Results tagged “creative commons”

Joys of the Public Domain/Creative Commons - Aluminum!

For reasons that don't need exploring at this juncture, I went out & found some neat-o public domain and open licensed pictures of aluminum, particularly related to its chemical/physical properties, and its use in food preparation!


Black and white photo of several aluminum pots and pans
Display of aluminum pots and pans.
Date probably is around 1910- 20. Troy photo.(Cornell University Library)

Printed catalog image of large array of aluminum pots and pans.jpg
Wear-Ever Aluminum cookware, from "Hardware merchandising August-October 1912"
(Internet Archive Book Images collection)

printed catalog image of multi-layer cooking pot with grill inserts
Round grill with aluminum pans, "Journal of Electricity", 1917.
(Internet Archive Book Images collection)

Refreshments on the ocean cruise to Broken Bay, South Steyne, December 1953
/ Australian Women's Weekly photograph. (State Library of New South Wales.)

single aluminum pot full of cooked bread leaning against a log
Spotted dog bread in the bush.
CC BY-NC-ND Camelia TWU.

aluminum solar oven with mushrooms cooking on aluminum foil
Solar Mushrooms.
CC BY antonio prud'hommmmme,

close image of jagged edges of aluminum ravioli press
ravioli press.
CC BY Robert S. Donovan

Large stacks of aluminum cookware in display outside of a shop
Aluminum containers.
CC BY-NC-SA Choo Yut Shing

Two men chopping tofu on wooden table and dropping small diced pieces into large aluminum bowls
Two Tibetan cooks diceing tofu...
CC BY Wonderlane


old black and white microscope image
old black and white microscope image
old black and white microscope image
"Some tests of light aluminium casting alloys--The effect of heat treatment .." 1919. (Internet Archive Book Images collection) (click individual pictures to reach originals.)

modern color micrographic image of aluminum structure showing fine wide layers of crystals
The grain structure of extruded aluminium.
CC BY-NC-SA CORE Materials/DoITPoMS, University of Cambridge.

modern color micrograph of aluminum showing semi-rounded crystals
As-cast wrought-grade aluminium alloy (Al-Mg-Fe-Si containing <1wt.% of each solute).
CC BY-NC-SA CORE Materials/DoITPoMS, University of Cambridge.

modern micrograph showing crystal structures
Channelling contrast TEM image of subgrains of extruded aluminium.
CC BY-NC-SA CORE Materials/DoITPoMS, University of Cambridge.

Modern micrograph showing cell structure of aluminum foam
Open-celled aluminium foam.
CC BY-NC-SA CORE Materials/DoITPoMS, University of Cambridge.

photo of aluminum metal in unworked form
Porous aluminium.
CC BY-NC-SA Taran Rampersad.

amorphous blob of metal in someone's hand
Aluminium frying pan - fried.
CC BY-NC Michael.
(Side note: notes suggest this is the result of ridiculous experimentation with thermite. Cool! Terrifying!)

metal bar bent to a curve sitting on a piece of paper indicating the measurements of the curve
Aluminium bend.
CC BY-NC-ND Barnshaws Metal Bending, Ltd.

close up on welded seam between a pipe and a rounded flat plate
Aluminum Weld.
CC BY-NC-SA Chris Yarzab.

These last two are just 'cuz I thought they were too cool to skip:

three women stand and crouch inside an airplane fuselage installing parts
Women workers install fixtures and assemblies to a tail fuselage section of a B-17 bomber at the Douglas Aircraft Company plant
, Long Beach, Calif. Circa 1939. Photog: Alfred T. Palmer.
(Library of Congress collection; transfer from Office of War Information.)

A woman poses in a scrapyard wearing jewelry made of scrap aluminum
Annette del Sur publicizing salvage campaign in yard of Douglas Aircraft Company
, Long Beach, Calif. Oct, 1942. (Library of Congress collection; transfer from Office of War Information.)

And I thought "Can We Scan This?" was a hard question...

We have some really amazing and interesting things in our Archives and Special Collections; when we have some funds available, there're always things we want to digitize for preservation purposes, and for public sharing. Unfortunately, copyright is often a huge barrier to scanning things and making them available to the world: we can do it if they're in the public domain - but are they? We can do it if we have permission from the rights holder - but who holds the rights? There's an incredible amount of research involved in digitization projects - who did this come from, was it ever published, where was it published first, was a copyright registered, was it renewed, when did the author die, who were their heirs, where do the heirs live...

But lately I've been grappling with a whole -new- set of questions for some digitization projects, thanks to some funding that can only be used to make materials available with an open license. Rather than trying to figure out who, if anyone, could or would object to our scanning project, we have to track down the documentation necessary to establish that we own the copyrights in the materials. In several cases, we can document pieces of the necessary legal chains: individuals signed releases to Entity A, and Entity A gave us the materials - great first step! But Entity A no longer exists, and we have no documentation that Entity A ever gave the copyrights to us - augh! In other cases we have documentation that the rights to some of the materials were transferred to us, but there are chunks of the materials where the rights probably belong to someone other than the group that gave us the rights. So, clearly, we don't own the rights to those chunks - and sometimes, those chunks are anything but clear to pull out of the overall collection.

The oddest thing is how -far- this work is from the risk management mindset that colors so much of copyright use analysis. Rather than uncertain documentation putting us in a riskier situation (are there heirs we didn't know about???), uncertain documentation produces a certain conclusion: If we don't own it, we can't license it.  And in this case, since the money can only be used for licensable materials, if we can't license it, we can't digitize it. :(  Not the most fun set of investigations.

