Image:TrangBang.jpg was proposed for deletion. This page is an archive of the discussion about the proposed deletion. This page is no longer live. Further comments should be made on the article's talk page rather than here so that this page is preserved as an historic record. The result of the debate was ambiguous. Failing to reach a clear consensus to delete, the image is kept. It should be noted, however, that several specific legal questions were raised during this dicussion. The Votes For Deletion process is a consensus-building process designed for making policy and editorial decisions about encyclopedic content. The decision reached by the VfD process should not be considered binding on any future decisions specifically addressing the legal issues involved. Rossami 07:08, 21 Aug 2004 (UTC)

Keep

Delete

(permission verbally denied by API NY)

Abstain or Ambiguous vote

Image:TrangBang.jpg

This image is clearly copyrighted by the AP. See here for proof of that fact. People argue it's fair-use. It's not our place to argue these sort of things. Terms state clearly that copyrighted material is not to be submitted. ~~Delete~~ ASAP. — マイケル ₪ 16:26, Aug 7, 2004 (UTC)
- After extensive discussion on the Wikimedia Foundation Mailing List, I've decided to retract my vfd. Keep — マイケル ₪ 21:42, Aug 11, 2004 (UTC)

Delete. A lightning rod for legal problems. WP's claim to using this photo is uncertain at best; I don't see any good reason for leaving solid ground for a legal morass. Wile E. Heresiarch 17:16, 7 Aug 2004 (UTC)
I agree (delete). This image is obviously still under copyright, and the people you see using it have either paid for it (BBC) or are using it illegally (everyone else, including the person or people who keeps putting it back.) I also do not think it is a good example of strategic bombing. This would really fall more under a tactical scope. And the origin of the incident in question is in doubt, as well. -Joseph 17:01, 2004 Aug 7 (UTC)
No, the photographer is not supposed to make money off it every time it is used. US law never grants the photographer a monopoly over fair use of a work, so no license or payment is required for any fair use.Jamesday 03:07, 8 Aug 2004 (UTC)

This is not fair use. See below. -Joseph 22:39, 2004 Aug 8 (UTC)

Keep. Fair use. One of hundreds of images currently posted in articles of similar status. 172 18:24, 7 Aug 2004 (UTC)

How is it fair use? Can you prove it? Just because they have it doesn't make it so. A photo being famous doesn't automatically make it public domain, or even fair use. This was a newswire or magazine photo, right? That makes the photo the property of the photographer, publisher, etc., and he is supposed to garner money off of it every time it is used. So unless he or his agent gave you permission, it is verboten. Furthermore, here is the link you can use to purchase the photograph in question on behalf of Wikipedia, if you choose. [1] -Joseph 19:51, 2004 Aug 7 (UTC)

???: I brought up this question initially. I have no opinion on the matter. I respect the copyright law and the effort to which AP went to get the photo, and I see the fair use argument as presented by Jamesday on Image_talk:TrangBang.jpg. I am not as concerned as マイケル ₪ about the violation of Wikipedia's terms (namely the text on the checkbox) because there are a great many fair use images on Wikipedia, for which none has received permission, but I am not entirely clear that Jamesday's argument falls squarely in the "fair use permitted" court, perhaps because I'm not a copyright lawyer (or any other kind, for that matter). If AP asked us (insisting, no doubt, in a letter from their lawyer) to remove the photo, I'm certain we would comply rather than fight it in court, but that situation has not arisen. (Then again, how many other AP photos do we have? - perhaps we should get a subscription to their wire photos, but then what would that do to our photo license terms?) -- ke4roh 21:40, Aug 7, 2004 (UTC)

Who are we to decide for the entire wikipedia community what is legal? We aren't lawyers. If anyone is a real copyright laywer, please step forward with your expertise. What happens when AP sues us for copyright infringment? It won't matter if we remove the image, they could still pile of tons on court fees. I don't think it is our decision to make on what the wikimedia foundation can pay for in legal fees. I think this is a serious issue that should be brought up the whole wikipedia community, especially the board of trustees. — マイケル ₪ 21:56, Aug 7, 2004 (UTC)

