Wikipedia:Fair use overuse

This is an essay.

It contains the advice or opinions of one or more Wikipedia contributors. This page is not an encyclopedia article, nor is it one of Wikipedia's policies or guidelines, as it has not been thoroughly vetted by the community. Some essays represent widespread norms; others only represent minority viewpoints.

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In 2007, a number of editors began removing large quantities of fair use images from various articles throughout Wikipedia, citing Wikipedia:Non-free content criteria items #3(a) and #8 as basis in policy for doing so. This page is intended as a more thorough explanation of why this is being done to supplement short edit summaries.

What is 'fair use' anyway?

Fair use is a concept that exists only in United States law. Fair use law permits under narrow circumstances the use of copyrighted works in other works without the permission of the original copyright holder. Examples of this include parodies of musical works (such as those by "Weird Al" Yankovic) and the use of copyrighted works in secondary works that conduct critical commentary on the original.

Fair use law is deliberately vague. Cases over history have given guidance on what may or may not constitute fair use. However, there is no 'bright line' test wherein one can definitively state that a given instance of reuse is fair use. Analysis is done on a case by case basis.

Some countries, in particular many within the Commonwealth of Nations, adhere to the somewhat similar concept of fair dealing.

Discussing the law in any more detail on this point is not particularly pertinent to further discussion on Wikipedia's policies: Wikipedia's policies are intentionally a superset of fair use law, and our practices are more restrictive than what the law would have us adhere to. There are several reasons for this, one of the more important of which is that there is little to be gained and much to be lost by flirting with the boundaries of the law. For the most important reason, see 'Mission of Wikipedia' below.

The policy

Wikipedia's policy that is being cited as basis is from Wikipedia:Non-free content criteria items #3(a) and #8:

3. (a) Minimal use. As little non-free content as possible is used in an article. Short rather than long video and audio excerpts are used. Multiple items are not used if one will suffice; one is used only if necessary.

8. Significance. Non-free content is used only if its presence would significantly increase readers' understanding of the topic, and its omission would be detrimental to that understanding. Non-free media files are not used if they can be replaced by text that serves a similar function.

The focus of both of these items of policy is to limit the use of copyrighted, fair use imagery as much as possible.

This concept was further upheld by the Wikimedia Foundation in their March 2007 resolution on the matter found at Foundation:Resolution:Licensing policy.

Mission of Wikipedia

It is exceedingly important for any person objecting to the removal of fair use images to understand the basic precepts on which Wikipedia is founded. Any discussion on these issues is essentially meaningless without a crystal clear understanding of our mission. Read m:Mission. This is our guiding light, what we strive to achieve and where we want to go. It states that our mission is to "develop neutral educational content under a free content license".

Copyrighted imagery cannot be defined as "free content". Rights are held by the original authors and we are not free to use the work in any way we so please.

Why is this mission important? The purpose of Wikipedia is epitomized within m:Vision, "Imagine a world in which every single human being can freely share in the sum of all knowledge. That's our commitment." Creating a free content encyclopedia strongly supports our mission and vision by making all of this knowledge freely available for any purpose whatsoever. Anyone can use it, anywhere, anytime, for any purpose. This eliminates barriers to knowledge.

Take an example: in the 1950s you could purchase a paper-based encyclopedia for a tidy sum of money. Households with adequate resources often purchased encyclopedias for their home libraries. Institutional libraries purchased many such encyclopedias and added them to their collections. This structure provided knowledge, but there were barriers to access. For home use, you had to be reasonably well off to afford one. For library use, you had to have a library somewhere nearby that had such an encyclopedia. It was a convenient system:

Take knowledge that was freely available to people in various forms.
Condense it and vet the material using paid reviewers to create publishable content.
Package it in the form of a readily indexed set of books.
Sell what was common knowledge for a profit and make millions.

The encyclopedia writers didn't conduct the research to come up with the knowledge they shared. They didn't publish original works. They didn't create anything new, per se: they repackaged what was available in other forms and convinced people it was reliable as a reference (which, in fact it was: unlike Wikipedia editors, the editors and writers of paper encyclopedias were paid professionals who were often the leaders in their fields— the inclusion of inaccurate information was severely limited, whereas Wikipedia's free-for-all approach to editing comes with the risk that this freedom will be abused, which it often is, though the freedom to correct that abuse acts as a counterweight).

With Wikipedia, knowledge is theoretically available at no cost to all people anywhere so long as they have the means to access the Internet. Of course, there are still barriers to accessing this knowledge; Internet connectivity is still not ubiquitous in Africa, for example, so Wikipedia is still not available to the masses there. This is where the concept of downstream use comes into play. One of the intended outcomes of Wikipedia is to produce a cheaply printable version of Wikipedia for distribution. See [1].