(On the up-side, my various archives and digitization colleagues are all awesome, and great to work with!)

Another flowchart deconstruction

New flowchart flying around Facebook and Twitter this morning purporting to answer the "Can I Use That Picture?" question. (Here's the original post.) One thing the author, "The Visual Communication Guy", Curtis Newbold, does really well is engage on some ethical issues! But the legal information has some problems.

Again, if you don't want to scroll through my detailed discussion, there's a TL;DR graphical summary at the end of this post.

If an image is too small for you to read, try clicking, many will get bigger. I also included a text transcript for accessibility in the square brackets immediately following each image.



[What if I found the picture on social media or a website?

While the laws about distributing images through social media channels like Facebook, Pinterest, and blogs are still fuzzy, it is generally considered acceptable to redistribute an image that was originally intended to be publicly viewed by the creator. This is why you will typically find original images re-posted on blogs, news sites, and social media channels even if the person re-distributing the images didn't obtain permission to do so.

However, much depends on the way in which you intend to use the image. It is unethical to redistribute an image on Facebook, for example, if a person didn't intend for the image to go public in the first place. It is also a form of plagiarism to post an image on your blog or website without citing the original source (and it is considered best practice to link back to the original source as well.)

Pay attention to the fair use laws and othe questions to the left when considering using other images you find online. Be careful about using others' images for personal gain, commercial gain, and even formal presentations without obtaining permission first.]

The middle paragraph here is a thing of beauty and a joy forever. Hearts. So many hearts.

The first and last paragraphs, I have some little quibbles with. "It is generally considered acceptable to redistribute an image that was originally intended to be publicly viewed by the creator" is, I think, a true statement. It's just that "general" is not, perhaps, even the majority of people. -Many- creators do not think it's acceptable to redistribute their images (sometimes counter to what the law thinks about that). I'd also highlight that what people do & don't consider acceptable, and what the law does or doesn't allow (the law is fuzzy, but there are some clearer areas), don't always line up.

Moreover, the community norms of different social communities vary about 'generally acceptable redistribution' - Tumblr, for example, seems to be widely of the opinion that sharing someone else's art post is okay as a -reblog- (which the original poster automatically sees), but not as a new, separate post which the artist may not see...

Paying attention to fair use laws is good; and personal gain & commercial gain I'll discuss below. I'm not sure why Mr. Newbold is calling out formal presentations for permission-sensitivity; my overall impression is that those are as social-norms-governed as social media sharing.


definitions.png[Copyright - The protection given to any created image or work from being copied and distributed without permission. All images are immediately given copyight to the creator when the image is created.

Fair use - The legal right to use copyright images as long as the images are used for educational, research, or personal use, or as long as the image benefits the public good in some way

Creative Commons - Images that are copyrighted but that the creator has put provisions on their use. A creative commons license might stipulate, for example, that an image can be used as long as it isn't modified in any way.

Public Domain - Images that no longer have copyright restrictions either because the creator willingly relinquished their copyright or because the creator is dead and no one owns the copyright.]


Mr. Newbold's definitions of Copyright and Creative Commons licenses are not quite how I'd word them, but pretty accurate.

I like that he says fair use is a legal right to use, and I like that he includes "... as long as the image benefits the public good in some way" as part of his definition of fair use - but I think that this definition, especially coupled with other discussions of fair use in the flowchart section, understates fair use and implies some bright-line rules that maybe aren't so bright.

The public domain definition is off - "images that no longer have copyright restrictions" is a good starting point, but creators relinquishing rights is still the least-common way works move into the public domain. Works may not have copyright restrictions because they -never were covered by copyright- (e.g., U.S. federal gov't works), or because the term of copyright has ended.

While it's true that creators' dates of death are often relevant to whether the copyright has ended, they are not always relevant. Most importantly, the implication that a work is in the public domain when "the creator is dead and no one owns the copyright" is misleading in two ways. First, some people might take that to mean (especially with the further discussion in the flowchart) that copyright ends with the creators' death(s) - which is SUPER not true. Second, even when the creator is dead and there's no identifiable rightsholder, the copyright may still exist. I'll talk about this more below, under "Orphans."

The final "Yes!" and "No!"


[Yes!  If your picture is in the public domain (meaning the original creator(s) released their rights to the image) or if you purchased the image and its copyright (like from a stock photo company), you can feel comfortable using the image for whatever you like. If your image is protected under creative  commons, be sure to check the conditions under which you can use it (you may not be able to modify it or profit from it, for example.) If you are uncertain if the image is in the public domain or creative commons, assume it is not and avoid using it until you've obtained permission.

No!  If you couldn't answer "yes" to any of the fair use questions and you haven't purchased or obtained permission to use the image, you should under no circumstances use the image, regardless of where you found it. It is no only considered unethical to use another person's or company's image without permission, it is illegal. ]

A few quibbles on the "Yes!" - not quite right on the public domain definition, and there is a difference between purchasing a license or permission to use an image, versus purchasing "the image and its copyright". The latter implies actual transfer of the whole copyright, which is almost never going to be what's happening in a permission-to-reuse context (though if you did acquire the whole copyright in the image, it's true it would be a resounding "Yes!" to reuse.)

I also think the wording "protected under creative commons" is weird, and implies less reusability than Creative Commons is intended to create. I would generally say "released under" or "distributed under/with" a Creative Commons license. On the other hand, Mr. Newbold may be trying to encourage people to consider using Creative Commons licenses on their own works; in that sense, the "protected under" phrasing makes a lot of sense, because it counters the myths that persist that CC involves "giving up" an artist's rights.