To me, this is simple. We're breaking copyright law in the U.S. and likely other countries, and there's no way anyone can deny it. The only choice is to a) hope AP gives us permission to use the image (unlikely) b) pay for it (with what funds?) or c) delete it. Photographs do not fall under "fair use" -- only texts or audioclips do, and even then, only excerpts, and under certain circumstances. Corporate logos do, when used in a relevant article, but this is not a relevant article. But also, the photo in question is the result of a tactical operation, when the article is about strategic operations. I appreciate the effort of whomever to try to present the horrors of war, but if there was an article labeled "Tactical bombing" or "Incendiary bombing," perhaps that would be more appropriate. -Joseph 22:04, 2004 Aug 7 (UTC)

Since the use is fair, there is no copyright infringement. All copyrightable works qualify for fair use and there is no prohibition on using all of a work (or a reduced size and resolution version such as the one at hand here) if that is what is required for the purpose. Jamesday 03:07, 8 Aug 2004 (UTC)

The only parties potentially liable are the uploader and those who place the image in an article (because their use in each article must be a fair use). The Wikipedia itself is protected by both the Communications Decency Act and the OCILLA. The issue has already been considered many times by the community here - en accepts fair use and urges replacement with better images as they become available. This is an image case where I'd be very inclined to recommend to the board that we do defend the right to make fair use of a work. You might also want to review the recent mailing list discussion when the British National Portrait Gallery sent a notice inquiring about the status of two images of works in its collection to see how the community might react to bogus claims of infringement. You also appear to under-estimate that and the quality of the free legal advice we'd have available to us in such a case. Jamesday 03:07, 8 Aug 2004 (UTC)

Keep. If someone would bother reading the Strategic Bombing article, they would discover that the picture is in reference to the events that kept the United States from conducting a strategic bombing campaign. As for Fair Use, the picture itself is one of the images most indelibly marked on the Western Consciousness from Vietnam. The author does not seem to object to the image's use. The picture is used in numerious other places. So, the image is historically significant and it is used in a manner that appreciates that. It also is used elsewhere, and in an image quality that does not cause any lose to the photographer. So it is clearly fair use. Therefore, I believe that N327KF's objection has less to do with the image or its' copywrite status, and more to do with some desire to whitewash the United States' involvement in Vietnam. Stargoat 23:21, 7 Aug 2004 (UTC)

Yes, clearly you are skilled at figuring out what I am thinking! </sarcasm> That aside, you just dodged the copyright issue, what you believe I might or might not believe is irrelevant to the issue as it corresponds to Wikipedia. I just said that it might be better placed in another article. Napalm is not used in strategic operations, it is used in tactical operations. Therefore, I believe it's placement in the article is incorrect. If you do want to keep it, throw it in a new article specifically related to such operations–and it's clearly used in other articles. So my objections are just a) copyright issues b) placement within this particular article. -Joseph 23:37, 2004 Aug 7 (UTC)

Napalm is simply a weapon. The nature of the operation determines whether it's use is strategic or not. Generally wasn't used for strategic targets in Vietnam - may be now, against biological weapons targets. Jamesday 03:07, 8 Aug 2004 (UTC)

Keep, and delete the userpage of the copyright paranoid person who listed this. -S V 02:00, 8 Aug 2004 (UTC)

Beg pardon? The guy who listed this is trying to protect wikipedia. Please, let's show more civility than this. -- orthogonal 13:40, 9 Aug 2004 (UTC)

I disagree with this simplistic and insulting-to-our-intelligence characterisation. "protection" and "defense" are flagwords for "censorship" and "pov attack" - they user is most likely advocating the deletion of the image for political reasons, and hence POV reasons. -S V 03:46, 24 Aug 2004 (UTC)

Keep. The reasons given for deletion aren't valid - policy here does not prohibit the uploading of copyrighted works and the Wikipedia itself isn't liable for any infringement in the event that an uploader gets it wrong. If someone has a better image to illustrate the political considerations behind US bombing choices in Vietnam, of course, that's certainly welcome. Will be really hard to do better than this one, though, because it had considerable impact. Will also be really hard to replace it as an illustration of the famous work of the photographer, another place where it is used and its use is clearly fair. Jamesday 03:07, 8 Aug 2004 (UTC)