One of the obstacles to this creation is having to scrub copyrighted content from Wikipedia material to create the printed version. This is a laborious task, and creates barriers to this downstream use. Thus, the use of copyrighted works significantly hampers our mission to reduce barriers to human knowledge as much as possible.

All people, whether they be Bill Gates or a ten year old barely eating enough every day to stay alive, have the birthright to access the sum of all human knowledge. Copyrighted material interferes with that birthright, and so its use must be controlled. That is our calling. That is why the use of copyrighted material must be strictly limited.

Ways in which this is being applied

This is not an exhaustive list. There are other types of articles to which this is being applied. The basic aim is to reduce the mass use of "fair use" images in articles.

Album covers are being removed from discographies. For example, before and after. Album covers are acceptable on articles regarding that particular album, but not on discographies.
Screenshots are being removed from episode lists. For example, before and after.
Character images are being removed from character lists. For example, before and after.
DVD covers from season DVD lists. For example, before and after

Disputed?

A number of people have claimed that since there is substantial opposition to the application of this policy that it is in fact in dispute, and thus not something that should be enforced. Specifically, the argument usually states that until such time as consensus forms to support application of the policy it should not be enforced since the community does not support it. While it is true that many processes on Wikipedia depend very heavily on the concept of consensus, in this case the application of that concept is flawed.

It has always been the goal of Wikipedia to develop free content. Indeed, it is one of the five pillars of Wikipedia. Our policies are descendant from our goals. Goals can and do trump policy as needed to ensure we maintain our focus on those goals. Consensus building is a process to achieve those ends. It is not, however, the only one.

To take an extreme example, let us imagine a random sample of five hundred editors who it was found nearly all agreed (say, 95%) under the pretext of "fair use" that digital mp3 recordings of popular new songs should be allowed for upload and linking to their respective Wikipedia articles. Consensus would be read that this should be allowed, and perhaps, it would be argued that such content "added significantly" to the educational nature of the articles. Yet, consensus in this instance would have fundamentally erred: the fact is that in the U.S., there have been a huge number of lawsuits filed against people who have downloaded mp3s illegally via file sharing networks, and companies that provided software to make this happen have had cases brought against them in federal court and have routinely lost. As an example, see Napster#Shutdown. Consensus in this case would have us driving off a cliff and dooming Wikipedia to lawsuits that would most likely bankrupt our operations. We would never allow this. In this particular case, a legal goal (i.e., our continued existence as an entity) trumps popular but erroneous "fair use" consensus.

Prior debates

There have been a number of debates regarding these removals. The two most significant debates centered around:

The removal of fair use screen shots of episodes in "List of episodes in..." articles. This was covered by Wikipedia:Signpost in their Wikipedia:Wikipedia Signpost/2007-05-07/Fair use article.
The removal of fair use album covers from discography lists. Debate on this was scattered across a number of talk pages, but most centrally located at WP:NFCC talk page, Talk:The Beatles discography, Wikipedia talk:Fair use rationale guideline and Wikipedia:Administrators' noticeboard/FURG.

The outcome of both of these heavy debates was that the removal of fair use images in these cases continued.

FAQ and frequent defenses

One reader of this page stated on its original talk page that this FAQ section was created not from actual questions, but just created by me to spin discussion. This simply isn't the case. The questions and defenses listed here come from actual encounters.

Q: The copyright holder of these images said it was ok to use them on Wikipedia. Since they gave us permission, why can't you let us use it how we want?

A: Jimmy Wales, who is the founder of Wikipedia, took a stance against this class of copyrighted work in May 2005. See this letter from him stating the new position vis-a-vis such works. Some of Wikipedia's policy descends from that letter, in particular Wikipedia:Criteria_for_speedy_deletion#Images_and_media item #3 which allows for the speedy deletion of any media tagged as used with permission or used under a non-commercial license.

Wikipedia supports the concept of downstream use for commercial purposes. I.e., any party is welcome to use the content of Wikipedia for any use, even if it means that such use results in a profit. This is an important concept to understand, and is fundamental to Wikipedia. See 'Mission of Wikipedia' above.

Q: Including these images is something the copyright holders would want. [2]

A: Discerning the intent of copyright holders is black magic. We cannot foretell what they would or would not want. For example, it might be true that 90% of copyright holders of album covers would gladly want the free publicity for their works. Yet, the 10% that would not want that would be angered by such use. This is detrimental to Wikipedia. Wikipedia presumes any content is copyrighted and the holders of said copyright are willing to defend that copyright until such time as we have positive proof that copyrights have been released and/or the content is available under a free license. If you firmly believe that X entity would be happy to have the material used, you can make a request of them to have the material released under a free license. For assistance in making such requests, please see Wikipedia:Requesting copyright permission.

Q: This use is legal under fair use law. If the law doesn't mind, why does Wikipedia?

