RE: Re: Using Logos in Wikipedia Articles without permission

From: Smith, Robert E. <smithre[_at_]ctsfw.edu>
Date: Fri, 06 Oct 2006 14:25:07 -0400


Dear Steve:

Thanks for the kind tone. No, I'm not a lawyer, but a theologian. (I'll save the cracks about that being nearly the same thing 8-) )

I also appreciate the time you've taken to help me sort this one out.

I'm not precisely sure where my information came from on the accredited institution front. If I find the specific source of it someday, I'll let you know.

What I do know is that I have been repeately advised to make the educational use of our copying air tight -- in Electronic Reserves, for example, to secure with a password, available only to those who are taking a specific course, to remove the materials from the server hetween terms, to add them only at the specific request of a professor. Perhaps that is where I get this from.

As far as the library sites, etc. I visit all of them regularly. They all have the practical bent of helping librarians make reasonably safe copying decisions that they and their institutions can be comfortable with and that still assert the fair use defense when making reasonable use of materials. It is mostly from these that I came to the conclusions I did in my analysis.

Again, thanks for the insights. I'm going to drop this aspect of my arguments on wikipedia. I wish I could be sure about other analysis I've done.

Bob

-----Original Message-----
From: CNI-COPYRIGHT -- Copyright & Intellectual Property on behalf of Steven Jamar Sent: Wed 10/4/2006 4:20 PM
To: CNI-COPYRIGHT -- Copyright & Intellectual Property Subject: [CNI-(C)] Re: Using Logos in Wikipedia Articles without permission  

There are any number of weaknesses in your analysis, Bob. It would appear that you do not have training in the law.

The first factor is not educational v. commercial. Rather, it is "the purpose and character of the use." That is what you need to analyze and decide which way it cuts. Commercial or nonprofit educational use are just two examples of common types of uses mentioned explicitly but do not exclude other sorts of uses. Transformative use matters, but again, is only an example of a type of use that affects the analysis of fair use. Also, your narrowing of the educational purpose example is mistaken. The nature of the institution is a factor in assessing the nature of the use, but one need not be an accredited institution of education for the use to be educational. I can use something to teach others, but I am not an educational institution of any sort.

The wikipedia article is educational. The wikipedia itself is educational. The inclusion of the symbol is educational (it teaches the reader how to recognize this sect by their symbol by showing the symbol). It is not commercial use -- it is not being used for advertising or any other commercial use. More could be said, but in general, I think this factor is far from neutral, but rather quite clearly cuts in favor of it being fair use.

As to the second factor, the fact that work is graphic in nature isn't really the point of the nature of the copyrighted work factor. It is graphic. But it is also informational by nature (not purely decorative). And it is a trademark, probably even a registered one. Furthermore, it is not a particularly original work -- it is just a pedestrian "t" shape or cross shape with some special features (color, three lines for the trinity (I assume), and some other artistic aspects). So, though it probably could get a copyright, it is on the edge of copyrightability. The nature also includes the function of the work. Since it is used to identify the sect, it is more functional than artistic and thus further away from the core of protected works of copyright. And the wiki use of it is just the same as the lutheran sect's use -- to identify. So again, your analysis on the second factor is seriously underdeveloped.

Third factor: wiki used the whole thing -- but the nature of the work and of the use require that the whole thing be used. So wiki used only so much as it had to use to accomplish its intended use. so this factor doesn't count for much.

Fourth: clearly no effect on the potential market or value of the work. This cuts strongly in favor of Wiki.

This is an easy case to me -- it is fair use.

But, like any other lawyer with experience, my prediction could be wrong. I'm pretty confident in this assessment in this instance, but courts do curious things sometimes and there could be some factors beyond the four that I am not aware of that could turn things around. The four factors are not the only factors to be considered. Fair use is an "all the circumstances" sort of thing. Under all the circumstances, including but not limited to an assessment of the four listed, is the use fair?

I recommend looking at a few of the many very good sites online maintained by others, especially librarians at a few universities, on fair use.

Steve

On Oct 3, 2006, at 10:59 PM, Smith, Robert E. wrote:

> Dear John:
>
> Thanks for the commentary! It is helpful.
>
> The use for the logo is for an article on the Lutheran Church--
> Missouri
> Synod -- and for any other article or image gallery, etc. a Wikipedia
> editor wishes to put it to.
>
> My analysis for the first factor was Wikipedia is not entitled to
> claim
> educational use, since it is not an accredited institution of
> learning.
> It is also not a commercial enterprise, nor is its purpose commerce.
> (although some entities are downloading and putting their articles for
> sale on CD-ROMs). There is no discussion of the logo on the LCMS page
> itself, although there is on the image information page. I wasn't sure
> if simply putting the image in a new context (which seems to be the
> purpose for the image to start with) would be seen as
> transformative. So
> I was unsure which way this factor would fall, so I deemed it neutral.
>
> For factor two, I see the logo as a work of graphic art and thus the
> factor weighing against fair use.
>
> For factor three, I see the logo being used in its entirety, and thus
> weighing against fair use.
>
> For factor four, since the image is given away free, I do not see an
> effect on the market. So this factor would tend to support fair use.
>
> I concluded, then, the use of the image was not fair use.
>
> Are there flaws in my reasoning?
>
> Bob
>
> Rev. Robert E. Smith
> Electronic Resources Librarian
> Concordia Theological Seminary
> Fort Wayne, Indiana
> "Translatio traditio est."
> -- attr. St. Jerome

-- 
Prof. Steven D. Jamar                               vox:  202-806-8017
Howard University School of Law                     fax:  202-806-8567
2900 Van Ness Street NW                   mailto:stevenjamar[_at_]gmail.com
Washington, DC  20008	                         http://iipsj.com/SDJ/

"For all men of good will May 17, 1954, came as a joyous daybreak to  
end the long night of enforced segregation. . . . It served to  
transform the fatigue of despair into the buoyancy of hope."

Martin Luther King, Jr., in 1960 on Brown v. Board of Education




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Received on Fri Oct 06 2006 - 22:25:07 GMT

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