As to the "No!" answer - couldn't be more correct. I would point out that this "no" answer actually also applies to social media reuse, as far as the true legality of sharing. Community expectations and ethics are one thing, but it really can be copyright infringement to make and distribute copies of someone else's stuff online, even if you just like it. (Fair use likely covers a lot of the uses that community norms seem to think are okay, though.)


[Would it be considered impossible to obtain permission from the original source?

Yes! If you are certain that it is impossible to obtain permission from the person or entity that created the image (if the creator died and no one owns the rights, for example), you are usually safe to use the image without permission.]


1. The original creator is often not the rightsholder of a work. This section does acknowledge that possibility indirectly, but readers of the flowchart might not understand that. Better to phrase it as something like "impossible to obtain permission from the rightsholder - who may or may not be the original source," even though that may reduce clarity.

2a. It is actually true that if you can't find anyone to ask for permission, you may be safe to use the image - but only if you're framing this as a risk assessment, rather than a legal, issue. It is highly likely that if you can't find anyone to grant permission, there's no one who would object to your use. But the fact that you can't find anyone to grant permission does not mean that, legally, you don't need permission; it just means that not having permission is unlikely to be a problem.

2b. The fact that you can't find anyone to ask permission does -not- mean that the legal conclusion would be that you didn't need permission. Rights do not cease to exist with a creator's death, and they -also- don't cease to exist just because the people who inherited the rights after the creator's death don't know they inherited them. Ridiculous, no? But true. This is what is known as the "orphan work" problem - when you can't prove the rights are -ended-, but you can't figure out who does own them. It's an issue libraries and museums struggle with frequently, as a lot of the unique materials in our collections are orphans.

One important legal consideration is the effect of unidentifiable rightsholders on the fair use analysis. It almost always strengthens fair use arguments for reuse, with respect to the "market harm" portion of the analysis. Concretely: if you really-o truly-o cannot find a rightsholder, then it's almost impossible that you're causing current market harm. You could be causing harm to a market that might open up when the rightsholders find out they're rightsholders, which is why museums and libraries are still justifiably worried about this stuff, but that's often going to be a stretch.

Note: What it means for it to be "impossible" to obtain permissions, or to track down rightsholders, is pretty tricky. Well-intentioned people have concluded that it was impossible to identify rightsholders for certain works, only to have others track down the respective rightsholders with a brief round of internet research.

There are also several related ethical question, with respect to reuse of orphan works. Just to start, is it more ethical to let them sit & moulder, or to share them with the public? Even when we don't know the creator(s) intent? There's a lot more to unpack there, but this post is already too long!

Fair Use



[Ask Yourself the Fair Use Questions

Are you using the image for personal, non-profit, educational, research, or scholarly purposes AND are you using the image sparingly, only for limited purposes?

Are you transforming or repurposing the image to create a new purpose or meaning?

Are you publishing the image in a fact-based context or publication that benefits the public as a whole (such as in a news source where it is important that people see the image)?

Yes! If you are using an image in an educational or research setting for limited non-profit uses (don't distribute on a brochure, for example), or to just hang on your wall, you are usually safe to use the image without permission

Yes! If you completely rework the image so that it isn't recognizable from the image, you can use it. Or, if you completely change the meaning (as you might in a parody), you are usually safe to use the image.

On a case-by-case basis, an image may be safe to use under fair use laws if the image is published in a non-biased way in order to inform or educate the public for the public's good. ]

[Will you be using the image for personal or commercial gain? (If you answered "No" to all the fair use questions, the use of your image would most likely be considered for personal or commercial gain.)


I like the emphasis on "Yes!" answers and the incorporation of ideas about public benefit into discussion of fair use. But there's quite a bit left out here, and some misleading and/or incorrect information about the law.

First, a use never -has- to be non-profit to be a fair use. There is substantial caselaw on commercial fair use. So educational/research users do not -have- to be non-profit to make a fair use - it just helps A LOT to be non-profit.

Similarly, a use does not have to be limited or sparing to be fair use. There is substantial caselaw on fair use of entire works, including commercial uses, like Google image and book search. Importantly, educational and research users often have good reasons why they need to use an entire work, to accomplish pedagogical, scholarly, or critical goals - and that may often be fair use.

The implication that personal use is fair use - i.e., "just to hang on your wall" - is interesting. Content holders -regularly- contest otherwise, especially when the personal use is substituting for a sale. Is it fair use to print a picture from a website that sells prints of that picture? I'd be willing to bet would say no. Is it fair use to copy music off of CDs you borrowed from a friend? The RIAA -has- said no. There are plenty of folks who do agree that personal use is often fair use, but especially when there is documentable market harm, courts are often not persuaded.

I do like the discussion of transformative use - a lot clearer than in the other "use flowchart" I picked at last month. But the "Yes!" here is a bit weird. Yes, changing the meaning as in a parody is likely to be transformative, but you don't have to rework an image so that it is unrecognizable to qualify as transformative otherwise. The appropriation art cases (mind-bending as they may sometimes be) strongly suggest otherwise. Moreover, just because a work is transformative doesn't mean that the statutory factors are irrelevant - courts do tend to look less favorably on commercial, non-commentary transformations than on noncommercial ones, or than on ones that are commercial (Richard Prince, anyone?) but culturally valued.

The discussion of the news and commentary flavors of fair use is quite limited here - it sort of implies that that only applies in fact-based contexts, which isn't right. But it's good that the public interest in seeing a whole image is recognized as part of the fair use analysis in news and commentary contexts.

