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Recently we had a question that uses a gif to describe what happens when a caster acts.

The gif was made from an excerpt from Dragonball, and I don't see how it is fair use. In fact, none of the fair use factors but one is in the favor of the commenter:

  1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes

This is not good: We don't satisfy teaching if we don't discuss the subject matter of the picture but merely use it illustratively! In fact, the case of Masi v Mythical Entertainment was a very* strong one, where the lawyer pursuing the case dropped the ball for non-prosecution. But you can take an actual lawyer's words on that case:

[describes things that could be discussed about the photograph.] They are talking about the subject of the photograph [by a 3rd party], not a photo of the prison by the prison. [4:26]

  1. The nature of the copyrighted wor

Anime is a work of fiction and art. Both are not facts, which is against the user.

  1. The amount and substantiality of the portion used in relation to the copyrighted work as a whole

This is a factor that might swing in favor of the user: it s a small portion, but this is also a scene that was used as the heart of about 3 episodes, which cuts against the user... so neutral?

  1. The effect of the use upon the potential market for, or value of, the copyrighted work

Luckily, it is not usurping the market for Dragonball, but making people interested in the whole content is not positive for the user, so... not so good either. However, this cuts for the user, so a win here.

As a result, there is possibly fair use here, even if possibly narrowly.

I raised that problem with a flag, which was deemed helpful, but then nothing happened. So please Stack:

Should we formally disallow merely illustrative pictures for they can put us in very hot copyright waters or have some requirements as to their usage?

For example, should there be some kind of Guideline FAQ that elaborates on when or what we'd like to see accompanying an illustrative picture? Do we want to offer a bright line? Or offer

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    \$\begingroup\$ I will say on the matter of the flag marked helpful: it did bring moderators' eyes to it, we discussed it among ourselves, and thought it didn't obviously/unquestionably need a moderator to edit it out. But the bringing it to our attention for that conversation was (IMO) helpful, so the flag was marked "helpful." All that said, I'm happy to see it discussed by the larger userbase, so thanks for raising it here. \$\endgroup\$
    – nitsua60 Mod
    Commented Nov 11, 2021 at 11:42

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Going to echo doppelgreener here:

It's not necessary for us to police copyright law to this degree. In this instance you're even policing Blizzard's copyright harder than Blizzard itself does.

Clips of TV shows, movies, and so on are extremely common on the internet. Seeing as it is effectively free advertising, copyright holders seem to be pretty okay with this! No one is going to argue that Stack Exchange is improperly abusing copyrighted material to create competition for Bird Studio/Shueisha (owner, per Google) or for Funimation (licensed distributor in much of the world, per Wikipedia) or whatever.

Also, not for nothing, if someone did have a problem with this, their response would be a cease and desist letter, at which point we would... remove the image and the reference to it, exactly as you’re proposing. The potential harm here is extremely minimal. That does mean the value of the image here is also pretty minimal, but I for one think it is best to capture the querent’s own words and perceptions, which this image does.

It isn’t a big deal here, but my inclination is to leave it.

