Wikipedia:Replaceability of fair-use images

In 2006, in response to widespread abuse of fair use, Wikipedia began more strictly enforcing fair use criterion #1, which states that content so licensed may only be retained if:

No free equivalent is available or could be created that would adequately give the same information.

This was applied mainly to images, which account for the vast majority of fair-use content on Wikipedia. Many were deleted and not replaced. However, some are easier to replace as a practical matter than others. While Wikipedia and the community consider it a priority to produce and distribute free content which is perpetually free for unlimited distribution, modification, and application for all users and in all mediums, we are also equally committed to the goal of producing a quality encyclopedia. To do so we must permit some non-free material for critical commentary.

It has thus become necessary to produce guidelines for editors to use in determining, and reaching consensus, on whether an image is reasonably replaceable and a fair-use one cannot be used, even as a temporary solution pending the creation of a replacement free-use image. The following is meant as a draft policy for community consideration.

Definitions

• A generic image is one that accurately conveys the subject's appearance without any context.

• A quality image is one that is properly exposed, composed, and focused according to generally accepted standards of photography and has not been too visibly manipulated by any digital editing.

• A representative image is one that depicts the subject in a manner consistent with how he, she, or it is generally recognized and has been depicted in other photos, in a context with which they are widely associated, if it exists, or within the context of the specific article.

Replaceability in general

In theory, a free image can be created of anything that exists or anyone living. But in practice, access to possible image subjects by all but a few people is sometimes limited, impossible, or prohibited. Moreover, the free image that can be reasonably obtained may or may not be adequate in the context of the specific article. These guidelines are meant to help establish when the creation of a replacement image would be so unlikely that including a fair-use image is acceptable.

For images where a consensus has it that a free-use image can reasonably be created, no fair-use image will be used on Wikipedia in the interim, no matter how long that is. By relying and insisting on free content as much as we can, we encourage greater use of such content.

Historical unrepeatability

Any images of a historic event or of a subject at a specific time in the past that is discussed in the accompanying text are inherently unrepeatable and are permitted as fair use providing the other guidelines are met.

Guidelines

Living people

An image of a living person may or may not be reasonably replaceable depending on the circumstances. In many cases (see below) a generic image of the person may be obtained. However, a generic image of the person may or may not be adequate for the particular article where the images depicting the person's participation in a historic event or images showing that person's work rather than merely how the person looks like are used to illustrate the article's text. A generic free-use image must be used over a representative fair-use one if there are no historical issues (such as a now-retired athlete or entertainer in an infobox devoted to summarizing career information).

Reasonably replaceable

An image of a living person is reasonably replaceable if the generic image of the person is deemed adequate in a particular article and such image can be reasonably obtained because that person:

• Makes regular, scheduled public appearances, or
• Frequently grants interviews in the news media or allows themselves to be photographed by professional photographers, or
• Routinely resides or works in a known location, accessible to the public and alongside non-notable persons, or
• Is known to go about their daily affairs in locations freely accessible to the general public, and
• Permits photography of themselves by anyone in close proximity under conditions amenable to the production of a quality, representative image using commonly available photographic equipment, even during chance encounters, or
• At one point in their lives, allowed or is likely to have allowed a quality, representative public-domain image to have been taken of themselves.

Examples: Most minor celebrities or celebrities only within a narrow field. Many authors, politicians, and academics fall within this group. Hilary Putnam, Germaine Greer, Larry Niven, Howard Dean, and Dan Savage are examples of this category, all represented by free images.

In these cases no fair-use image will be permitted, even if no replacement image exists.

May not be reasonably replaceable

An image of a living person may not be reasonably replaceable if that person:

• Makes limited or unscheduled public appearances only (therefore their appearance cannot be predicted), or
• Rarely grants media interviews or allows few, if any, photographs to be taken of themselves for professional purposes, or
• Regularly resides or works in a location not generally known or to which access is restricted, or not among non-notable individuals, or
• Resides in a known location, but distant from population centers, or
• Goes about their daily affairs in locations not freely accessible to the general public, or in a jurisdiction where unsolicited public photography of a person is legally discouraged, and
• Discourages photography of themselves, or permits it only under conditions which can adversely affect the quality and representativeness of an image taken using commonly available photographic equipment.

An image may also not be reasonably replaceable if the historical activity that led to their notability may not be adequately illustrated by a generic image.

A image of a person which, under normal circumstances, would be judged reasonably replaceable but is, at the time of discussion, under different circumstances (incarceration, hospitalization etc.) for an indefinite period may be assigned to this category temporarily and represented by a fair-use image. At such time as normal circumstances resume, however, the fair-use image may no longer be used.

Images of a person about whom not enough is known to make a definitive judgement under these criteria shall be presumed to fall under this category until enough is known to make a conclusive judgement. They will be subject to regular review to see if more is known, or if circumstances have changed enough to make a definitive judgement.