The first half of the "Probably" box is a really great summary of fair use in general - but the second half runs off the rails a bit. "Non-biased" is not part of the legal requirements for fair use at all; having a bias and a strong point of view about an image is often going to -strengthen- a fair use argument, since it usually means you are engaging in criticism or commentary -of that image- (as opposed to just using an image to illustrate a discussion, which might be less likely (though still possibly) fair use.)

Finally, there's a box off to the side from fair use in the flowchart that asks about "personal or commercial gain". I'm not quite sure what Mr. Newbold was getting at here; commercial purpose is relevant to fair use (though not conclusive that a use is not fair.) But I don't understand what he means by "personal gain", as distinct from "commercial gain" -and- "personal use". Anyway. I feel like pieces of the contents of this box, and a few others related to the statutory factors that don't exist on this flowchart, belong over in the "fair use questions" area. 

Your Own Stuff


[Did you take or create the image yourself?

Was the picture you created an original idea?

Yes! If you took a picture with your camera or if you drew or designed an image and the concept was completely your own, you automatically own all copyrights to it and no one can use it or distribute it without your permission.

No! If you created a picture that is so similar to someone else's that it might be thought of as theirs, you cannot use your picture for anything other than personal use.

When in doubt, do your research to find out if you copied an idea. Otherwise, don't use the picture for anything other than limited personal use.]

This part is almost the most confusing, to me - despite also containing some very correct & useful information. Most helpfully - yes, your own "original" work is often the -very easiest thing- to use and reuse! However...

1. First, worth acknowledging that just because you created it, it does -not- automatically follow that you own it and can do whatever you want with it. If its your job to create it, your employer probably owns it. If someone hired you on a contract basis to create it, they may or may not own it (and that should've been addressed in the contract!)

2. Just because you took a picture with your own camera does not mean you can use the image - a photographic copy of an in-copyright artwork, for example, may contain little expression by the new photographer, and the nested copyright of the artwork may mean you have to engage in a more detailed copyright analysis than "I took it, so I can use it."

Wrinklier still, lots of us have images on our own cameras that we didn't take, or where we don't remember who took it. Legally, the copyrights in those images belong to the people who took them. Doesn't mean you can't re-use, but does mean that you may need to think twice.

3. "[T]he concept was completely your own" is a high bar for originality. Copyright doesn't necessarily require that. You can be inspired by someone else's work, or even engaged in homage to their work, without creating many issues for your reuse of your new works. It -is- true that the more the inspiration or homage result in your new works resembling the old ones, or copying their "expression" (choices such as lighting, angles, poses, etc can be expression in photography) the more reuse will involve questions about the copyright in the original works -as well as- your own new interpretations thereof.

4. Finally, COPYRIGHT DOES NOT PROTECT IDEAS. The United States does not recognize ownership of ideas except under quite limited circumstances (some patents, trade secrets). Copyright protects the way an idea is expressed, not the idea itself. Sometimes the two can be very hard to separate, but sometimes not.

For example: if your work can be mistaken for someone else's, Mr. Newbold says, "don't use it". That may be true if you literally copied someone else's work, e.g. by tracing or scanning. However, literal copying is not the only reason your picture might resemble someone else's! The law recognizes that independent creation isn't copying, and isn't copyright infringement - so for example, tourists take photos from specific scenic overlooks - some of those photos will be unique, but lots will resemble each other strongly, and the copyrights in those strongly-resembling-one-another images are separate, and you can use your own.

More importantly, if you are expressing the same idea as someone else, but your choices in -how- you expressed it are different, there may be no copyright issues in reusing your work. I saw a really lovely illustration of "Alice in Wonderland" done in the style of a traditional Japanese print. Reusing that might raise issues about the inspiration from the book (if it wasn't in the public domain), but it quite concretely doesn't raise issues about the similarities to other illustrations of "Alice in Wonderland", including the Disney movie! The resemblances between the illustration are not about copying the other illustrators' expression, but rather the unowned ideas, and public domain expression, of the original story.

In conclusion, there's a lot to like here, but as a complete guide to the "Can I Use That Picture?" question, it falls short.

click to embiggen

To the extent that my commentary adds any new copyright to these images that -I- own (I sincerely doubt that it does!), they are, like my contributions to the blog in general, licensed under a Creative Commons  BY-NC/Attribution-Noncommercial license.

Copyright Decisionmaking Flowchart - Some Critical Reflections

Yesterday, a new infographic on copyright decisionmaking for teachers started making the rounds in my social media spheres. It originates from

Because several people asked my opinion of it, and because several other people responded with concern equal to mine when I shared it, I thought it'd be worthwhile to post a review. I wanted to both praise the good parts, and highlight the parts that make me believe it should not be shared in its current form. If you like, you can skip to the parts about incorrect statements of law (smallish incorrect, huge incorrect). Or to the TL;DR overview graphic of my review.

(I intend to go through & add additional links to caselaw and statute when I have a bit more time.)

(Click small images to embiggen - but I've tried to transcribe most of the text.)


Parts of it are great! The section on owning your own work, and applying Creative Commons licenses to it is pretty good. I would share this with people (with one edit.)


Likewise, the overall flowchart for copyright decisionmaking is lovely (in fact, I use roughly this process in one of my regular copyright workshops to highlight options where use is straightforward.) I would, however, title it "Avoiding Copyright Challenges" or something else that indicates that this is only one of many possible thought processes for using other folks' materials. You can start with fair use.


The beginnings of the detailed flowchart on using other peoples materials are seriously excellent. I can see where the flowchart's creators were going with this - trying to make life easier for teachers and students - and in this section, they have done so magnificently. I'd change some wording here and there if I were creating this from scratch, but I'd share these parts with others, if they were available separately.