A: Wikipedia's policies are a superset of the law. See 'Mission of Wikipedia' above for why.

Q: The prior debate on episode screen shots and discographies is not the same as this. This is a new debate, and needs to be decided on consensus.

A: While some might disagree, the issues are the same on a fundamental basis. The overuse of fair use images does not contribute to our mission. We must limit copyrighted material use as much as possible in order to further our progress towards our goals.

Q: This is just your interpretation of policy. My interpretation doesn't agree with yours, and mine is just as right as yours, so I'm going to include the images.

A: As seen in the 'prior debates' section above, there's a rather large number of people that support this application of policy. No solo interpretation of policy is being made, nor would there be. The removal of such large quantities of images is obviously something that would draw massive amounts of attention. Anyone conducting such removals would have to be doing so with strong support, else such efforts would have already been stopped. This effort is strongly supported across a wide number of editors.

Q: The article looks like crap without the images.

A: While this might be the case, this is not a sustainable argument in favor of keeping fair use images on articles in breach of our policies. Fair use law, much less Wikipedia policies, do not support the use of copyrighted works for decorative purposes.

Q: You're disrupting Wikipedia.

A: No, we're not. We're upholding the goals and mission of Wikipedia.

Q: I'm reporting this and will request you be blocked.

A: Nobody has ever been blocked for upholding this policy. Conversely, a number of people have been blocked for violating said policy. You are welcome to report this, but understand it is highly unlikely you will find support for your complaint. If an editor who is upholding this policy is acting in an uncivil manner, or violating some other Wikipedia policy, there might be a basis for the complaint. However, a complaint based solely in opposition to the enforcement of this policy will not gain traction.

Q: You're an image Nazi.

A: See Godwin's Law. We're not jack-booted thugs committing the Wikipedia equivalent of Kristallnacht. Those of us focusing our attention on this effort are focused on the goals of Wikipedia.

Q: Including one image for each character on a "List of ..." type article IS minimal use; it's one image per character.

Example: [3]
A: This might seem reasonable on the surface. This is a fairly common defense. Even so, it fails our minimal use requirements because such articles would therefore contain dozens (and in some observed cases [4][5]) hundreds of fair use images taken from copyrighted works of a single copyright holder. This creates a large body of copyrighted work attempting to be used under fair use terms, which is highly problematic by itself. This is even worse when we remember that Wikipedia's stance on fair use usage is even more restrictive than the law permits. If a given character is significant enough to have their own article such that a "List of ..." type article would have a {{main}} link to that character's article, then it is appropriate to have a single fair use image of the character for depiction purposes on that character's article. If a character is not significant enough to have their own article, their status within the universe of the depicted series is minor, and it becomes exceptionally hard to justify violating our core m:Mission by having a fair use image for such a minor character. It's not crucial to a reader's understanding of the overall series; they can gain such understanding via the main character and main universe articles.

Q: Would creating a montage image of all the disputed images together clear up this problem?

Example: [6]
A: No, it wouldn't. The point is not the number of images, it's the nature of their use. Whether there are 50 independent copyrighted images or one image with all 50 copyrighted images in it, it's the same violation.

Q: How can one image be excessive fair use?

Examples: [7][8]
A: It's not the quantity but the nature of use that counts as excessive. One image can be excessive in some cases while ten in other cases might not be. See the above question "Including one image for..." How an image is used is the salient point on this aspect, not how many are used. It is typically the case that images used for depiction purposes only are rather tightly restricted to articles pertaining to the particular thing being depicted, not superset articles such as discographies, list of characters, artist pages, etc. If an image is used for more than depiction purposes such as critical commentary on the image itself, then it may be acceptable outside of an article regarding the image itself. Depiction alone is generally not enough.

Q: Can't we compromise by including fewer images?

Example: [9]
A: See prior question. Again, it's not the quantity, it's the nature of use.

Other Wikipedias

Most other Wikipedias permit at least some use of non-free content.

If you want to change this application of policy

As seen in the above section on 'prior debates', this issue has been argued at length before. No substantive changes to the application of policy have occurred that favored more inclusion of fair use images. It is not in the interests of the volunteers who contribute their effort to Wikipedia to repeatedly rehash old debates on this subject. Such efforts consume and waste volunteers' time, and result in no change to our practices. We do not state this to quell debate. Rather, we strongly encourage you to read the prior debates and the FAQ section of this page and evaluate if a particular argument you'd like to raise has not already been raised and merits discussion.

Badgering people who are working to support our missions and policies will not yield beneficial effects. Insulting these people will result in decidedly negative outcomes for your editing privileges if you persist in insulting them.

If you want to foment change, you need to bring the matter before the Wikimedia Foundation and make a clear case as to why including more fair use content is a good practice that supports our mission. If this policy is to ever change, that is the only route by which it will happen.