrowly than the legal scope of fair use so that we may "promote" free content. Daniel Case (talk) 04:21, 1 February 2010 (UTC)[reply]
- Comment - The debate has become incomprehensible. For newcomers, I will try to summarize. There are two issues here: 1) the lack of copyright information in the fair use rationale. This has been fixed. 2) An OTRS complaint from someone claiming to be the copyright holder has made some complaint. IFD is not the forum for such discussion, since fair use overrides the copyright owner's wishes. --Blargh29 (talk) 15:09, 30 January 2010 (UTC)[reply]
- Delete as failing WP:NFCC#2, replacing the market role of the original media. Stifle (talk) 17:53, 30 January 2010 (UTC)[reply]
- See above. Daniel Case (talk) 19:16, 30 January 2010 (UTC)[reply]
- Your disagreement with policy is noted. Unfortunately, the policy remains, until there's a consensus to change it. Stifle (talk) 16:54, 31 January 2010 (UTC)[reply]
- My disagreement is with an exceedingly narrow interpretation of policy, not (in this case) the policy itself (although, to be fair, one of my original complaints was that it the policy was so vague, almost deliberately so, as to invite this sort of attempt to define it haphazardly through deletion noms, rather than a prior consensus as I tried to do. Either that, or the framers of the free-image policy were incredibly naïve as to not suspect this would happen. Actually, IMO, it was a combination of both). Daniel Case (talk) 20:44, 31 January 2010 (UTC)[reply]
- Also, I'd love to shed some more light on the nature of the OTRS complaint, but (a) OTRS emails are confidential, and (b) it's in a mail queue to which I don't have access. Stifle (talk) 17:54, 30 January 2010 (UTC)[reply]
- In other words, you couldn't even if you had access to the queue. I'm sorry, I'm not assenting to a deletion of an image based on secret evidence that I can't evaluate. Haven't people staged revolutions over the years against that sort of thing? Daniel Case (talk) 19:16, 30 January 2010 (UTC)[reply]
- WP:NFCC#2 is not "secret evidence". --Damiens.rf 19:58, 30 January 2010 (UTC)[reply]
- Uh, you're not understanding here. FUC #2 is the policy basis on which you are calling for the image to be deleted. After a solid run of keep votes, suddenly, deus ex machina, there was this OTRS complaint. But it is entirely possible that the complaint could be addressed without deleting the image. It's "secret evidence" in that no one can assess this without seeing the substance of the complaint, and I don't think that a communication from outside Wikipedia that is kept confidential from the community (which I don't disagree with, in general) should be the basis for a community decision on its own. Daniel Case (talk) 00:23, 31 January 2010 (UTC)[reply]
- Delete. As I understand it, there's an OTRS complaint by (whom I assume for the purposes of this discussion to be legitimate) the copyright holder. That complaint/request, as well as the generally accepted rarity of the image itself, says to me that our use does infringe on the copyright holder's commercial opportunities (WP:NFCC#2). That being said, do we have any similar precedents on the English Wikipedia from which we can derive guidance? Secondly, without reading the article at the moment, does it discuss the subject's appearance in this (or any other photo) w/reliable sources, or is the lack of such pictures the only commentary? — pd_THOR | =/\= | 21:47, 30 January 2010 (UTC)[reply]
- Keep: It is funny that you mentioned precedents. I was just wondering if the decision that is made on this file will set a precedent. If a rare photo of JD Salinger does not qualify as fair use, I have to wonder if anything does. As I read this gigantic thread, I have to wonder why there is even such a statute if no one seems to be able to interpret it.--DorothyBrousseau (talk) 23:11, 30 January 2010 (UTC)[reply]
- I don't understand your argument. Why do your think our use of this photo qualifies as fair use? Because it's rare? --Damiens.rf 00:09, 31 January 2010 (UTC)[reply]
- Because 1. The famous man was reclusive. I don't know where you are from but here in New Hampshire the name Salinger is synonymous with recluse. 2. And now he is dead. 3. it is apparent that that there is no free alternative. "Fair use" was designed to allow the public access to publication/images etc. that would otherwise be kept private by those seeking a profit. —Preceding unsigned comment added by Dorothybrousseau (talk • contribs) 00:21, 31 January 2010 (UTC) --DorothyBrousseau (talk) 00:38, 31 January 2010 (UTC)[reply]