"policy here does not prohibit the uploading of copyrighted works?!" What have you been smoking? Have you not read any of the messages the wikipedia puts up when you edit an article or upload an image? This is the message I am getting from the wikipedia right now when I edit this page "By submitting your work you promise you wrote it yourself, or copied it from public domain resources — this does not include most web pages. DO NOT SUBMIT COPYRIGHTED WORK WITHOUT PERMISSION!" This is the message I get when I try and upload a file "I affirm that the copyright holder of this file agrees to license it under the terms of the Wikipedia copyright." I'd say that contradicts your statement that policy doesn't prohibit uploading copyrighted works. Either that, or we have a policy that we don't follow up on with our statements... In either case, something needs to change here. — マイケル ₪ 21:10, Aug 8, 2004 (UTC)

"I affirm that the copyright holder of this file agrees to license it under the terms of the Wikipedia copyright". Wikipedia copyright links to Wikipedia:Copyrights which specifically includes fair use uploads. Jamesday 11:03, 10 Aug 2004 (UTC)

I just removed this image from Wikipedia:Copyright Problems after it had been considered there for a month. Jamesday 03:56, 8 Aug 2004 (UTC)

(This should have gone to Wikipedia:IfD, but what the hey.) Keep, emphatically keep. Even the most cursory web search turns up a large number of webpages that are using the exact same photo, and infringing on copyright in the exact same way:

This is a historic photo that opened many people's eyes to the realities of warfare in Vietnam. If other sites have the courage to show this, then why shouldn't we? Are we so petty? Would anyone have a problem with the image if it were a clothed adult in a similar state of suffering? --Ardonik 04:56, 2004 Aug 8 (UTC)

Which part of illegal do you not understand? -Joseph 05:03, 2004 Aug 8 (UTC)

Years ago, I discussed the image in high school history class. My teacher didn't get permission from the AP to display the picture, either. Come off it. --Ardonik 06:00, 2004 Aug 8 (UTC)

Classroom use gets the most liberal interpretation of fair use there is. Showing almost any image in a classroom ==> fair use. Distributing copies for a course ==> dodgy, but for a single image I've never heard of anyone pursuing it. Placing on the Internet specific to use for some class ==> Much dodgier, especially if you don't meta-tag your page "no robots", and you might lose in court if anyone ever bothered to sue you but if it was only up there temporarily for the time it was discussed in class, might be fair use. Posting in an encyclopedia, intended to endure indefinitely, well publicized, open to search engines? Implying that anyone within the bounds of GFDL can also use it? If I were the owner of the image, and I were at all inclined to litigate, I'd figure I had a pretty good case. Reluctantly delete unless we can get overt permission. Too bad. -- Jmabel 23:17, Aug 9, 2004 (UTC)

It's nice to see someone with some actual knowledge of the statute and expert opinion commenting here. All i'll add is that

Classroom use gets the most liberal interpretation of fair use there is.

is not a statement that the law has been been interpreted to give more leeway in the classroom. What JM is referring to is that there are two specific passages of the statute that say that besides what everyone gets under fair use, classroom use and specific cataegories of libraries, respectively, get additional rights. (IANAL, but doesn't it seem obvious that the statute implies that no one else has the fair use rights given explicitly to teachers or those librarians? Take heed.) --Jerzy (t) 07:57, 2004 Aug 10 (UTC)

