Image use in the classroom

Dr. Tonya Howe, Associate Professor of English
thowe@marymount.edu

May 15, 2013

Links to browse and videos to watch before our session

Images: How to find them and use them

Key terms and concepts

Copyright

Duration of Copyright

Public Domain

Fair Use

Transformative Fair Use

Creative Commons and GPL

So, the upshot of it all?

Links to browse and videos to watch before our session

“Fair Use and Public Domain” at FindLaw.com

http://smallbusiness.findlaw.com/intellectual-property/fair-use-and-public-domain.html?DCMP=GOO-BUS_Copyright-FairUse&HBX_PK=what+is+educational+fair+use

Watch second! → “A Fair(y) Use Tale”

http://www.youtube.com/watch?v=CJn_jC4FNDo

Watch first! → Copyright Basics (Video by CCC)

http://www.youtube.com/watch?v=Uiq42O6rhW4

Copyright Basics (US Copyright Office)

http://www.copyright.gov/circs/circ01.pdf

Digital Copyright Slider

http://librarycopyright.net/resources/digitalslider/

Tree View Chart on Copyright

http://chart.copyrightdata.com/#top

Intellectual Property and the Arts (College Art Association)

http://www.collegeart.org/ip/

Visual Resources Association: Statement on the Fair Use of Images for Teaching, Research, and Study (full document)

http://www.vraweb.org/organization/pdf/VRAFairUseGuidelinesFinal.pdf

Creative Commons and GPL

Watch third! → http://www.youtube.com/watch?v=NhimdwoWM5A (Video on CC licensing)

http://creativecommons.org/about

Images: How to find them and use them (Marymount LibGuide)

http://marymount.libguides.com/images

Key terms and concepts

all except “copyright” from The Copyright Clearance Center (CCC)

http://www.copyright.com/content/cc3/en/toolbar/education/resources/copyright_basics.html

Copyright

from Copyright Basics (US Copyright Office circular)

Copyright is a form of protection provided by the laws of the United States (title 17, U.S.Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works. Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:

It is illegal for anyone to violate any of the rights provided by the copyright law to the owner of copyright. These rights, however, are not unlimited in scope. Sections 107 through 122 of the 1976 Copyright Act establish limitations on these rights. In some cases, these limitations are specified exemptions from copyright liability. One major limitation is the doctrine of “fair use,” which is given a statutory basis in section 107 of the 1976 Copyright Act.

Duration of Copyright

The term of copyright protection varies with the date of creation. A work created on or after January 1, 1978, is automatically protected from the moment of its creation and is ordinarily given a term enduring for the author's life plus an additional 70 years after the author's death.

Public Domain

The legal concept of the public domain as it applies to copyright law should not be confused with the fact that a work may be publicly available, such as information found in books or periodicals, or on the Internet. The public domain comprises all those works that are either no longer protected by copyright or never were.

Essentially, all works first published in the United States prior to 1923 are considered to be in the public domain in the United States, as are works published between 1923 and 1963 on which copyright registrations were not renewed. Materials created since 1989, other than those created by the U.S. federal government, are presumptively protected by copyright.

Therefore, the likelihood that materials of greatest interest are in the public domain is low. In addition, you must also consider other forms of legal protection, such as trademark or patent protection, before reusing third-party content.

Public domain materials generally fall into one of four categories:

  1. Generic information, such as facts, numbers and ideas.
  2. Works whose copyrights have lapsed due to the passage of time or the failure of the copyright holder to renew a registration (a requirement that applies to works created before 1978).
  3. Works created prior to March 1989 that failed to include a proper notice of copyright.
  4. Works created by the U.S. federal government.

Fair Use

Fair use is primarily designed to allow the use of the copyright protected work for commentary, parody, news reporting, research and education. However, fair use is not an exception to copyright compliance so much as it is a "legal defense." That is, if you use a copyright protected work and the copyright owner claims copyright infringement, you may be able to assert a defense of fair use, which you would then have to prove.

Section 107 of the United States Copyright Act lists four factors to help judges determine, and therefore to help you predict, when content usage may be considered "fair use."

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

If a particular usage is intended to help you or your organization to derive financial or other business-related benefits from the copyright material, then that is probably not fair use.

  1. The nature of the copyrighted work.

Use of a purely factual work is more likely to be considered fair use than use of someone's creative work.

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

There are no set page counts or percentages that define the boundaries of fair use. Courts exercise common-sense judgment about whether what is being used is too much of, or so important to, the original overall work as to be beyond the scope of fair use.

  1. The effect of the use on the potential market for or value of the copyright protected work.

This factor looks at whether the nature of the use competes with or diminishes the potential market for the form of use that the copyright holder is already employing, or can reasonably be expected soon to employ, in order to make money for itself through licensing.

At one extreme, simple reproduction of a work (i.e., photocopying) is commonly licensed by copyright holders, and therefore photocopying in a business environment is not likely to be considered fair use.

At the other extreme, true parody is more likely to be considered fair use because it is unlikely that the original copyright holder would create a parody of his or her own work.

Transformative Fair Use

In the definition of the purpose and character of the use under US law, the issue of “transformational” or “transformative” use is crucial. A 1994 Supreme Court case stipulated the first factor as the most important in determining fair use. As the Copyright and Fair Use Overview at Stanford University puts it, “At issue is whether the material has been used to help create something new or merely copied verbatim into another work.” This was the root of the recent HathiTrust decision, in which a federal court ruled that the digitization of books (as in Google Books and the Hathi Digital Library) constitutes fair use under the transformative clause.

Creative Commons and GPL

Just as several professional associations have been developing guidelines to clarify fair use (like the College Art Association), others have been creating new licenses to encourage collaboration and re-use of images, sounds, and other products. Creative Commons is one such licensing option, originating in the GNU GPL, which was developed specifically to address needs for collaboration and building in software development.  According to their website, “Creative Commons is a nonprofit organization that enables the sharing and use of creativity and knowledge through free legal tools.” Many artists have released their work under Creative Commons licenses. Look for images like this, which indicate specific CC licenses:

So, the upshot of it all?

In educational contexts, fair use is an important concept; however, it is not unlimited, and depending on the way in which--for instance--a student project is displayed, there may be other restrictions. YouTube, for instance, may take video projects down or inform the creator that they may be in potential violation of intellectual property rights.

In general, students may use images, literary works, scholarship, music, and so on (though there are many more restrictions on current works, especially in the recording industry) in transformative ways that generate new insight, provided they adhere to all required conventions of citation and documentation.

Remember, though, that fair use is not an exception to copyright law as much as it is a viable legal defense for educational and other transformative uses of work that may be in copyright.

Work that is out of copyright and in the public domain, or work that is licensed under creative commons, is also available for use; however, it must still be documented appropriately and fully.

Where can I find images for fair use?

Anywhere, if you feel you can defend it; always read the rights statements to be sure you’re acting in an ethical manner. But that’s probably not what you want to hear!

  1. Can you cite it, fully? Images that you know the provenance of are likely better sources than others.
  2. Images of artwork that you photograph or scan are better to use than Google image searches.
  3. WikiMedia Commons: http://commons.wikimedia.org/wiki/Main_Page
  4. Flickr Commons (But read the rights statements!): http://www.flickr.com/commons/institutions/
  5. Flickr Creative Commons: http://www.flickr.com/creativecommons/
  6. Creative Commons search: http://search.creativecommons.org/
  7. SoundCloud and CCmixter for audio: https://soundcloud.com/ and http://ccmixter.org/
  8. FreeSound for sound effects: http://www.freesound.org/