- No, that was not what fair use was designed to. Now I understand your misguiding. --Damiens.rf 03:41, 31 January 2010 (UTC)[reply]
- Again, you are confusing the legal extent of fair use with the Wikipedia definition. Daniel Case (talk) 06:18, 31 January 2010 (UTC)[reply]
- Delete Of course the image is replaceable. Any photo that merely shows what a person, living or dead, looks like is replaceable with enough description of the subject's appearance to allow a police sketch artist to make an accurate sketch, followed by such a sketch done by a separate person. Consider it the portraiture equivalent of Compaq cloning the IBM PC BIOS. --Damian Yerrick (talk | stalk) 01:45, 31 January 2010 (UTC)[reply]
- Are you serious? —David Levy 02:07, 31 January 2010 (UTC)[reply]
- If we can create original text by taking the ideas from reliable sources and putting them in our own words, and we create original diagrams by taking the ideas from reliable sources and putting them into Inkscape, we can create original facial composites of novelists by taking the facial features from photos and sketching them in our own hand. --Damian Yerrick (talk | stalk) 02:25, 31 January 2010 (UTC)[reply]
- Again, are you serious? If you don't provide a straightforward response, I'll assume that you aren't. —David Levy 02:44, 31 January 2010 (UTC)[reply]
- I guess he wants the image to be kept and used a deliberately week keep argument. The point is that "keepers" will point the shortcomings of his argument and this will created a false impression of "keepers" having a better point in the overall discussion. --Damiens.rf 03:41, 31 January 2010 (UTC)[reply]
- To me, it seems more likely that he's simply being sarcastic and doesn't expect to be taken seriously.
- Regardless, this has no bearing on the other "delete" arguments, and I (one of the "keepers") am questioning Damian Yerrick's sincerity specifically because I have no interest in attacking a straw man. —David Levy 04:00, 31 January 2010 (UTC)[reply]
- So now Damiens is having problems assuming good faith on his opponents' part too. It's a clever conspiracy! Daniel Case (talk) 06:18, 31 January 2010 (UTC)[reply]
- Yes, I'm serious. Non-free text is generally deemed replaceable with free text unless it is a short quotation whose exact wording is the subject of comment in the article. In fact, I've seen images deleted because the images are replaceable with text. Every image is supposed to have an accessible description that conveys the same information to a person whose user agent or disability doesn't support images, and these descriptions need to be free. Case in point: screenshots of video game emulators that don't show unique user interface only serve to show that "X game runs perfectly or near perfectly in Y emulator." (See TFD discussion from March 2009.) And non-free maps are deemed replaceable with free maps created by a Commonist. So why isn't a non-free portrait in an infobox replaceable with a free sketch in the same sense that a non-free map is replaceable? Sure, using non-free promo photos to show what a deceased person looks like is common practice on Wikipedia, but playing fast and loose with fair use also was once common practice a few years ago before we started using explicit rationales. --Damian Yerrick (talk | stalk) 14:43, 31 January 2010 (UTC)[reply]
- Text is never a valid criteria when determining replaceability of an image. This is by far the most ridiculous assertion ever seen in an XfD. Tarc (talk) 15:20, 31 January 2010 (UTC)[reply]
- Please allow me to quote NFCC #1: "As a quick test, before adding non-free content requiring a rationale, ask yourself: [...] 'Could the subject be adequately conveyed by text without using the non-free content at all?'" If an article contains a description in sufficient detail to allow a police sketch artist to draw an accurate composite, the person's appearance has "be[en] adequately conveyed by text". --Damian Yerrick (talk | stalk) 17:07, 31 January 2010 (UTC)[reply]
