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Answers
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I can't find anything in the help pages specifically about this, but (not a lawyer) I would personally look for an image that was covered by an appropriate Creative Commons licence, or explicit permission granted by owner of photo, or too old to be copyright (both in the US and in my home country). I am personally unsure that fair use would apply here. Interested in others' opinions.
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I'm not certain there even is such a thing as "fair use" for copyrighted images, but the closest I get to a lawyer is my second cousin on a different continent whom I haven't seen in twenty years.
If the image really is public domain, then it should be fine to use wherever, including the FS Tree — but I agree with Mandy that an explicit statement of such permission (such as a Creative Commons license) would be good. There are too many people making unwarranted assumptions about images online.
Speaking of people making assumptions: be prepared for people to copy any portrait image from FS to all of the other genealogy sites, without any consultation or request for permission. (Yes, I speak from experience.)
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in theory - if its public domain - its public domain - and you are free to upload.
fair use however is very much a gray area. you might be able to upload it with no apparent issue
and then months or years later have someone report you as in violation of copyright and FS would probably take it down.
but even in the case of public domain - there can be disagreement on that status - and it is clearly possible that what you feel is public domain - FamilySearch may still find reason (especially if a person reports abuse) FS could still find it in their right to take it down.
there surely can be issues where FS disagrees with what you feel is the status - and there could even be issues where they agree with you - but for other reasons - they stil feel the need to take it down.
Here is a collection of information about copyright and fair use at this link
https://yanceyfamilygenealogy.org/copyright.htmalso keep in mind - for a photo - it is not the family who owns copyright (if they did not take the photo) - it is the photographer. (ownership does not imply copyright by the owner)
but truth is for most family photos - the system will probably accept it just fine - and if no one reports it as in violation of copyright it will probably stand without issue. and in most cases family or photographer dont report abuse very often on a family photo.
It is when someone does report abuse that FS may then respond and take action - - and in that case FS has to decide who's side to take - and you cant just assume - they will always take your side . . . even if you think you have a good legal case of public domain or fair use.
My experience has been that FS tends to agree with the person who reports abuse (if they are the creator of the item) even if their stance would not hold up in copyright court.
But my experience also has also been - having uploaded many thousands of items - it is very rare that someone reports abuse on a family photo.1 -
The image is found in the wiki commons of Elvis. The article states it a public domain and even layouts the public domain citation. Can it still be used?
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If it's in Wikimedia Commons it will be absolutely fine since their upload rules are very tight. (If it's only on Wikipedia, however, it would likely be fair use there, which would not allow you to reuse it.)
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based on personal eperience - FamilySearch is extremley strict and picky about items uploaded for famous people. (the standards are much higher and enforced more strictly) and the profiles for famous people are being monitored on a regular basis - so that you can get a restriction even after long periods after initially uploading something. They will often initially deny it - and then you will have to state your source and case - and if you refer to Wikipedia/wikimedia it shoudl in most cases get you thru
but even it they agree it is public domain - there still may be other reasons they reject itWhen an item is initially rejected (by the system and not by a human)
you will get an email - and just reply to that email and make your best case - and hopefully they will agree and reverse the restriction.and truth is - - its not so much whether an image can or cannot be used as a profile image
its merely does your upload to memories comply or not comply with what FamilySearch admins want to enforce (especially for famous people)
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Unfortunately the email I got even when cited the proof from wiki commons.
The response was, just because it's public domain doesn't mean it's approved or accepted to upload.
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What did they say was wrong with it? Sounds like it's not a copyright issue. @Dennis J Yancey warned us the problem might be something else. In the end I guess Memories are supposed to be just that, family memories.
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