Wrong page. Please Read The Fucking Manual. Keep --Jia ng 07:54, 8 Aug 2004 (UTC)
Delete. I don't see how this is fair use just because people say it is. Since when does fair use allow you to republish a work in its entirety? Gamaliel 08:03, 8 Aug 2004 (UTC)
deletethe image is available for sale from the owner/the image is the entire work and is not an exerpted portion of a work. it can't be fair use if 1)its not anexcerpt and 2)it's for sale the issue is not the nudity or the obscenity of war, it's a commodity that is currently owned and for sale,so how do we use it and claim we aren't thieves???
Comment. RTFM: we have ~~Wikipedia:Images for deletion~~ Wikipedia:Copyright problems. — Chameleon Main/Talk/Images 11:08, 8 Aug 2004 (UTC)'
- From Wikipedia:Images for deletion "This page is only for listing images which are duplicates or otherwise unneeded. For cases of (possible) fair use, see Wikipedia:Fair use. For copyright infringements, use Wikipedia:Copyright problems." So I'd say based on that description, it doesn't belong there. — マイケル ₪ 21:03, Aug 8, 2004 (UTC)
  - So it belongs at Wikipedia:Copyright problems. It doesn't belong here. Please move this entry. --Jiang 00:55, 9 Aug 2004 (UTC)
    - It was already listed there and had been for a month, until I removed it shortly after this VfD started. I decided to refrain from just deleting this VfD or merging it with the possible copyvios, since the purpose of the listing here seems not to be to determine whether it's fair use but to try to change policy or because of the nature of the image - the edit comments for some of the removals suggest that it was the content of the image, not the copyright status, which prompted the removal. Jamesday 11:03, 10 Aug 2004 (UTC)

according to the AP

Nick Ut took the pic, he works for La calif. AP

I just spoke with a coworker (from the photo dept./LA bureau of AP) of Nick's who stated that it is the property of AP,

that wikipedia

IF it is a member of the AP may use any AP photo, and

if not, may not use any photos legally without payment.

as he is not in a position to make a final judgement, he referred us to the New York office for a definitive answer or permission. New York API office denied permission to use in an Encyclopedia without payment -- phone call.

strong vote for deletion copyright reasons only. photo is so famous that a verbal description would serve as well IMOPedant 19:12, 8 Aug 2004 (UTC) and Pedant 20:39, 2004 Nov 10 (UTC)

No permission is required for fair use. It's not one of the rights granted to a copyright holder, so they aren't in a position to license fair use. Jamesday 11:03, 10 Aug 2004 (UTC)

Nothing to Do With Copyright

These photograph are copyrighted, and we're using them. There are thousands more like them on Wikipedia. [[Image:Kent State massacre.jpg]] [[Image:Bourke-white.jpg]] [[Image:Nguyen.jpg]] [[Image:WTCCollapse.JPG]] [[Image:Pitcher Mike Boddicker.jpg]] The argument to delete the photograph has less to do with copywrite issues, and more to do with some misplaced and jingoist desire to whitewash US involvement in Vietnam. Stargoat 21:10, 8 Aug 2004 (UTC)

I think that the involvement of the US in Vietnam was an appalling crime. My vote to delete has nothing to do with that opinion and everything to do with wikipedia rules and copyright law. Please assume good faith on the part of others. Gamaliel 07:14, 9 Aug 2004 (UTC)

Delete. This does NOT fall under free use, no matter how much Wikipedia might wish otherwise. The images Stargoat mentions should also be removed. Wikisux 00:15, 9 Aug 2004 (UTC)
Delete. I wish we could use this picture, and I want a pony too. Wishing doesn't make it so. -- orthogonal 13:40, 9 Aug 2004 (UTC)
Keep unless consensus is reached for a change of policy regarding images that claim fair use. That change, however, cannot be reached on VfD, meaning that there are no current grounds for deletion. Snowspinner 14:06, Aug 9, 2004 (UTC)

Someone needs to define fair use specifically as the term concerns photographs. I think that since the AP is charging on a per-photo basis, that indicates that it doesn't apply here, but we need a concrete definition. Only some people here think that the image falls under fair use -- so the issue is not whether or not fair use images are permissable, it's whether or not the image itself is fair use. -Joseph 14:12, 2004 Aug 9 (UTC)

For an example of fair use of a reduced size version of an image, see Kelly v. Arriba Soft Corporation or just look at Google's image search, which provides such images in every search result. I recommend reading the full decision as well. The article was written by both me and a professional copyright lawyer, Alex. Jamesday 11:03, 10 Aug 2004 (UTC)

