User talk:Dustin McAmera

Image rights

Hi Dustin. Since you're interested (or interestable) in copyright stuff, take a quick look at this list. Many still assume that this website is "Camerapedia" -- ouch! Well, this is straightforward, and I'll fix it in the next couple of days. However, there's another problem (I think). It's exemplified in French document in public domain, after 1923, though it pops up all over the place. I quote:

[These materials] are not in public domain in the United States [...]. Republication of advertising material published in France in that period probably falls under fair use for US legislation, and it is thus accepted in Camera-wiki.

Click the link to "fair use". Do you see anything there that suggests that republication of this is likely to be thought "fair use"? I don't.

Of course, common sense says that if either (a) it's mere advertising or (b) it's anyway in the PD in the nation of its origin -- let alone both (a) and (b) -- then only a loony would kick up a fuss about it. But this is a question of law, not of common sense.

(You're not a lawyer? Neither am I. But I think that we're both qualified to read an article about "fair use" -- not that this article should be assumed to be authoritative, of course.) Zuleika 03:44, 24 March 2011 (PDT)

Actually, I think it's ok

Hmm. for what it's worth, I'm an out-of-work engineer. I'd be entirely happy to leave the whole field to someone else... As you suggest, common sense suggests that the original owner of the advert, be that an advertising company who owned it as artwork, or the camera company who used it to sell cameras, would have been happy to see it distributed as widely as possible. The present owners of copies of the advert might be unhappy to see it reproduced on the web because their copy is rendered less valuable as a collectable object; but I don't think those people have any share of copyright in the image.

I had a look at the Wikipedia article, and convinced myself that there is a case that this is Fair Use. I've written a bit about that below. Now, there is an image_rights category called Fair Use. As I recall, it's discourgaed in the Help pages. I suppose categories like this 'French doc in PD after 1923' one (and its like) exist to embody the fact that someone has considered whether it's fair use or not, so that less intellectual/interested editors don't need to. I think it might be worth adding some words to the Help, encouraging people to consider whether their use of an advertising image is scholarly; our use of them is less defensible if they are just decorative.

To consider each of the factors in the definition of Fair Use given:

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

I think the use in the wiki is usually defensible as scholarly and non-commercial. The old advertising is (in the overwhelming majority of cases) being used because it provides a picture of a camera (or other product) or information about the specifications and price when the camera was new, or information as to what the makers claimed about the camera, or even simply the identity or address of the makers (I've seen this use of Japanese adverts in some of Rebollo_fr's articles on Japanese cameras).

2 the nature of the copyrighted work;

The Wikipedia article suggests that in principle, the nature of the work doesn't limit the applicability of Fair Use, or make it open season on any category of work. However, I suspect it would be taken into account that the original purpose of the work was short-lived; to advertise the availability of a product. That purpose is over. It might be argued that the work has a new nature as a collectable document; but I don't think we threaten that anyway, because its nature as a collectable object comprises more than the reproducible image; it rests on its authenticity; age, condition, nature of the paper, etc. none of which we are using.

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

I have a tiny doubt what 'the work' is in this case. I have seen old advertising on Flickr as individual adverts scanned from magazine pages, and also as whole pages of adverts. I've seen it as pages or part-pages of books too, elsewhere on the web (e.g. Google books and some US libraries' web sites, who have downloadable PDFs of whole photographic manuals from the early 20th century, including advertising). If 'the work' were the book or the magazine, it would be arguable that the proportion being reproduced is small. However, I think the division between editorial content and paid advertising is clear enough to dismiss that argument; usually we are reproducing a whole 'work'.

However, I don't think it's a problem. I think the issue of amount used and that of the purpose of the use have to go hand in hand. The Wikipedia article says under 'Practical effect':

The practical effect of this law and the court decisions following it is that it is usually possible to quote from a copyrighted work in order to criticize or comment upon it, teach students about it, and possibly for other uses. Certain well-established uses cause few problems. A teacher who prints a few copies of a poem to illustrate a technique will have no problem on all four of the above factors (except possibly on amount and substantiality), but some cases are not so clear. All the factors are considered and balanced in each case: a book reviewer who quotes a paragraph as an example of the author's style will probably fall under fair use even though he may sell his review commercially. But a non-profit educational website that reproduces whole articles from technical magazines will probably be found to infringe if the publisher can demonstrate that the website affects the market for the magazine, even though the website itself is non-commercial.

Although we may be reproducing the whole work, we aren't threatening a market for it. We are that teacher with the poem.

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

I think this one is clear. In any case where the advertising is old enough to be PD in France, the camera is no longer available as the new product advertised, so the value of the advertisement cannot be harmed. I doubt that its value as a collectable document is harmed by reproduction of a small image of it on the web. A third party could download the image, and try to make fakes for sale; but that would be their offence, and the same could happen to any image we use.

--Dustin McAmera 09:53, 24 March 2011 (PDT)

Not to butt in, but just as an example of "fair use" take a look at this scan, or this one which I used here. In the captions to those scans I laid out my own "fair use" reasoning. It may be helpful in considering what kinds of cases to take into account. --Vox 10:52, 24 March 2011 (PDT)