Is this image fair-use, what should be done about it?

Question

I've seen a few comments asking to change images on answers because of copyright issues. I'm wondering what the response to this should be.

This answer uses a single image from this page illustrate the answer which has been attributed to bidet.org which is a business selling bidets.

Would this normally be considered fair use?

The comment under the answer says it isn't but I don't see the reason. They say they don't have permission or a license but they are not required for fair use. If you had permission or a license, there wouldn't be any reason to invoke fair use.

If this is a copyright violation, would editing the post stop it being one?

Often the suggestion is to edit the post. Would this stop the answer from violating copyright? The image is still in a few places including the edit history, and data dumps. If there was a violation would we need to remove all copies of the content?

Answer 1

If this is a copyright violation, would editing the post stop it being one?

Yes... That's one of the reasons editing exists, to make it straightforward to correct obvious problems like this. The main post is the content that we are presenting to the public, not the edit revisions. As such, it's not an issue of "fair use," as there isn't any "use" per se.

Casual users who happen to view the Edit History will see that the non-free question has been replaced by a free alternative. Ideally, the Edit Description would say that specifically, but it's not that hard to figure out; the deleted picture has a red border around it, and the replacement picture has a green border, indicating replacement.

Copyright holders should look at the edit history of this post as evidence that we curate our content in a respectable fashion. If this isn't good enough for them, they are free to make a DMCA request to SE corporate to have the content removed from the edit history (which SE should happily oblige).

Answer 2

According to the Stanford University libraries,

What Is Fair Use?

In its most general sense, a fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner. In other words, fair use is a defense against a claim of copyright infringement. If your use qualifies as a fair use, then it would not be considered an illegal infringement.

So what is a “transformative” use? If this definition seems ambiguous or vague, be aware that millions of dollars in legal fees have been spent attempting to define what qualifies as a fair use. There are no hard-and-fast rules, only general rules and varied court decisions, because the judges and lawmakers who created the fair use exception did not want to limit its definition. Like free speech, they wanted it to have an expansive meaning that could be open to interpretation.

Therefore, according to my interpretation, using that image was indeed a copyright breach, regardless of it being referenced and linked to. Indeed, I was neither commenting, nor criticising, nor making a parody of the copied content. I was using that image without permission to enhance the content of my answer. Hence why I edited it out of the question. In addition, I have re-visited my interpretation of Fair Use.

Personally I would have been fine with someone else editing the copyrighted picture out of the post. I am in favour of free edits aimed at improving the quality of a post.