- A game argument, but ... we tried this back when this policy was first instituted and the best that happened was that someone managed to make Jean-Paul Sartre look like a drunk. The problem is that most sketches, especially of someone like Salinger for whom photos were rare after a certain point in his life, would necessarily be based on the photographs, and I don't see how you could do it without the sketches being a derivative work and thus not free images. IIRC we deleted a bunch of other attempts because they looked too much like the copyrighted images they were based on. (However, while it wouldn't work in the instant case, it seems to me there are enough instances where someone has multiple images of themselves out there where aspects of those images could be cleverly combined and new elements introduced by someone skillful enough with image-editing software that the resulting photo illustration would clearly cross the threshold of originality and be licensable as a free image. Just an idea ...). Daniel Case (talk) 16:29, 31 January 2010 (UTC)[reply]
- Copying a work requires access to that work. If one person makes the description and someone else makes the sketch without reference to the original photo, that's called clean-room reverse engineering. --Damian Yerrick (talk | stalk) 17:07, 31 January 2010 (UTC)[reply]
(outdent) Human faces aren't computer code. The efforts of police sketch artists notwithstanding (and there are many instances where the sketch proved wildly off when the suspect was finally apprehended — Ted Kaczynski, David Berkowitz, to name a few — Wikipedia deserves better. And can you be sure you'd find someone who can honestly say they'd have no idea what Salinger looks like, and can sketch decently? I think, at least, almost every American of a certain age has seen his picture, even if they don't remember doing so. Daniel Case (talk) 20:44, 31 January 2010 (UTC)[reply]
- If human faces aren't representable as computer code, please explain how a facial recognition system works. And if almost every American has seen his picture, get a Brit or an Irish or a South African or an Australian or a New Zealander, or even an Old Zeelander or someone else whose native language isn't English, to do the sketch. --Damian Yerrick (talk | stalk) 21:07, 31 January 2010 (UTC)[reply]
- "Face recognition is not perfect and struggles to perform under certain conditions ... Critics of the technology complain that the London Borough of Newham scheme has, as of 2004, never recognized a single criminal, despite several criminals in the system's database living in the Borough and the system having been running for several years." You were saying? Something about "works"?
Look, I write a lot of articles about buildings. Almost every one includes as detailed a sourced description of the building as I could get. But they have photos too; I would trust neither a computer nor a person to depict the building accurately based only on an even more detailed written description than I currently write. Daniel Case (talk) 04:01, 1 February 2010 (UTC)[reply]
- Buildings are subject to freedom of panorama, even in the United States where sculptures aren't. --Damian Yerrick (talk | stalk) 19:51, 1 February 2010 (UTC)[reply]
- Huh? Freedom of panorama has nothing to do with this. You missed my point, which was serious doubt that existing or even potential technology could do any better than humans do (or don't) at replicating human or even architectural appearance based on a textual description, which would be why we rejected the idea of subbing our own free sketches for fair-use photos a long time ago and why I doubt your Chinese-wall idea would ever work. Which makes a greater case for the irreplaceability of the image, which is what that argument you were attempting to make goes to.
I'd like to see you write a description of Salinger, right here, right now, that you think could produce an equivalent sketch from someone who'd never seen an image of him. Daniel Case (talk) 04:55, 2 February 2010 (UTC)[reply]
Question: Damiens, In your opinion has there ever been a case in which a copyrighted photo of a person did qualify to be included on wikipedia under the fair use doctrine? If so, can you tell me what it is? Because,like I said, I cannot see how anything ever would if this picture does not.--DorothyBrousseau (talk) 07:10, 31 January 2010 (UTC)[reply]
- Response: images where no commercial interests are at stake would be, for instance photographs that the subject himself had used for promotional purposes during their life (e.g. photos on the subject's own webpage etc.) Also, images where such interests were explicitly waived, e.g. through a "permission for non-commercial use" or "permission for use on wikipedia". Fut.Perf. ☼ 09:30, 31 January 2010 (UTC)[reply]