Langwitches-CanIBasics2.png    Langwitches-CanIBasics.png


In other parts of the chart, I have some disagreements with the framing of the issues, but that's more a philosophical issue than a legal one. There's also some minor misstatements of law in these parts.


Original: "The spirit of the copyright clause in the U.S. constitution is to encourage creativity, innovation, and the spread of knowledge. It is purposed to inspire individuals to contribute what they create to society. Copyright protection ensures that consumers will not pass off the work of others as their own, or reproduce, change, distribute, perform/display publicly without permission of the creator."

  • Fully and completely endorse sentences 1 and 2.
  • Copyright law has almost nothing to do with assuring that people "will not pass off the work of others as their own" - only the Visual Artists Rights Act addresses attribution requirements under U.S. law. Plagiarism is not a separately articulable legal harm under U.S. law. "Passing off" may rise to the status of a legal violation if it's copying that exceeds fair use, or if the lies rise to the level of fraud.
  • Copyright protection also does not ensure that "consumers" or anyone else won't use the work without permission - copyright law explicitly allows many different uses without permission or payment, including under fair use - but also in classrooms, small businesses, or even recording and selling a cover song! 


Original: "We suggest you create, don't copy. The creator always holds the first copyright (until it is legally transferred) and may use the work in any way."


  • It's true that creators own their works from creation until they transfer them away - most of the time. A chart like this doesn't really need to deal with employer-owned works, works for hire, etc.
  • "Create, don't copy" is a pretty silly statement. Some of our most lauded creators copied like heck. Copying IS PART OF THE NATURAL PROCESSES OF CREATION. The idea that copying and creation are different things is not a great dichotomy for teachers to be spreading.

Original: "When this is not possible, use works from the public domain (copyright expired or given away) or those registered with more flexible licensing agreements through sites such as Creative Commons. Even here, source citation is always essential."

  • Definitely do use public domain or CC works whenever you want to avoid dealing with questions of copyright and use.
  • This isn't a full definition of the public domain, but whatevs, its sufficient.
  • "registered with more flexible licensing agreements through sites such as Creative Commons" is a REALLY WEIRD way of saying "whose creators have made available under a Creative Commons license."
    Registration has nothing to do with copyright ownership (as is correctly noted elsewhere in the graphic!) Registration also has nothing to do with Creative Commons licenses, and you do not have to go through any site (including the CC's own) to grant a Creative Commons license. I meet a lot of people who are confused about how to grant a CC license, and think you have to do something in a central licensing registry or something, so I'm pretty sure the phrasing in this part of the graphic will cause additional confusion. 
  • Source citation is legally required under Creative Commons licenses.
    Source citation is not required by copyright law, and in any case public domain resources are no longer covered by copyright law, so source citation is not a legal issue at all with public domain materials.
    That said, yes, for proper educational use citation is essential - it's just that the graphic mixes it up with legal requirements persistently.


Original: "If nothing besides the original work is sufficient, receive permission from the copyright holder." 


  • No. If nothing besides the original work is sufficient, and you want absolute certainty about the legality of your use, TRY getting permission.
    The likelihood that a rightsholder will respond to an individual teacher or student (especially where the rightsholder is not an independent creator) is really low. 


Original: "When none of these are viable possibilities, educators (along with journalists, commentators, critics, scholars and researchers) have the extra option of employing Fair Use rights."


  • EVERYONE has the option of employing fair use.
  • Fair use is available even when you -haven't- looked for public domain or Creative Commons materials. 
  • You do not have to ask permission before considering fair use. (Though asking permission and being denied because they don't like your point of view can strengthen a fair use claim...)

Incorrect Part Smallish


Original: "Public Domain consists of works that are publicly available; works that are unavailable for private ownership or are available for public use."

Comments: This isn't so much incorrect as confusingly vague. The public domain consists of works to which copyright never applied, works in which the copyright has ended, and works that the creator has dedicated to the public domain (which is legally quite difficult to do.)
Using "publicly available" as a shorthand for public domain is a -particularly- confusing phrasing - lots of people think that anything they can find through an online image search is "public domain" because it is "publicly available."

Original: "Fair Use is not law, but it is a legally defensible position based on balancing four factors: nature, amount, purpose, and effect. Determining Fair Use is always a case by case, critical reasoning process."

Comments: FAIR USE IS MOST CERTAINLY LAW - which the creators know, because they immediately subsequently make reference to details of the Copyright Act. (17 U.S.C. § 107)  This may be an attempt to paraphrase that bugaboo of fair-use-questioners: "Fair use is only a defense to copyright infringement." There are quite a few detailed semantic arguments buried in that topic, but I kind of go with the fact that the law says "the fair use of a copyrighted not an infringement of copyright", as well as courts increasing tendencies to find fair use in declaratory judgments, during dismissal consideration, and at summary judgment, as a pretty solid footing of "not just a defense".


In my experience, teachers (and many librarians) often, understandably, desire certainty about the law. Unfortunately, fair use is a part of law that simply does not contain certainty. Clear black-and-white statements about fair use law, however much we may want them, are almost never correct explanations of the law.

The entire section of the flowchart detailing fair use contains multiple misstatements of the law (as well as a couple of other confusing inclusions.)


