Thread:Sakaros/@comment-17114085-20191027112010/@comment-104549-20191027164406

BLUF: If you're trying to argue that Warhammer 40k Fanon's enforcement of its Image Policy is more stringent than ours, you appear to be correct. That doesn't make them right or wrong on the issue, and SWFanon isn't getting involved.

Preliminarily, it's important to establish that I have no desire to get involved in an inter-Wiki conflict, either on behalf of Star Wars Fanon or in my personal capacity; since I'm not a Warhammer 40k Fanon member, convincing them is your job, not mine. And while I am a lawyer and I have some familiarity with copyright law, intellectual property isn't my area of practice, and I wouldn't hand out legal advice over the internet even if it was.

That said, having skimmed the thread you linked, I think there are valid points on both sides. Remos's message here that "[i]f you don't have written permission of the author of the artwork you are about to use, it is just - simply - stealing, not fair use" is not accurate; as you pointed out in the debate thread, Fair Use circumvents the need for permission. In fact, there's on that very point, which helped establish some of the parameters of parody.

On the other hand, the fact that a user asserts Fair Use does not mean that the use is Fair Use. As you rightly observe, SWFanon allows users to claim Fair Use and upload images as long as they are properly sourced and give due acknowledgment to the artist(s), with the understanding that we won't accept an assertion of Fair Use over the explicit statement of the artist that a work isn't to be used elsewhere, and we will take down works in accordance with the DMCA. However, this means each user is taking on himself the potential liability for an incorrect assertion of Fair Use.

As to whether the asserted uses actually are Fair Use...by longstanding precedent, SWFanon admins don't comment on whether Fair Use is appropriate unless it blatantly isn't (e.g. the artist explicitly refused permission, the work is actually Public Domain and doesn't need Fair Use, etc.). But though I've added many images to my articles, I have never once used Fair Use to do so; all of my images are either my creations or works I've commissioned and paid for. Make of that what you will.

If you haven't already, I encourage you to review the four-factor test used in analyzing a claim of Fair Use; whether it supports or opposes your arguments, it'll help shape your debate with relevant information.