- "[T]he subject himself had used [them] for promotional purposes during their life". Hmm ... Salinger, or his publisher, had those pictures taken for book covers, and they were used for years in newspaper and magazine articles, even after he went into seclusion, to illustrate articles about him, as his books continued to be published and he continued to cash the royalty checks. Seems like there's a strong argument to be made that they were used promotionally. Daniel Case (talk) 16:54, 31 January 2010 (UTC)[reply]
- Keep: Per SarekOfVulcan. This entire discussion is mind-boggling. --MZMcBride (talk) 07:29, 31 January 2010 (UTC)[reply]
- Keep per Sarek. Would meet NFCC (or since it's deleted and I can't see the page, could verily easily be brought into compliance). --Cybercobra (talk) 07:38, 31 January 2010 (UTC)[reply]
- Damiens is correct on two fronts here: 1/that, at the time of nomination, the copyright holder was not identified and 2/that irreplaceability is wholly irrelevant to this discussion, as neither has Damiens nor anyone else legitimately contended otherwise. So, as a point of order, keep votes based on replaceability grounds are immaterial as they do not address the actual problem, which was NFCC.10b (though it now has changed to NFCC.2) The copyright holder seems to have been identified (though it does seem a bit of a stretch to assert that it was unidentified at the time of nomination as the FUR identified who took the photo), so that issue is cleared. NFCC.2 is now the concern. The OTRS ticket raises the question that our use of the image does in fact impinge on the commercial opportunities of the copyright holder. I disagree with this assessment, however, and think the image does not fail NFCC.2 If more information comes to light from OTRS this may change, but as it stands I consider the image to meet NFCC requirements. ÷seresin 08:07, 31 January 2010 (UTC)[reply]
- Delete. The irreplaceability and famousness of this photograph doesn't make things better, it makes them worse. Especially because it's so famous and irreplaceable, there will be a legitimate market for the copyright owner to sell licenses for its use – and that quite likely includes licenses for web use at low resolutions. If we host it for free, it clearly reduces the incentive for other websites to buy licenses to do the same. Fut.Perf. ☼ 09:30, 31 January 2010 (UTC)[reply]
- That cat went out of the bag a long time ago. Digital versions of this image, scanned off book covers or scraped from online news stories, have been all over the Internet since before Wikipedia existed. If the rights holder really thinks they can make money off it, they're living in cloudcuckooland. Just because someone makes a complaint (especially one we can't review) does not mean that its valid we have to bend over backward to please them. If Wikipedia was run the way the delete voters seem to think it should be, all our articles on Chinese subjects in any language would simply regurgitate the party line. Daniel Case (talk) 16:54, 31 January 2010 (UTC)[reply]
- Reduce size further. As I understand it, we cannot claim that an image that does not fit a 300x300px box is minimal usage. Also, old versions of the image that exceed this size need to be deleted. I'm on the fence whether the image is free-usable after the resize, but I'm pretty sure it's not at its current size. Rami R 10:53, 31 January 2010 (UTC)[reply]
- I thought we already did this? Daniel Case (talk) 16:54, 31 January 2010 (UTC)[reply]
- I did reduce it to 100x140, but I got reverted. --Damian Yerrick (talk | stalk) 17:13, 31 January 2010 (UTC)[reply]
- That resize was a bit excessive; The (rarely used, and hopefully soon-to-be former) default thumbnail size is after-all 180px. Rami R 17:32, 31 January 2010 (UTC)[reply]
- Comment Has anyone tried the online copyright search at http://www.copyright.gov/records/cohm.html? I searched for J.D. Salinger, for Lotte Jacobi, and for University of New Hampshire and found nothing that seems related to this image. This is the first time I have searched this database, so I may have missed it, but I did not see this website mentioned here. Since the image was taken in 1951 in the US it needed to have its copyright renewed in 1978 - see details at File:FantUnivNov54.jpg. Ruhrfisch ><>°° 13:35, 31 January 2010 (UTC)[reply]
- Keep just piling on here: clearly irreplacable image, clear fair use rational for it's use on the JD Salinger page.