  1. "When in doubt, ask permission or don't use the work."
    This is, again, not a great dichotomy to establish as "preferred" - many, many creators do not respond to requests for permission. Others will happily tell users how much it would cost to do X, when X is clearly allowed under fair use or other copyright exceptions.
    As a workshop participant once put it, "Do you ask your barber whether you need a haircut?" 
  2. Quite correct! Fair use is always case by case, and you can use your best judgment to make the call in your specific case.
  3. "You can make photocopies for your students to use in class, but cannot make a pdf file, upload and share on your classroom blog for students to download."
    "You can use a curriculum handout or student activity (created by someone else) in your classroom, but you cannot share it on your classroom website."
    I have no idea where these statements are coming from. There's a nearby reference to "the Fair Use Guidelines", which may mean the 1976 Classroom Copying Guidelines, but even if you were to give those the force of law (they are simply one non-legislative group's opinion on a reasonable base interpretation of fair use) I really can't see how these two statements are generated from the Classroom Copying Guidelines.
    You can certainly sometimes share materials online with your students.
    You can certainly sometimes share materials in class with your students.
    Sometimes, putting copies of something online for your students is not fair use.
    Sometimes, making paper copies of something and handing it out in class is not fair use!
  4. "Consider FUTURE use of the work. (Might you want to share or distribute your work in the future?)"
    This is actually a legit thing to consider as you decide to use other folks' materials. Sometimes, fair use might cover copying for personal use, but would be more questionable for widespread distribution. However, it's also worth considering elsewhere - do the Creative Commons-licensed materials you want to use allow for the kinds of downstream uses you want to make?
    Fair use is not defeated just because you want to distribute something online.
  5. "Use portion of work that contributes to educational goals & purposes" and "in some cases, this will mean using a clip or excerpt; in other cases, the whole work is needed."
    Quite correct! Both of these things will contribute to a stronger fair use claim.
    However, the implication that these considerations are -only- relevant to users who are engaging in uses that are both educational and noncommercial is a bit problematic.
  6. "Whenever possible, educators should provide proper attribution and model citation practices that are appropriate to the form and context of the use."
    As a standalone statement, I love this - especially the "appropriate to the form and context of the use" part - appropriate credit is very context sensitive.
    However, the chart implies that this has something to do with whether a use is fair or not, which it does not. (Which the chart sort of acknowledges elsewhere - see point 7.)
  7. "Attribute with name & info to help people find original source." "Attribution in itself does not convert infringement into Fair Use."
    I'm glad they included the second sentence somewhere in the chart. It's the only acknowledgement that attribution is actually almost entirely orthogonal to fair use.
  8. "Your work needs to be transformative." "Add new meaning to make it original"; "Ex. Criticism, news, commentary, or parody", "Rework and use in different way"
    This is an exceedingly muddy representation of transformative use. (Especially in that it seems to suggest that the further-left statements are about transformative use and the further-right ones are about... some other mysterious thing that is not transformative use?
  9. "Fair Use DOES NOT apply if the goal is to establish a mood, convey an emotional tone, or exploit popular appeal. Ex. use of a song as a background music to a video."
    This is flat-out wrong. Use of a song as background music to a video can be an exemplar of transformative use. (Note: that link is to an advocacy organization; however, the Library of Congress cited some of those videos, and some similar ones, as exemplary fair uses when it approved the DMCA exemption for noncommercial remix videos.) (Secondary note: some of those videos are powerfully disturbing. Well worth watching, though.)
    It's true that using a song "as decoration" rather than because it is integral to the critical point you are making in a use is much less likely to be fair use, but it's not true that that means it is conclusively not fair use.
  10. "The majority must be your OWN work."
    Not so. The question of amount, with respect to fair use, has only to do with the proportion of the original work that is being used. For example, this critical remix video has been repeatedly challenged as a fair use by various rightsholders, and those challenges have been repeatedly revoked when the creators invoke fair use. 

Every single one of the "You can't claim Fair Use" statements is incorrect.

  1. Chart paraphrase: You're not going to distribute online/outside the classroom, but you're not engaging in both noncommercial and educational use, therefore you can't claim fair use.
    Reality: Fair use is available to commercial users, and to non-educational users. See, for example, Campbell v. Acuff-Rose.
  2. Chart paraphrase: You're not going to distribute online/outside the classroom, and you're a noncommercial and educational user, but you're using a portion that doesn't contribute to your educational goals and purposes, therefore you can't claim fair use.
    Reality: No single fair use factor is determinative, so you can't conclude "not fair use" just because their "amount" is big. That said, using more than is reasonable for your purpose is a good way to weaken your fair use argument.
  3. Chart paraphrase: You're are distributing online/outside the classroom, but you're not engaging in both noncommercial and educational use, therefore you can't claim fair use.
    Reality: WRONG. Fair use is available to commercial users, and to non-educational users. See, for example, Campbell v. Acuff-Rose.
    Note also, that distribution online does not somehow magically weaken a fair use case that would otherwise be okay offline. Online distribution can contribute to causing market harm, which may weaken a fair use argument, but for example, when there is no market to be harmed, the mode of distribution is likely to be irrelevant. 
  4. Chart paraphrase: You're distributing online/outside the classroom, and your use is noncommercial and educational, but you haven't "add[ed] new meaning to make [your use] original", therefore you can't claim fair use.
    Reality: This is, as I said above, a very muddy way of explaining transformative use. (I'm not sure there are un-muddy ways to do so, so the flowchart creators have my sympathies...)
    Transformative use can arise when the user is adding new meaning to a copied work. That's true. But you don't have to be an educational noncommercial user, nor do you have to be distributing online/outside the classroom, to claim transformative use.
  5. Chart paraphrase: You're distributing online/outside the classroom, and your use is noncommercial and educational, but you haven't "rework[ed] and use[d] in a different way", therefore you can't claim fair use.
    Reality: This phrasing seems to suggest a different angle on transformative use, and again, is correct that reworking a use and using something in a different way can strengthen a fair use argument as transformative use. But again, you don't have to be an educational noncommercial user, nor do you have to be distributing online/outside the classroom, to claim transformative use.
  6. Chart paraphrase: You're distributing online/outside the classroom, and your use is noncommercial and educational, but you're using more than a small portion of the original work, therefore you can't claim fair use.
    Reality: Fair use sometimes encompasses use of the whole work, especially when that amount is necessary to accomplish the kinds of purposes that are looked on favorably in fair use. Which the flowchart acknowledges in the other column of fair use analysis (i.e., point 6, above), so it's particularly maddening to have it suggest that the fact that work is being used online suddenly torpedoes all the subtlety of how the amount relates to the user's purpose.