Examples: Most celebrities – particularly big-name actors, athletes or musicians – who are generally separated from public. They may employ bodyguards who prevent people from taking unauthorized photographs and publicists to manage their public image, including promotional photographs. Even when the free generic image is available or may be taken or obtained, it may poorly represent the role of the visual appearance in the notability of the particular celebrity: Britney Spears, Madonna, Tom Cruise, and Barbra Streisand are examples. Those articles use free images, but they were obtained under circumstances not generally available to the average person and not ideal for quality image creation.

Images that may not be reasonably replaceable can be kept at the discretion of the community. They should be tagged with {{fair use replace}} in the interim.

Not reasonably replaceable

An image of a living person is not reasonably replaceable if that person:

• Makes no public appearances at all, or
• Resides and works in an unknown location, or one to which access is rarely ever permitted or difficult or hazardous, or
• Does not go about their daily affairs in any known or accessible location, or
• Has permitted photography of themselves so rarely that only a few are known to exist.

Examples: All longtime prisoners who are not likely to be released anytime soon, if ever (Manuel Noriega, Jonathan Pollard, David Berkowitz), fugitives who are not known to have found safe haven somewhere, but without a reason to believe they are dead (Osama bin Laden, James J. Bulger, D.B. Cooper), and missing or whereabouts-unknown persons who are not yet presumed or legally declared dead (Amy Lynn Bradley, Johnny Gosch, Carlos Lehder). People who have historically shunned public attention despite being notable (often referred to in the mainstream media as recluses) (J.D. Salinger, Thomas Pynchon, Bill Watterson, Jennifer Fitzgerald) also fall into this category.

Fair-use images of these persons are permitted.

Deceased persons

Since the lives of deceased individuals are unrepeatable historical events, fair-use images are permitted if no quality, representative free images taken during their lifetimes are known to exist.

Locations

An image of a location is reasonably replaceable if:

• it can be freely visited or viewed by many people from a distance at which a quality, representative image could be created using commonly available photographic equipment, and
• photography is permitted under most circumstances.

An image of a location is not reasonably replaceable if:

• It cannot be freely visited or viewed from a distance at which a quality representative image could be created using commonly available photographic equipment, or
• photography of this location is not permitted.

Most locations fall under the first category and are consequently represented by free images. Some places that fit the latter category are the buildings at Area 51 and many locations in North Korea (see rare free-use image).

Objects

An image of an object is reasonably replaceable if:

• It is located where it may be viewed and photographed (with any reasonable restrictions that may be necessary to protect it) by the general public most of the time.
• It is a product that is currently on the market and can be photographed without demonstrating an intent to purchase.

An image of an object is not reasonably replaceable if:

• It is not located where the general public has access to it, or where photography is not regularly permitted.
• It is located where the general public has access to it and may photograph it, but under terms of access which do not permit the creation of free images (such as in many museums).
• It is a product that has not yet been released to the market, or is sold only in extremely limited quantities, or has been off the market for a long enough period of time that only limited quantities exist.
• It is of a three-dimensional work of art, produced by an artist whose works are still protected by copyright, in a jurisdiction where that category of artwork is not covered by a freedom of panorama statute. These images, regardless of who actually created them, are considered derivative works (thus still copyrighted) and must be tagged with {{statue}}.

Images of rare fauna and flora

The replaceability of pictures of rare plants and animals should be determined by

• the breadth of the species' geographic range;
• the likelihood of such species being located in areas accessible to the public;
• the length of time when such species are most likely to be photographed, and
• the historical probability that such an image can be obtained,

in addition to the other criteria.

Image quality

A free-use image that is to replace a fair-use image, regardless of whether there is an existing image in the article(s) or not, must be of equivalent quality to most extant images of the subject (although it does not have to be of equivalent quality to the exact image it replaces). We can only credibly insist on free content if we demand quality comparable to non-free content. We must be both a free encyclopedia and a quality encyclopedia.

Images that are deemed to be low quality are to be removed and deleted per the image deletion guidelines.

Replacement images

An image found or created to replace an existing free-use image in the name of improved picture quality must also be a free-use image, since a free image is inherently replaceable by another one. Only if there has been a drastic change in the accessibility of the subject since the original upload, to be decided by consensus, and a new image communicates information reflecting this change, will a fair-use replacement be accepted.

Two paths to replaceability

A fair-use image can be replaced with a free image in two ways:

• An existing image included under fair use is relicensed freely, either under an appropriate free-use license (such as the GNU Free Documentation License or a compatible Creative Commons license) or by the copyright holder releasing all rights. However, the possibility that the copyright holder may freely relicense the image is not, in and of itself, a reason to delete it as replaceable.
• A free image is created or found to replace it.