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  • \$\begingroup\$ I ask for a general stance on all pictures. Recently, a merely illustrative picture answer was removed. \$\endgroup\$
    – Trish
    Commented Nov 11, 2021 at 13:29
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    \$\begingroup\$ @Trish There is never going to be perfect consistency in the judgment calls made by an entire community of users. Even the diamond moderators are just implementing whatever they think is best, and especially around copyright, there’s a lot of misunderstanding (not to mention a fair amount of outright deception out there, as copyright holders pretend they have more rights than they actually do). It’s a gut call, and not everyone is going to make it completely the same way every time, and it can’t be anything other than a gut call, because fair use is legally subjective. \$\endgroup\$
    – KRyan
    Commented Nov 11, 2021 at 14:17
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    \$\begingroup\$ @Trish So I don’t know if I would agree with the removal of this “merely illustrative picture answer,” since it’s a case-by-case thing and I don’t know which case you’re referring to. Even if I disagree, that doesn’t mean whoever did so was “wrong”—and even if they weren’t, it doesn’t mean they were “right,” either. You asked about this case. I addressed this case. Besides, we already have several answers musing on the ramifications to this site of copyright in general, so if that’s what you want a discussion of then it’s a duplicate. \$\endgroup\$
    – KRyan
    Commented Nov 11, 2021 at 14:19
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    \$\begingroup\$ The case was actually brought to META and there we found overwhelming evidence against an answer being any fair use and against explicit license of the picture's author: How are we defining Fair Use Images with respect to the function of the Stack? \$\endgroup\$
    – Trish
    Commented Nov 11, 2021 at 18:34
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    \$\begingroup\$ @Trish I’m sorry, I’m not following. What do you mean “overwhelming evidence against an answer being any fair use”? I wrote the answer to that Meta discussion and I can assure you, it definitely supports the possibility that an answer can be fair use. My read of that situation is very much that it shouldn’t have been deleted (at least for the stated reason; the poster notes that they felt it should be deleted for other reasons anyway, and on that I have no comment). \$\endgroup\$
    – KRyan
    Commented Nov 11, 2021 at 18:37
  • \$\begingroup\$ I am sorry, I phrased that unclearly: The deleted answer in the particular case was just the picture without any commentary or transformative work was explicitly violating the terms of usage the picture had attached to them: (c) Wizards of the Coast 2008 - no permissions of use given to anyone. - this means that the poster was theoretically explicitly on notice that they had no license and in that case, there was no discussion of the picture itself which would put the answer into the commentary and critique exception. It was just reproducing the work for itself, which is market usurpation... \$\endgroup\$
    – Trish
    Commented Nov 11, 2021 at 18:43
  • \$\begingroup\$ ...it is a piece of art, reproduced in full... In that particular case, the illustrative use would most likely go against the use in every of the 4 fair use cases. \$\endgroup\$
    – Trish
    Commented Nov 11, 2021 at 18:45
  • \$\begingroup\$ In the case of the GIF in the question posted by me, it is less clear and, as you say, there might be an implicit non-prosecution thing because as a meme it keeps Dragonball a relevant thing. But somewhere between the illustrative GIF and the full-copy of a picture to make up a whole answer, there must be a line where we say "This far we go, and no further." \$\endgroup\$
    – Trish
    Commented Nov 11, 2021 at 18:47
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    \$\begingroup\$ @Trish Your understanding of fair use does not match—even remotely—my own, nor does it match what is posted in the answer you link. I have never seen—anywhere—a requirement that fair use can only be applied in “transformative” cases, and I quite simply do not think that is true. And of course we are discussing use of copyrighted material without license—that is what fair use is. If we had a license, we wouldn’t need fair use. And finally, no, there does not need to be a line. That’s not how the site works; we have almost no such lines. We all just do our best and that’s it. \$\endgroup\$
    – KRyan
    Commented Nov 11, 2021 at 18:59
  • \$\begingroup\$ I agree, transformative does not always cut in either way, but commentary and critique are automatic fair-use checkmarks in the first test: if you comment or critique on the work reproduced then you have more likely fair use. \$\endgroup\$
    – Trish
    Commented Nov 11, 2021 at 19:03
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    \$\begingroup\$ @Trish Commentary or critique of the work is one kind of fair use. Educational usage is another; fair use doesn’t require that the educational use be education about the work, it can also be (as in this case) using the work illustratively as part of an educational purpose. \$\endgroup\$
    – KRyan
    Commented Nov 11, 2021 at 19:08
  • \$\begingroup\$ I agree, educational use however should follow educational guidelines - for example one should tell why this work was chosen to illustrate a point. For example "[Picture] This is Frederico di Paolo as depicted in [book]. You see his pre-embrace portrait in the background, and the post embrace figure in front. You see he was heavily deformed through the process" - this embeds the illustrative manner of that picture much better than "Nosferatu: [picture]" \$\endgroup\$
    – Trish
    Commented Nov 11, 2021 at 19:13
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    \$\begingroup\$ @Trish I mean, in a Q&A format, “what does X look like?” “[picture of X]” is extremely clear and the educational value of the answer really doesn’t change if you say “it looked like this: [picture of X].” Also, I don’t think the law really cares how good the use is at educating people. \$\endgroup\$
    – KRyan
    Commented Nov 11, 2021 at 19:15
  • \$\begingroup\$ Maybe, but a better-embedded picture makes it way easier to prove fair use. \$\endgroup\$
    – Trish
    Commented Nov 11, 2021 at 19:18
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No

"Should we formally disallow merely illustrative pictures for they can put us in very hot copyright waters or have some requirements as to their usage?"

No, we do not need yet another policy; not to apply going forward, not to have people chasing back through the archives looking for violations.

No, we do not need a "bright line." If a bright line were possible, it would already be codified in law. Instead, what we have are guidelines and tests and, when push really does come to shove, take-down notices and maybe lawsuits, precisely because Fair Use is an area of somewhat fuzzy rules. I have literally zero faith that our community of most non-lawyers is qualified to come up with correct, or even meaningful bright line policies.

Further, I am extremely skeptical of the claim that our current practices can or will get us into "very hot copyright waters." The normal course of a real legal issue would be something like a copyright holder going through whatever SE's notice and takedown procedure is, and SE responding either by taking the image down (likely) or fighting it in court (unlikely.)

This, itself, barely even counts as "waters" much less "very hot waters."

But more, relatively recent past discussions indicate that this has very possibly never happened even once on RPG.SE (as opposed to SE-at-large.)

That's because this stack is not a hotbed of illicit copyright violations. It just isn't. I'm fine with removing egregious violations as they occur; I don't flag often, but I think the first flag I ever raised was a link to copies of every Dragon Magazine in existence. That was a no-brainer, because it wasn't even a Fair Use issue, it was just a link to blatant piracy. These issues that we're proposing to bright-line out of existence aren't.

When and if we become a venue like YouTube, where copyright violations accumulate on a daily (perhaps even hourly, or minutely) basis perhaps we can revisit the issue.

Until then, we're being asked if a bunch of unqualified hobbyists should try to create bright-line rules where scholarly experts have failed in the past, in order to avoid problems that we currently do not have in any great magnitude (possibly not in any magnitude at all), and which problems could easily be handled by SE's (not RPG.SE's) existing policies and lawyers.

To which I answer: No.

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    \$\begingroup\$ Related meta post (for future spelunkers): what's our stance on piracy?. And 'hi,' spelunkers from the future! \$\endgroup\$
    – nitsua60 Mod
    Commented Nov 12, 2021 at 1:10
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Is it your copyright?

If so, you can issue a DMCA take-down request to Stack Exchange. If it isn't, it's none of your business.

Are you Stack Exchange?

If so, you are obliged to respond to DMCA requests but you have no obligation to otherwise police your site and can get yourself into hot water if you do. If it isn't, it's none of your business.

Copyright is a matter exclusively between the owner, the infringer, and the platform. We aren't any of those people, so we should leave it alone.

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