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Ballotpedia:Non-free use rationale guidelines for images

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Ballotpedia:WikiProject Images
See also: Ballotpedia:Non-free content
Some non-free-use content may be used on Ballotpedia. When this happens, a justification for use of the non-free media (called a non-free use rationale) must be included on the image description page.

There are several "image copyright templates" you can use when adding:

These templates incorporate standard language about the nature of the fair-use rationales for:

  • Using logos of political campaigns
  • Using photographic images of elected officials.

If your contemplated use of a political campaign logo or an elected official differs from the standard reasons given in those templates, you should describe your different rationale on the image's description page.

Fair use of images

Patricia Aufderheide is the director of the Center for Social Media at American University and the co-author of "Reclaiming Fair Use: How to Put Balance Back in Copyright", which was published by the University of Chicago Press in August 2011.

In an interview with the Online News Association in January 2012, Aufderheide said:

"Fair use is the right to use copyrighted material without permission or payment, under some circumstances. It is a fundamental free speech right — without it, all copyright holders would become private censors, with the permission of the government, which created copyright policy. And that would make copyright unconstitutional, for violating the First Amendment. So fair use is a critical free-speech right, but that hasn’t been well understood."[1]

Factors to consider

If you are considering uploading a copyright-protected image to Ballotpedia under a "fair-use" rationale, American University’s Center for Social Media has published a series of papers that outline "best practices" for how to reach an appropriate decision.

The recommended best practices depend on the type of use that will be made of the non-free media. The "Center for Social Media" has produced codes for these different kinds of organizations:

  • Code of Best Practices for Academic and Research Libraries
  • Code of Best Practices in Fair Use for Poetry
  • Code of Best Practices in Fair Use for OpenCourseWare
  • Code of Best Practices in Fair Use for Media Literacy Education
  • Code of Best Practices in Fair Use for Online Video
  • Documentary Filmmakers' Statement of Best Practices in Fair Use
  • Code of Best Practices in Fair Use for Scholarly Research in Communication
  • Best Practices in Fair Use of Dance-related Materials

According to the Code of Best Practices for Academic and Research Libraries:

"In weighing the balance at the heart of fair use analysis, judges generally refer to four types of considerations mentioned in Section 107 of the Copyright Act: the nature of the use, the nature of the work used, the extent of the use, and its economic effect (the so-called “four factors”)."[2]

Purpose

The intention of federal copyright law in the United States is to stimulate creativity for the enrichment of the general public.

Question to ask yourself:

  • Does my proposed use of this photo help fulfill that intention, or does it rather support a private profit agenda? (Since Ballotpedia is a digital library that functions in a non-profit educational environment, the use of images on Ballotpedia does not support a private profit agenda.)
  • Does my proposed use of this photo advance the progress of knowledge through the addition of some new aspect to the image? This question is usually interpreted to mean, "Am I using this image in a different way than it is used by the copyright owner?"

Transformative use

A factor to consider is whether the nature of the use of the image on Ballotpedia is different from the purpose of the copyright holder in providing an image.

Questions to ask yourself:

  • Will using this image support Ballotpedia's goal of creating a free, curated digital archive for students, scholars and the general reading public in a non-profit educational environment of significant organizations and people related to governments throughout the United States?
  • If so, is that purpose different from the purpose of the copyright holder in using the image?
  • Am I using this photo for some other "transformative" reason, such as to digitally preserve it?

An example of a transformative use is the digital collection of all images of elected officials in a state during a particular year in a format, such as the format of Ballotpedia, that allows these images to remain historically accurate over time, versus the intention of the original copyright owner (e.g., a state government) which is using the photos to illustrate their articles about contemporary officeholders without an intention to provide a digitally-curated collection of all images of those who have held a particular office in that state. (Generally, state government websites remove photos of officeholders once the officeholder is no longer in office, which suggests that it is not their intention to provide a digital archive of images of those officeholders for students and scholars.)

Creative significance

A factor to consider is whether the use of the photo elsewhere diminishes the significance of its nature as a creative work.

  • For example, if the photo is a photo of an elected official that appears on an official municipal or state government website, it is reasonable to conclude that the significance of the nature of that photo as a creative work has been diminished by that use.

Preservation of at-risk items

Does your use of the image on Ballotpedia tend to preserve an image that would otherwise be at risk? This would be the case if the photograph is a photograph of a current elected state official and the copyright holder is the state government. If the state government will remove the photograph from the state government's official websites once the officeholder is no longer in office, than your use of the photo on Ballotpedia will tend to preserve an image that is otherwise at risk.

According to the Code of Best Practices for Academic and Research Libraries:

"The primary purpose of preservation is indubitably beneficial and arguably strongly transformative: ensuring access to aspects of our cultural heritage for future generations, well past the limited term of copyright protection. Furthermore, responsible preservation is a necessary precursor for future scholarly use in a variety of transformative contexts, including criticism, commentary, and teaching. A broader, four-factor analysis further supports digital preservation: Its purpose is non commercial and educational, the amount of the work used is appropriate to the purpose (preserving only parts of works would be unsatisfactory), the nature of the works will in many cases be scholarly nonfiction (although this may be less likely in the case of VHS tapes), and preservation in the absence of a suitable replacement copy has no negative effect on the potential market of the preserved work (indeed, preserving the work for posterity should have a positive effect, if any)."[2]

Market for the original photograph

Does your use of the photo diminish the market value of the photograph that the copyright holder might otherwise realize?

Photographs of elected officials on official municipal and state government websites typically do not generate a market value for their copyright owner (the municipal or state government). Using such a photograph on Ballotpedia in Ballotpedia's non-profit educational environment therefore could ordinarily not be construed to diminish the copyright owner's market value.

External links

References