First off, I want to establish my credentials. I am, in general, opposed to the existence of fair use images on Wikipedia. I think allowing them runs counter to the principle of Wikipedia being a free content encyclopedia, and I have even made a userbox expressing this opinion. A glance at my deletion log shows that I have deleted hundreds of images without proper licensing and/or sourcing over the last few weeks, almost all of which could only have been used under a fair-use claim if they had been properly tagged. Therefore, please do not mistake me for someone who feels that any copyrighted image can be used anywhere so long as a "fair use" tag is slapped on it.
Nevertheless, since Wikipedia policy does allow fair-use images, I would like to explain why I believe that the use of Image:TheCarlsonTwins.jpg at Carlson Twins fell well within Wikipedia's guidelines on the use of fair-use images. In particular, I want to show that Kelly Martin's assertion "the article was created to give reason to upload the image to Wikipedia" and BradPatrick's assertion "this is an image looking for an excuse to be in WP, not an article about otherwise notables who need an illustration" are simply untrue. (I do not deny that there are many images in other articles for which this is true; I do deny that it is true of the use of the specific image Image:TheCarlsonTwins.jpg.)
- 21:00, 29 January 2005: Taufkirchen creates the article. It contains no images.
- 19:05, 2 October 2005: 188.8.131.52 mentions the existence of a photograph of the Carlson Twins that "depicts them in a loving posture while their well-endowed penises touch each other". (In the next edit, Daydream believer2 removes the words "well-endowed" from this sentence.)
- 05:00, 9 October 2005: Fem adds an image to the article for the first time, more than eight months after the article's creation. The image is Image:Carlsontwins.PNG, which is a non-nude picture of them standing (if I recall correctly) on a boat. This image is removed on 03:53, 31 December 2005 for not having a copyright tag and deleted on 04:52, 6 January 2006. A fair-use claim for this image could be considered tenuous, because it served only to show what the twins look like, and could be replaced by a free image someone might make of them at a public appearance.
- 21:31, 27 March 2006: Calicore adds Image:Carlsontwins.jpg, which is a nude image of them, but not the one referred to in the text. (It is available off-wiki at http://www.queerclickgallery.com/albums/bulk_uploads/carlson_twins.jpg; they are not in a "loving embrace" and their penises are nowhere near each other.) Again, a fair-use claim for this image could be considered tenuous, because it served only to show what the twins look like, and could be replaced by a free image someone might make of them at a public appearance.
- 23:37, 11 April 2006: Nilaomu edits the sentence about the "loving embrace" image to say "their penises almost touch each other" (an accurate statement, showing to my mind that Nilaomu has seen the image in question even though that's not the image being used in the article).
- 18:30, 25 April 2006: 184.108.40.206 removes both the image and all text referring to homoerotic content (including the description of the "loving embrace" photo) from the article, and makes a legal threat on the article page. This action is reverted in about half an hour by Sweetiepetie. Over the next few days, the image is removed and restored a few times, until on 21:08, 27 April 2006 BradPatrick deleted this image with the summary "Not acceptable fair use argument. Deleted." Fair enough, as I said above, the fair-use claim for this image was perhaps somewhat tenuous as it served only to show what they looked like.
- 23:23, 21 May 2006: Qrc2006 adds Image:Carlson-nude3.jpg to the article. This is the image discussed in the text, with the twins in a "loving embrace" and their penises almost touching. A cropped version of this image can be found off-wiki at http://gib.supereva.com/gallery/Modelli/The_Carlson_Twins/Carlson_Twins_3.jpg. However, it is improperly tagged as a magazine cover, and is poor quality as it appears to be a photo of a photo, and is eventually deleted.
- 09:47, 23 May 2006: User:Sweetiepetie adds a better version of the same picture, called Image:TheCarlsonTwins.jpg. This image is given the following fair use rationale: "Fair use rationale: Low resolution image of particularly significant photograph that's explicitly discussed in the article. Photographed by Bruce Weber and already available on many websites, found at http://www.justusboys.com/members/viewimage.php?image=TheCarlsonTwins047.jpg&u=108936&album=19355".
- 08:43, 4 June 2006: User:Taufkirchen, the creator of the article, removes the nude image and an external link to a gallery where more nude images can be found, and leaves a legal threat on the page signed "Kyle and Lane". This action is reverted, but the image is again removed and then deleted by Bookofjude, citing OTRS #2006060410007768. Thus, it seems, the twins or their lawyer really did contact Wikimedia and request that the image be removed.
The question has also been raised here, and not really satisfactorily answered, of whether the Twins even own the copyright to the image and therefore have the moral and/or legal right to demand its removal. Normally a photograph is the intellectual property of the photographer, in this case, Bruce Weber, so if anyone is going to demand the removal of the picture, it should be him. However, I suppose it is possible that he released or sold the rights to the images to the Twins.
Now, I don't want to see Wikimedia get sued, even if they are likely to win, but the fact remains that of all the fair-use images that had been used on this page, Image:TheCarlsonTwins.jpg had the strongest fair-use claim, because it was the image explicitly discussed in the text. The text was not edited in order to make an excuse to use this picture, because discussion of the image had been around for seven months before the image itself was added.
For these reasons, I want it to be made clear that Image:TheCarlsonTwins.jpg was deleted not because it was in violation of Wikipedia's fair use policy, or (as far as I can tell, but IANAL) U.S. law concerning fair use, but purely because the Carlson Twins themselves and/or their lawyer(s) or agent(s) apparently requested that the image be deleted. I consider it highly significant that no one objected to the one clothed image of the twins that was used for a while. No legal threats were made regarding the use of that picture. This suggests to me that the Twins don't actually object to the use of their images (what kind of models would they be if they did?), they object to the use of their nude images only, which smacks of censorship in violation of Wikipedia policy. This double standard (clothed images are okay, nude ones are not) may be acceptable to the Twins, but it should not be acceptable to Wikipedia. The Twins have made it clear they don't want a nude image used in their article; therefore I submit that no picture at all (unless a free picture can be made) should be used here. It should not be acceptable for someone in the future to add another clothed "fair-use" picture to the article, since no other picture will have as strong a fair-use claim as Image:TheCarlsonTwins.jpg had.