TL;DR - a picture


Final note 1: all my edited/commented derivative images, to the extent they have enough additional authorship to constitute separate copyrights, are licensed under a Creative Commons BY-SA license.

Final note 2: Why did teachers teaching in Brazil spend this much time on a flowchart for US law?

Crabby about credit

I begin to understand how completely frustrated pro photographers are by internet image-sharing behaviors.

Today's fun:

photo of an egg decorated to look like a Dalek, shared on George Takei's Facebook pageSo, okay, I know I've said before that I don't care that much when people use my image. That's absolutely still true. But I do care about publicizing Creative Commons licenses. And I care considerably more that photographers who make a living from their work get credit for it, and that George Takei's very popular Facebook page is -TERRIBLE- about crediting image sources.

(Yes, yes, I'm also a massive fair use fan, and yes, this is arguably fair use. But 1) even when it is fair use, not crediting is douchey. (Though not usually a copyright violation.) But also 2) this is not remotely transformative, nor is it news reporting or commentary, and it's definitely commercial use. For all that Takei's FB page takes some of the form of a personal page, it very much isn't. (Dude's career rebound, which is awesome, has gotta be partially credited to this page.) I really do think personal noncommercial uses like J. Random Internet posting to Reddit or zir Tumblr or whatever are often fair use.)

Anyway, here's the email I sent his team:


You have the right to use my Dalek egg photo - IF you comply with the terms of the Creative Commons license under which I released it. Which you have not.

It would not be at all difficult for you to do a two-second google search and find the source of the image, since I'm a copyright lawyer, and have several times written about the copyright and Creative Commons issues involved in the rampant unauthorized reuse of my photo online (despite the fact that all it takes for the use to be authorized is to provide the full credits necessary under the Creative Commons license).

I know you're an incredibly popular image-sharing FB page, and I know you don't usually bother to provide credit, so I'm not feeling nearly as charitable as I was when I corresponded with ThinkGeek about this last week.

I'm not requesting that you take the image down, I'm requesting that you fix the post to comply with the terms of the Creative Commons license. If you can't do that, then I'll report the unauthorized use to Facebook, for them to take it down.

Full details on how to -correctly- comply with the Creative Commons license here:

We'll see what comes of that.

ETA (4/22, 8:09am Cntrl) - They fixed it, beautifully! Good on them!

Takei's FB post edited to include credit, link to original, and full acknowledgement of the Creative Commons license.

Meanwhile, a lawyer friend, Mike Sadowitz, has figured out my long con here:

Facebook comment - But what a fun way to police things! Make something super popular that turns into a meme and is widely and predictably circulated at the same time every year. Teach people about copyright. Become the most famous copyright librarian of all time. Profit.-Totally- how I planned it. (Except not. Happy Birthday again, Dalegg-owner!)

Second edit (4/22 am): last night, a very polite person on Twitter pushed me on my suggestion in the email that I would report their use to Facebook for takedown. I don't agree that this is obvious fair use (as I said, commercial, non-transformative), but I do agree that reporting this would ultimately harm actual individuals just sharing content with their friends, and that I -wouldn't- have exercised the takedown notice option for just that reason. So saying I would was kinda obnoxious, and I shouldn't have done so.

It's almost Easter, so it must be time to talk about Daleks again...

If you've read the saga of the Dalek egg, you know that I made an easter egg that looks like a Dalek (from the TV show Doctor Who) as a gift for a friend a few years back, and posted my photos online with a Creative Commons Attribution license. It keeps making the rounds.

An easter egg decorated to look like a DalekLast night, I got a message from a friend on Facebook -

Message - Thinkgeek shared your Dalek egg an hour ago on Facebook and it already has 3,400 likes!As always, I'm more curious than anything else about how, why, and whether users provide credit. ThinkGeek had gotten close - providing both my Flickr username and a link back to the original image, but there was no mention of the Creative Commons license. Which is, in my mind, a really key element of using CC images, and the thing users most often leave out.

I think people omit mentioning the CC license, because the general ideas around credit are that the creator's -name- is the most important thing. And online, linkbacks, I guess.

But the thing with Creative Commons is, other people don't know CC exists unless they see it mentioned. To me, the most important part of crediting my images is acknowledging the CC license!

It's true lots of people don't know about that part of CC licenses, but the friend who sent me the initial link does, and she's not a copyright geek. (She's all kinds of other wonderful kinds of geek, but not a copyright geek.)

Me - Did they actually do the CC license credit - Her - They linked to your Flickr and used your username but did not mention the license. So close?Mostly, I ignore people misusing the Dalek egg images online. But I love ThinkGeek, so I sent them a message.