Keep Fair use applies. Image is used for educational purposes, and for comment on an issue. Negligable $ effect on AP. Image is famous enough to be newsworthy. Entire work argument is immaterial because the photo is a very small work to begin with. Low-res jpg contributes to fair use argument. The Steve 18:11, Aug 9, 2004 (UTC)
~~Keep.~~ Fair use. Cited from 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... scholarship, or research, is not an infringement of copyright." Relevant issues: comment, teaching, scholarship, and research. Skyler 19:23, Aug 9, 2004 (UTC)
- Unfortunately, that doesn't mean this automatically falls under fair use. Much the same as university professors and teachers need the publisher's permission to distribute photocopied material in class, Wikipedia must have the copyright holder's permission to host and display this image, as well as the other copyrighted photos pointed out above. Reason? Fair use very rarely allows the reproduction of a work in its entirety, not even for eduwhich is what's relcational use. I doubt there's a court in the U.S. (evant) that would find our use of this photo to be fair use. I want to see Wikipedia improved as much as anyone, but it's important that we not run afoul of copyright law in the process. It's really not worth the risk. Wikisux 03:38, 10 Aug 2004 (UTC)
Delete. This is absolutely not fair use, but a blatant infringement. Would the people who keep claiming that it is fair use read the article instead of just linking to it? This image fails all the criteria for fair use:
1. Purpose and character: Although Wikipedia is educational, the license permits redistribution for profit
  There are several parts of this test. Here's the full set:
  