— V = I * R (Talk • Contribs) 14:26, 31 January 2010 (UTC)[reply]
- Comment for new !voters: the primary concern here is that the image fails WP:NFCC#2, in that its use here conflicts with the market role of the image. Replaceability is, at most, a secondary concern. Please note that a non-free image must pass all ten non-free content criteria, not just one, to be used here. Stifle (talk) 16:57, 31 January 2010 (UTC)[reply]
- Weak delete Have not received a satisfactory answer to my concerns this is competing with the commercial interest and therefore falling afoul of NFCC#2. For example, no one has added Template:Non-free historic image. It's possible the copyright for this image has expired as it was not renewed however we need better evidence for this and once we have it, we can change the license tag to an appropriate PD one, but as long as the image remains under NFCC we need to met the requirements of NFCC#2. The "lots of people are violating copyright, so there's no commercial interest" is somewhat flawed, for starters, we have a much wider distribution then most other sites and the fact that I can easily find a copy of plenty of other copyright infringing material on the web doesn't mean it's okay for us to host it. Nil Einne (talk) 19:22, 31 January 2010 (UTC)[reply]
- I have used that to cast doubt on whether the image has (assuming it's still copyrighted, which Ruhrfisch's research has suggested otherwise) any realistic commercial potential. Yes, I'm certainly aware that other websites use of the image does not legitimize it for us. But part of the reason for using fair use images at a reduced resolution (which makes it unattractive for print usage) is that there is some legal precedent for using resolution in this manner. We, at one point in time I think, had some contributors who uploaded lo-res free versions of their work while keeping high-res versions on their hard drives under full copyright for licensing. That is perfectly OK. Daniel Case (talk) 20:44, 31 January 2010 (UTC)[reply]
- Delete. Dead or not, Salinger is not famous for his looks, so I don't see where the fair commentary is here. Pcap ping 19:38, 31 January 2010 (UTC)[reply]
- Use of an image of a person for visual identification of anyone is within legal fair use. Daniel Case (talk) 20:44, 31 January 2010 (UTC)[reply]
Post-factum tentative arbitrary section break[edit]
- I am confused here. I am familiar with our NFCC criteria, and the image seems to meet them. The OTRS request is irrelevant; it will be handled by the WMF legal counsel and we should simply ignore such things unless the legal counsel says otherwise. In particular, the actual "fair use" issue will be handled by them, and we only need to look at the NFCC. I see people saying there is some other reason to delete the image, but I don't know what it is. I am not personally in favor of the use of non-free images in general, but I don't see that this one violates the criteria that have been adopted for their use. Could someone give me a short (1-sentence) explanation of the issue? — Carl (CBM · talk) 22:59, 31 January 2010 (UTC)[reply]
- There are two issues; may I have one sentence for each? The first is NFCC #1: some allege that a non-free photo of a person is replaceable with a free textual description of the person's likeness or a free facial composite. The second is NFCC #2: some allege that Wikipedia's use of the entire photo interferes with the market for licensing the photo for use in encyclopedias and isn't even fair use, let alone acceptable on Wikipedia. --Damian Yerrick (talk | stalk) 00:42, 1 February 2010 (UTC)[reply]
- I see, thanks. In that case my personal opinion is that there is not a sufficient case to delete. Re NFCC#1, it's very widely accepted that a non-free image can be used for "identification" on an article about a deceased person; if we want to change that we should do so in a uniform way at NFCC, not in an ad hoc way here. But I doubt there would be consensus for such a change, so it should not count as a deletion reason here. Re NFCC#2, that is for the legal counsel to decide. If they don't step in, there is no reason we should go out of our way to delete images because of legal concerns. One point of the fundraisers is so that the WMF foundation can hire experts to worry about legal issues. — Carl (CBM · talk) 01:29, 1 February 2010 (UTC)[reply]
- While I'm usually opposed to people offering half-baked legal theories as to a reason to do something, it's quite clear the foundation expects us to use common sense and not refer every single decision when a legal issue arises to our lawyer. There are indeed plenty of cases when we make decisions for legal reason without having to refer to our lawyer, when the reasoning is clear and well accepted. In other words, there is merit to consider legal issues, and that's one of the reasons we have NFCC#2. It's not intended that we should ignore such requirements and require our lawyer to step in all the time and in fact if we receive legitimate complaints (I'm not saying this complain is legitimate, it's irrelevant to the point) over clearcut issues and our lawyer has to step in I think it's fair to say we've badly failed. Since there is dispute over whether NFCC#2 is an issue it would be helpful to defer to our lawyer in this instance, but in general terms NFCC#2 issues have to be deferred to our lawyer. Note that OTRS complaints are not always deferred to our lawyer as you think. In fact a lot of time they are handled by volunteers who upon receiving the complaints may raise the issue in relevant places. For example, we've been told of OTRS complaints at WP:BLP/N before and while they point to the article in question and may temporarily stubify the content, it's usually hoped and expected that we deal with the issues without any real guidance from anyone reading the OTRS complaint let alone our lawyer by ensuring the article adheres to policy. Nil Einne (talk) 11:31, 1 February 2010 (UTC)[reply]
