On images and Fair Use

On the Jackface page, the gallery of images is disputed as a potential case of fair use (see the gallery which has been deleted here). We should debate the policy here to clarify rather than simply follow the law of the last edit.

I believe it is clearly fair use. The key ground for fair use is that a copyrighted work is used for purposes of parody, commentary or criticism, or transformed into a new work itself. I believe Jackface qualifies for all of these - each image and caption pairing clearly offers critical commentary on the show, using humor to create parody. The gallery itself is a new cultural object, a mosaic of images that only makes sense as a grouping, not as a set of links to separate images. On a practical level, the gallery is what makes the page relevant & effective, and it is clearly its own worthwhile "transformative work."

There is a clearly established precedent in publishing that you can use copyrighted images to illustrate a concept - books & articles about film & media do it all the time (see this link). Lostpedia's fair use policy, which has not been attended to for 3 years, is vague about galleries, but as a whole, assumes a much more restrictive stance than necessary. As far as I know, LP has never gotten a takedown request for images, and there is no reason to fear such actions when there are clear fair use rationales that justify making the site a better resource and assert the rights of users to reuse materials from Lost for fair purposes.

I look forward to debating this policy. --Jajasoon 04:11, 1 July 2009 (UTC)

That gallery which has been removed would definitely fall under the fair use laws of US law.

Reprinted here is the Copyright Act of 1976, 17 U.S.C. § 107 (

"Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."

Given that, we must look at all 4 points. I don't want to get into heavy detail so I'll keep each point short.

  1. First, as was mentioned, the "purpose and character of use" is not commercial in nature, and can be considered transformative. We are taking copyrighted video (the original work), taking screen captures and using it to document the different faces of Jack, in a CREATIVE sense. Creative is important here because we are encouraging the arts (parody). We are not using the copyrighted work to supersede it into another work, e.g. we are not "building" on top of the copyrighted work.
  2. I feel no argument can be made with (2). The work is fictional and published.
  3. Compared to the total amount of footage that is copyrighted by the studios, the screen captures are easily less than 1%. This allows for much greater consideration as 'fair use'
  4. These screenshots have no bearing on the value or market of the copyrighted work. We are not defaming the show, we are not intentionally causing damage to the show, and we are definitely not affecting the total amount of viewers they receive.

By looking at the 4 points that make up the fair use clause in copyright law, I feel like we more than fine. By the nature of wikis themselves, it's really hard to not fall under fair use unless we started just streaming episodes. CaseLogic 20:42, 1 July 2009 (UTC)

The idea of fair use is to use images to illustrate a point. There are already three images in the article being questioned that already make the point of the "phenomenon" of Jackface. There isn't a need for any more, especially as the article is such a short one. But just to point out
(1) Wikia is a commercial for-profit company.
(2) Its multiple images of the same character. Its a gallery and these are NOT fair use.
(3) This is a case in point. Galleries aren't needed to illustrate the point, a few images are.
(4) The effect can't be measured by ourselves. Could it be defaming or devaluing the actor in question. Thats a possibility.
There is no problem with images to illustrate points, and the article in question has that, but to make a page which is more images than texts is completely against the fair use doctrine. Both in its written implication, and moral. -- Plkrtn  talk  contribs  email  10:00, 2 July 2009 (UTC)
Using images to illustrate ideas expressed in text is one important role that fair use plays, but not the only one. If your analysis were correct, then parody fan remix videos would not fall under fair use - but there is clear consensus that they do, even when posted on a for-profit site. Likewise, collage art reuses images not to illustrate text, but to make a new cultural object. That's what galleries like Jackface do.
As to the question of "defaming or devaluing the actor," that's completely beside the point having nothing to do with fair use. US copyright law has nothing about moral rights or libel, and thus this issue cannot influence our policy. --Jajasoon 11:58, 2 July 2009 (UTC)

plkrtn, I'm curious where you are getting this information from, especially "the idea of fair use is to use images to illustrate a point." That is only a small facet of the idea of fair use. Also, do you have a source that proves galleries are not fair use? Because I have a feeling they can qualify as fair use just like many other things (including entire episodes of TV shows in some cases... see sony corp vs universal city studios).
Also, just because there are images that make a point on there already doesn't mean we need to go through and remove other images as 'excess'. Someone probably spent a lot of their time to go through and grab all those images, assort them into a table and caption them. There is really no need to remove them, especially on a page that revolves around a parody theme (Jackface). The purpose of the page is to insight humor, and the gallery provided that humor. The page is rather bland now without it.
Finally, I have conferred with my roommate who is about to start his third year at law school, and he agrees that there is a 90% chance that those images would have qualified as fair use. He also said that there is practically no chance that ABC would even take any action, because it's something so unsubstantial to their franchise. Moral of the story: fair use, and there's no point in cleaning up a parody page.--CaseLogic 14:27, 2 July 2009 (UTC)
The use of galleries on the wiki is not considered fair use because it goes above and beyond the use of the images to serve the point of illustration, and becomes a repository of images. All images tagged as Jackface are available in a list, and people can pick and choose from that list. If people want a website where they have a gallery of Jackface images, then that is easily available by creating their own galleries online. Furthermore, Jajasoon himself has argued before that Jackface is not a parody, its part of fanon, so by his very own argument we have no defense of fair use on the idea of parody. There are three images on the page that illustrate Jackface perfectly well. This is a single issue discussion over JackFace, and as such it should take place on the JackFace discussion page, not here. -- Plkrtn  talk  contribs  email  14:35, 3 July 2009 (UTC)
Once again you didn't back up your claims about "galleries" and "fair use". There is no stipulation about galleries and fair use, and fair use does not solely have to be toward illustrating a point. No offense man but did you even read anything I said? Also, after speaking with someone who actually studies law, does that not mean anything?
As for the place of discussion, you're right this should probably be under Jackface can you guys move it? [previous comment by CaseLogic]
I disagree about moving it to Jackface, as there are broader policy issues at play, even though there is only one case being discussed. And as I tried to make clear above, Fair Use is not just about parody (or illustrating a point) - all "transformative works" can have fair use claims.
Since this is less a LP philosophy questions than a legal one, I do think it's worth inviting someone with some expertise to clarify some of these debates. I'm not a lawyer (although I teach media studies and regularly write about and teach fair use/copyright issues) - I do know a law professor who researches fair use & copyright in pop culture. Can I invite her to weigh in? --Jajasoon 18:32, 3 July 2009 (UTC)
Well I mean I don't see why they'd have anything different to add. While my roommate is only a law student, he works at a pretty highly regarded law firm right now and has done plenty of research on the subject for lawyers. But it doesn't seem like plkrtn wants to budge on the issue, which is kind of unfortunate --CaseLogic 23:54, 3 July 2009 (UTC)

It's more than a repository of images. Jackface is itself a cultural phenomenon, and due to it being visual, example images are needed in order to have definition as well as commentary. This falls under fair use, as it's more than a collection of screencaps. -- Clayburn talk contributions email 08:49, April 21, 2010 (UTC)

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