  (1) the commercial or nonprofit educational nature of the use (discussed above); (2) the "preamble purposes", i.e. criticism, comment, news reporting, teaching, scholarship, and research (this list is not restrictive, and falling within one of these purposes does not create a presumption of fair use, it is just one factor to consider) (3) the degree to which the work has been transformed, has the fair use added to the original work in some way giving it a different character, or adding the original and giving it a new meaning or message. And here's how I analysed all of those factors on the image talk page "the use is to illustrate an encyclopedia article (is tranformative), is of considerably lower resolution than the original work and serves to educate the general public about the consequences of some strategic bombing approaches for the general population of the areas subjected to them (preamble purposes: criticism, teaching). There's no attempt to make money from this use (though reusers may not have this argument available). The use is part of a project to create a globally accessible, neutral encyclopedia for the world and the work as a whole has received numerous awards and been featured for several weeks as a good example in the foyer of the United Nations building." Jamesday 11:03, 10 Aug 2004 (UTC)
2. Nature of the copied work: This is an exceptionally important and famous work, taken under trying circumstances that cannot be reproduced. Some people have suggested that that would make fair use easier to claim - in fact the opposite is true! Further, this is an image that has been widely published legally. Once again, that does not weaken its copyright, it weakens fair use, since it is perfectly possible to discuss or analyse the image without including an unlicensed copy. (Indeed, we could simply link to a legal copy of the image.)
  The nature of the work is a factual news photograph which has been previously published. Unpublished would tend to weigh against fair use. Published tends not to. As a factual image, fair use is easier than if it had been a highly creative one. Jamesday 11:03, 10 Aug 2004 (UTC)
3. Amount and substantiality: It is 100% of the image, at fairly high resolution. The "fair use" claim would be more defensible if it was cropped, or at lower resolution (but even then, the claim would be weak).
  See Kelly v. Arriba Soft Corporation for a case considering reduced size images of works. This isn't a full copy of the image, it's a highly reduced resolution one, at 300x180 pixels max. That's about 2.25x1.5 inches on this screen or about 1"x0.5" at the 300 dots per inch of a low resoluton laser printer, half that for the now-routine 600 DPI laser printers. It doesn't come remotely close to the nearer 3,000 DPI a professional print publication in a book or magazine would be likely to use. This makes it largely unsuitable for high quality reproduction in print or newspapers, the purpose for which it was taken. Jamesday 11:03, 10 Aug 2004 (UTC)
4. Effect upon work's value: The copyright holder is currently selling commercial licenses to reproduce the work. Under our license, we would be giving it away for anyone to do with as they wish.
  Fair use allows anyone to do with it as they wish, provided the use is fair. Our license is irrelevant - we aren't asserting that the image is covered by the GFDL. The fair use test, inpart, assesses the effect on the market for the work. What's the effect of the use here? I wasn't aware that the image was taken by Huynh Cong Ut or where to obtain a license if I wanted to use a high resoluton print, so I for one am now more likely to be in a position to know how to buy it. The use of the image in the articles clearly identifies the phtographer (because I made sure they did when I removed the image after a month at copyright problems a few days ago) and that presumably enhances awareness of the works of the photographer and their value. The image description page links to the AP sales site (because became aware of that site as a direct result of the use of this image in the Wikipedia and just added it). Those tend to increase the chance of sales. Jamesday 11:03, 10 Aug 2004 (UTC)
5. Further, it clearly does not even fall within the spirit of Fair Use, which would only apply if the article was about Ut's photograph, rather than simply exploiting its fame to improve our articles.
  That's part of the "purpose and character" fair use section. The image is currently used in articles covering: nudity (a direct reference to the use of nudity in this image and its acceptability in this context), Vietnam War (the impact of this image and similar images on the conduct of the war), Strategic bombing (same as Vietnam war), Kim Phuc Phan Thi (presence in this photograph), History of the United States (1964-1980) (effect of this photograph and similar photographs), Huynh Cong Ut (the photographer, discussing possibly his most famous work). Every one of those uses is one of the preamble purposes for fair use (the "preamble purposes" are criticism, comment, news reporting, teaching, scholarship, and research), since all are about this work or its impact. Jamesday 11:03, 10 Aug 2004 (UTC)
6. There is also the issue of fair dealing. Wikipedia is international in scope, and many countries' fair dealing rules are stricter than in scope than the US' fair use doctrine. I am posting from Australia, and it is definitely illegal here.
  Does Australian fair dealing prohibit use for criticism, comment, scholarship and teaching? Those are the purposes for which it is being used. Jamesday 11:03, 10 Aug 2004 (UTC)
7. Finally, the claim that Wikipedia is not vulnerable for such violations has been discussed before and it is widely held that it could in fact harm the project (e.g. see meta:Avoid Copyright Paranoia, which is just about the weakest take on it.) Maybe if Wikipedia was sued, the EFF would come to our rescue. But a shortfall of even a few thousand bucks could destroy the project.
  The CDA and OCILLA apply and it's been very well established that they cover this sort of situation. Please ask on my talk page if you'd like some examples of their use. Jamesday 11:03, 10 Aug 2004 (UTC)
8. Securiger 03:41, 10 Aug 2004 (UTC)
- Unlike some others may, I do not base my arguments on information obtained from Wikipedia articles. I came to the conclusion after reading the text of 17 U.S.C. 107 as well as subsequent Supreme Court decisions evetually reverting back to Harper & Row, Publishers, Inc., et al. v. Nation Enterprises et al. (which seems to be the most oft cited precedent for interpreting the fair use clause of the Copyright Act). I still believe that the picture falls under fair use and that the argument would hold up in court. Fair use is a defense and not clear cut. However, upon reflection, I come to the realization that any litigation, whether it would be won or lost, could destroy Wikipedia. Therefore, I am choosing to err on the side of caution and reversing my previous vote. My vote: Delete. Skyler 23:31, Aug 10, 2004 (UTC)
This picture is one of hundreds (perhaps thousands) of fair use images on Wikipedia, and they are all here to stay. And if this images is deleted, I will continue to upload it over and over again. 172 03:52, 10 Aug 2004 (UTC)

He just defined to you why it is not fair use. Why do you keep ignoring that point? And uploading it over and over again, especially when it had been deleted either by vote or by policy, who are you to override that? Good way to get yourself deleted, if it came to that. -Joseph 04:35, 2004 Aug 10 (UTC)

Are you going to sue me? 172 04:41, 10 Aug 2004 (UTC)

You know what, nevermind. It's clear that you are not capable of responding in a rational manner, when you have to resort to vigilantism and taunts. Also, removing the {{vfd}} tag from the image itself while the subject was under discussion was very inappropriate. (See the history for [[Image:TrangBang.jpg]] -Joseph 04:43, 2004 Aug 10 (UTC)