- When our hired lawyer gives an opinion on a legal issue, I don't think they're "stepping in"; I think they're just doing their job. In cases that are obvious, such as clear libel, there's no reason to bother getting an opinion when the outcome is clear. But since the usage of this image is well supported by practice, if there is actually a legal reason to not use the image I would like to hear that from a lawyer, or at least read a published analysis that says so. Unfortunately, U.S. fair use law is not black and white. One has to make decisions based on the likelihood of winning lawsuits, which is what our lawyer would need to evaluate. — Carl (CBM · talk) 11:54, 1 February 2010 (UTC)[reply]
- Delete: There is other imagery of Salinger available. I don't see why we need to incur the wrath of a copyright holder so desperately for mere purposes of depiction. If the image were historically important, the case would be different. But there is no transformative use here, and the copyright holder has a very strong case against its use here. This isn't an issue of opinion. The closer of this FfD had better be very careful, and also perhaps consider contacting the Foundation's designated agent for direction. --Hammersoft (talk) 14:14, 1 February 2010 (UTC)[reply]
- But I think the justification for fair use on other images of Salinger, such as the one I linked above, would be harder (unless, á la Pynchon, someone found a photo of him taken in an official capacity while he was in the Army, which would of course be PD). I also can't imagine what case the rights holder (if indeed there are any rights to hold, which we have strong doubt based on the lack of evidence that they were renewed after 1978 as noted by Ruhrfisch above) would have that this detracts from commercial reuse based on current case law: it is at a reduced resolution that makes it more or less unusable for effective reuse in print, there are no ads on the page nor are there ever likely to be, and it is published with the copyright holder properly credited and an explicit fair use rationale. That's more than you get out of any other republisher.
As others, even those supporting deletion, have noted regarding any legal issues, if those require deletion then it will be done at the Office level regardless of the outcome of this FfD, so we should not consider it relevant that there is an OTRS complaint on this, especially as we cannot review it (and those who could cannot discuss the specifics) and do not know what the substance of it is. This discussion should stick to the FUC as its controlling authority.
I would argue that the image is historically important, precisely because Salinger had no more photographs taken with his permission for public circulation for the rest of his life and, concomitant with his apparent decision not to publish any more work after 1965 nor give interviews after 1980, became him for practical purposes. This issue of AB Bookman's weekly makes a similar point ... Jacobi's photos (there were several) are the only ones publicly circulating. Consider that before I found the first version of this image and uploaded it, Salinger's appearance in the infobox was depicted by the cover of Dream Catcher, with his young daughter in the foreground, a use which I consider less justifiable, not least because the FUC have been interpreted as saying that cover art can't be used for identification purposes save for a case (currently, purely hypothetical) where the cover art would be the only known image of a person. That's not even true here.
There is one circumstance under which I would agree we should delete this, though: if it turned out that the image was still copyrighted and that the request was being made by Salinger's family or at their behest to the copyright holder per some expressed wish of Salinger's to suppress all images of him. I know moral rights don't exist in American copyright law to the degree they do in Europe, but precisely for that reason if they are expressed informally in regards to a copyrighted work, some consideration should be given. In the case of Tomoko Uemura in Her Bath, I agreed we should not publish it due to the apparent desire of the Uemura family, who inherited the copyright from the photographer's wife at her express intent, to suppress it to the extent possible. But only under similar circumstances here, which I don't think exist, would I follow that same reasoning. Daniel Case (talk) 18:24, 1 February 2010 (UTC)[reply]
- Catch-22 Because there are so few images, it has substantial commercial value to the estate and publisher, as well as to the photographer. Iconic images are not really usable as "fair use" when the proper owner objects. Courts have held, for example, that use of even a single sentence can violate copyright in some cases., I would not like to see the lawsuit possible here. Collect (talk) 14:20, 1 February 2010 (UTC)[reply]