That was a rational response based on the legal issues. As the theoretically libel party, I'll reconsider my stance pending a lawsuit. Otherwise, the use of this image does not go against established practice on Wikipedia. 172 04:51, 10 Aug 2004 (UTC)

Nobody threatened to sue you, least of all, me. And you said the "Delete" voters were being paranoid? -Joseph 04:53, 2004 Aug 10 (UTC)

Great. Then it sounds like the image is staying. 172 04:54, 10 Aug 2004 (UTC)

Believe whatever you want. It's not my role, nor the role of anyone party to this discussion to enforce copyright law or terms of licensing. The whole idea is to strike a balance between providing information and keeping Wikipedia out of trouble. It's clear that you wish to skirt around the arguments as to why this image is not fair use, and exercise your whim. You proved this by not only threatening to make unilateral changes in spite of the indeterminate (as of yet) outcome of a vote or policy decision, but you went and removed the image in question from the Votes for Deletion page. -Joseph 04:59, 2004 Aug 10 (UTC)

Keep. I agree with User:172. The moon is looking rather bluish today. Still as melodramatic as ever, though, aren't you? --Robert Merkel 06:58, 10 Aug 2004 (UTC)
Delete: Wikipedia does not have the legal right to redistribute this photograph. -Sean Curtin 07:09, 10 Aug 2004 (UTC)
Del. (Even tho this is not Wikipedia:Copyright problems, it would be nice if we deleted it here and saved the effort of deleting it from there in spite of a failure to delete here.) Both use of authentic fair-use images, and non-atty. judgements about this highly technical and not yet fully litigated area of law, are harmful to WP; see Wikipedia:Copyright problems. --Jerzy (t) 07:57, 2004 Aug 10 (UTC)
Delete. The image is not fair use in any of the articles it is currently used in. User:Securiger has explained why. And I want a pony, too. -- Jao 08:42, Aug 10, 2004 (UTC)
Keep. I find Jamesday's rebuttal more compelling than Securiger initial reasons for deletion. There are reasons to be opposed to take advantage of fair use in a GFDL text, but given that we have chosen to take those reasons and deal with them, I think this is an extremely strong candidate for fair use. Pcb21| Pete 14:04, 10 Aug 2004 (UTC)
Keep. From what I see, this is fair use. Nikola 17:11, 10 Aug 2004 (UTC)
Delete - and let's have all the other copyvios listed here. We cannot risk this project in fighting legal battles that are outwith our objectives to create a copyleft encyclopedia. If this were an article about photojournalism there might be a fair use argument but not if the image is purely illustrative. Cutler 21:39, Aug 10, 2004 (UTC)
Delete, reluctantly. Timeless image, but it belongs to someone who has clear ownership. "Fair use" is a thief's call on this one. Denni ☯ 01:13, 2004 Aug 12 (UTC)

(Already voted). A strong consideration of the "delete" lobby appears to be that we might be putting ourselves at risk of a (necessarily catastrophic) legal case if use this image. I don't really understand why you guys believe this is so. In particular
1. We are online. The DMCA/OCILLA acts apply. If AP decided that our fair use defence is invalid, they would have to issue a takedown notice. If we then decided to comply with notice, there is no possibility of a suit?
2. Further, given the wide availability of low res versions of this image available online, it appears that AP, whose lifeblood is photos and text, have decided not to pursue users of its copyrighted image, hence indicating that they too believe the iconic nature of this image makes for a strong fair use claim.
Thus I think some of these delete voters are not remembering to meta:avoid copyright paranoia. Pcb21| Pete 10:21, 12 Aug 2004 (UTC)
- Comment: Jamesday and yourself both make compelling arguments with regard to the legal liability of Wikipedia and the question of whether they could be sued or not. The arguments were so compelling that I had to check on the provision. Unfortunately, you are both incorrect. Regardless of what the notice regarding copyrights before people post or the notification provision prior to suit states, 17 U.S.C. 512(c)(1)(A) requires that to relieve monetary responsibility, that the service provider (in this case, Wikipedia) "(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing" and "(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material." This entire discussion constitutes evidence of knowledge of the violation and to not remove it would make the good faith provision previously mentioned void. Sorry, no change of vote. Skyler 23:12, Aug 12, 2004 (UTC)