- Keep - The image is of a person of significant public interest. A free equivalent has not successfully been obtained and one cannot be created as the subject is deceased. It is only replaceable by another fair-use image, and so can be considered irreplaceable. The commercial use claim seems irrelevant, as this particular image is common across the internet and removing the one used here under a claim of Fair Use will not help protect that commercial value claim. Furthermore, since screen resolution is no more than 72-90 dpi, this copy of the image is of low resolution and, therefore, has little to no commercial value in and of itself. Burpelson AFB (talk) 23:32, 1 February 2010 (UTC)[reply]
- There are a dozen people looting a shop down my street. I'll go there to steal just a pair of jeans to me. This is not wrong to do: Not stealing it will not stop the shop owners of having a huge loss of merchandise by the ongoing illegal looting. I can't be accused of any wrongdoing. --Damiens.rf 00:46, 2 February 2010 (UTC)[reply]
- Apples and oranges. A pair of jeans does have commercial value in and of itself. Can't you just address the issue on its own merits, without resorting to hyperbole? Kafziel Complaint Department 00:55, 2 February 2010 (UTC)[reply]
- Keep: Images like this are exactly what our non-free content policy is designed to allow. --Carnildo (talk) 01:57, 2 February 2010 (UTC)[reply]
- Please, elaborate on that. And if possible, avoid commenting about WP:NFCC#1 since this is not being contested here. Try to focus on the WP:NFCC#2 (and maybe WP:NFCC#8) issue. --Damiens.rf 03:47, 2 February 2010 (UTC)[reply]
- WP:NFCC#2? "Original market role of the original copyrighted media" is illustrating the author on the book sleeve. How is reproducing the picture in the article about Salinger influencing sales of the book? One could easily argue that every book and album cover has to be deleted if we delete this image on the basis of WP:NFCC#2. — Yerpo Eh? 15:00, 3 February 2010 (UTC)[reply]
- First, Damiens, we don't do "with-permission" images anymore; haven't since 2005-05-19. Second, the way I read the Jacobi page, the "you have to negotiate" clause applies only to her Einstein photos, which it explicitly says are for viewing only. If it applied to the Salinger photos, then the AP, which used one of them as a file photo for years, would have had to facilitate its use every time one of its member media organizations used it. Third, even if it is under that restriction, it cannot override fair use, which legally all our fair-use images fall under whether they meet our internal criteria or not. Fourth, you have opened the door to that counterargument by simply asserting FUC 2 with little in the way of support for its application in a situation where all the other criteria are doubtless met (so you have effectively stipulated).
Imagine this were an AfD in which it was alleged that, despite the use of two cited instances of non-trivial coverage in reliable independent published sources, you were nevertheless beating the drums for deletion on the grounds that the subject of the article was nevertheless not notable (This is, of course, an entirely plausible argument to make although I have not yet seen it in practice). I think you'd agree that if we were to override the satisfaction of our own objectively-defined criteria in favor of a judgement that a subjectively-defined one had not been met, you'd need some pretty strong arguments to make to convince keep voters otherwise. You are in the same situation here.
The only argument I have seen to support FUC 2 is that the image is "rare". However, that conflates the fact that while images of Salinger are "rare" due to his reclusivity for most of his adult life, the series of images from which this was taken is not rare and indeed circulated widely, with no apparent objection raised by Jacobi, Salinger or UNH that we know of during his lifetime. An image of Salinger from later in his life which had not previously been published, or circulated widely, would be rare enough that at this point we could plausibly protect its market value by deleting our copy. But it does not follow that because Salinger declined to have any other official portraits taken that any images of him are "rare".
Your post did provide a useful link to the UNH page, and I have written to the contact there to see if she can shed any light on whether the copyright on the Salinger pictures was renewed at some point prior to UNH taking possession of them in 1981. Thank you, at least, for that. Daniel Case (talk) 16:53, 3 February 2010 (UTC)[reply]
- This has been explained above. Has it? The only "explanation" I found is the highly dubious hyperbole about the Lotte Jacobi Collection selling rights for the use of thumbnails (or not much larger images) on web pages. The only official commercial use of this image in 60 years has been illustrating the subject on a book sleeve (AFAIK). So no, my analogy is far from nonsense. Book and album cover artwork has been published and sold separately in numerous publications. — Yerpo Eh? 07:16, 4 February 2010 (UTC)[reply]
- In addition to its (actually rather limited, at Salinger's request) use on the book sleeve, the Jacobi images were used as media file photos, reprinted almost routinely to illustrate any story about Salinger. Daniel Case (talk) 14:53, 4 February 2010 (UTC)[reply]
- The above discussion is preserved as an archive of the debate. Please do not modify it. Subsequent comments should be made on the appropriate discussion page (such as the media's talk page or in a deletion review). No further edits should be made to this section.
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