Keep if resolution reduced slightly. This is fair use, IMO, although I'm highly worried over the fact that we're denying the original author of royalties. However, if CNN (and just about anybody else) can get away with this (get a way as in, not being pestered by AP), so can we. Johnleemk | Talk 16:35, 15 Aug 2004 (UTC)

CNN is an AP client. That's how they get away with it. -Joseph 19:46, 2004 Aug 16 (UTC)

CNN "gets away with it" by actually paying for the use of the photo. Gamaliel 02:15, 17 Aug 2004 (UTC)

Keep --I was not aware of this listing on VfD until coming across a nascent revert war over it. There does not appear to be a clear consensus to delete this image and I don't understand why it was deleted. In any case, so long as we are using a relatively low-resolution copy and are giving appropriate credit I think this falls under fair use. older≠wiser 11:58, 21 Aug 2004 (UTC) (sig added later)
Keep. If this is to be deleted, then all fair use images must be deleted, with the exception of book cover scans and the like. I am all for removing unnecessary fair use images, but this one we cannot replicate. As Jamesday points out, we are unlikely to be liable for damages for hosting the image. A printed edition would require more caution. Also -- why was this deleted already? There is certainly not a consensus to delete. Dan Gardner 16:15, 18 Aug 2004 (UTC)

Is 'fair use' something that can be debated? We really need a lawyer's opinion on this. And IANAL. -Joseph 16:28, 2004 Aug 18 (UTC)

Keep This image is controversial in two senses (the political and the fair-use issue). This makes it (imo) a bad choice to delete on fair-use grounds since it could affect the policy of using copyrighted images. The risk is that the image may get deleted on partially political grounds. Policy-makers may then conclude (from the discussion and votes) that fair-use is not acceptable. Instead, choose an image without other controversies than copyright/fair-use to argue over. Or keep the discussion in the general policy making forums. When the policy on fair-use has become more clear the discussion over this particular image may be reopened. J grafstrom 18:01, 19 Aug 2004 (UTC)

You can't say that it's bad because you don't like the potential answer (re: whether it affects the policy on fair use.) The goal on that point is to determine whether or not it is really fair use. Do you wish to expand upon that point? -Joseph 18:17, 2004 Aug 19 (UTC)

Sure. There seem to be a number of viewpoints here: The image stays because it is relevant and legal. It goes because it violates copyright. It goes because it is irrelevant. It goes because its use is biased. Or any combination thereof. A potential result "Delete it" may be interpreted as if most people think fair-use cannot be used like this. This might not be the case though, if voters had both the fair-use question and the relevance/POV question in mind when arguing and voting. Therefor I would like the image to stay until the question of fair-use images is decided in general by discussions in other forums. In short: Dont delete it now, but let the question be open til the fair-use policy has been decided. J grafstrom 19:04, 19 Aug 2004 (UTC)

My initial concern came from the relevance to strategic bombing. If the assertation is that it is the result of an ARVN operation, how does that relate to an article on aerial theory? -Joseph

I think the image is relevant to the article (public opinion making bombing difficult, civilians suffer). Regarding fair-use question, i'd say wait for a general policy or a cease and desist from AP, whatever comes first. J grafstrom 22:12, 19 Aug 2004 (UTC)

Possibly. But I don't believe that this is strategic bombing. Where was the strategic target? Nobody has indicated that. -Joseph 23:38, 2004 Aug 19 (UTC)

I won't vote, as this is not an issue to be decided on VfD. However, as I have stated on the mailing list, I believe this image is fair use in two of the articles it appears in but still feel it should be deleted, because Wikipedia is a free encyclopedia and these are not free images. anthony (see warning) 14:04, 20 Aug 2004 (UTC)

Count

Delete: 14
Keep: 16
Abstain: 2

Revised count now at the top of the page (by name for easier verification)

This page is now preserved as an archive of the debate and, like other '/delete' pages is no longer 'live'. Subsequent comments on the issue, the deletion or on the decision-making process should be placed on the relevant 'live' pages. Please do not edit this page.