Hey there, that's my dalek egg you're using to drive traffic on your page. While you and the rest of the world are -more- than welcome to make use of the image under the terms of its Creative Commons license, you are not actually meeting the terms of my Creative Commons license.

You've managed to credit me by username, which is awesome and -is- required by the license, so well done there. You've also linked to my Flickr page, which is also awesome and more than most commercial users have managed.

You have neglected to include the title of the image (which I don't really care about, but is required by the terms of the license). More importantly, you've -neglected to mention that you're using it under a Creative Commons license- which is required by the license, and about which I care really a lot, because how are people going to learn about the awesomeness of Creative Commons if people omit the "what license I'm using it under" part of the use requirements?

I'm only really hassling you about this because I think ThinkGeek is pretty cool, and I think you can do better than this. Lots of online idiots have used it without any credits or anything, and I don't bother with them. Prove me right that you're good peoples?

AND THEY FIXED IT! (Their first attempt wasn't quite right, but then they got it absolutely perfect.)

screenshot of the Dalek egg photo on the ThinkGeek Facebook page with full credit and an acknowledgement of the CC Attribution license
Also, 7,660 likes? The internet is really weird about Daleks.


Additional observation from a friend - BoingBoing didn't follow Creative Commons Attribution practices any better when they first blogged it in 2010, but as a news org, they have a little better claim to have been making a fair use copy (and thus not needing to follow the terms of the CC license, because they aren't making use of the license.)  On a -very- quick overview of about four recent photos, they seem to not have very consistent captioning/credit practices.

Personal Photo Sharing - Things to Think About

We just had a "managing your personal photos" drop-in session here at the Libraries, and I was tasked to help people think about legal issues. Thought I'd turn my handout into a blog post!

If you're in it, you might not own it. (Except for selfies.)

Copyright ownership -usually- belongs to the photographer. So pictures -of- you often legally belong to someone else. Of course, when you take selfie, you -are- the photographer, so the ownership is actually easier.

As a colleague asked at the workshop, can you download and save all the pictures -other people- post of you on Facebook? You certainly don't own all of them, but most of your friends probably won't care. The big problems come when, unexpectedly, someone -does- care.

I wrote a little more about this "ownership" conundrum with pictures of yourself & family members a while back.

Even if you don't own it, you might still be able to use it.

You can use other people's stuff without permission -sometimes-. It's more likely to be okay to do that if you are building on their stuff to make new things, or to educate other people - and always better if not for profit. You'll want to Learn more about fair use to make educated and responsible decisions about this.

Not giving credit: sometimes a legal or academic integrity issue. ALWAYS DOUCHETASTIC

Providing credit or attribution is often not a legal requirement. But not providing credit, especially when it is -easy to find the original- is just a nasty move. If you like it enough to copy it, doesn't the person who created it deserve a little nod? Also, for school assignments and scholarship, not providing credit can result in disciplinary proceedings that are separate from legal courts - passing off someone else's stuff as your own is a serious academic offense.

There's tons of stuff you can 100% legally use for free

If you -need- to use a particular work to make a point, or to communicate an important concept, it may be legal under fair use. But if you want to remove uncertainty, look for stuff you are already actively allowed to use! The public domain includes works that we all own, and Creative Commons works are already approved for certain types of re-use.

Here's a whole lot of ways to find Free and Legal Stuff You Can USE.

Copyright in Your Personal Life

This post is based on a talk I gave/conversation I had today at the "Enhancing Quality Staff" symposium. I love this symposium, because I get to wander away from academic copyright issues, and there's always a ton of cool people who want to wander with me! This time, the session description promised discussion of yearbook photos, family papers, and crafts and hobbies. Here is (roughly) what we talked about - apologies for the all-about-me-ness of the examples - but hey, it's about your -personal life-, right?

Legal Super-Basics

You are currently a copyright owner. So is everyone else. Copyright owners and consumers are not actually separate groups, it's all cyclical.

cat sprawled across two pet beds captioned Dis mine dis also mineA lot of people get very possessive about "their" stuff, but want to easily use other people's stuff. Realistically, you can't have both of those things. IMO, owners relaxing ideas about what they want to control usually works out better for everyone, including the owner.

(Incidentally, I intentionally used the lolcat image -because- I could not figure out who owned it or where it came from. I did a search to try to find the original, but there are just too many copies of it (with a bunch of different pieces of text) out there in the world.)

Copyright owners get to control roughly four things: making copies, distributing copies, public performances or displays, and making derivative works. But they do not -always- get to control those things.

Finally, the law does not care very much about attribution or credit. But -people- do care A WHOLE LOT about that. In a lot of copyright situations in your personal life, community norms and practices, individuals' feelings, and interpersonal relationships may well be more important than law.

Familiar-ish Reasons You Might Be Able To Use Stuff You Do Not Own

Not a copyright issue - i.e., you're doing something that isn't one of the things owners get to control. Reading a book aloud at storytime at a library is a public performance, and may be a copyright issue (though it may be legal as a fair use or for other reasons.) Reading a book aloud to your kids, grandkids, cousins, babysittees, and/or their friends in someone's home seems like a very similar activity, but because it's not -public-, it's just not a copyright issue.

Explicitly legally permitted: the thing you're using is in the public domain, or there's a narrowly-tailored copyright exception that covers your activity, or your activity is fair use, or you have a license or explicit permission!

We also side-tracked here, thanks to an insightful audience comment, into the fact that, sometimes, a license may -prohibit- uses that would otherwise be permitted by copyright law. Worth noting when you agree to terms of use!

More Obscure Reasons You Might Be Able To Use Stuff You Do Not Own

De minimis use

large blob of blue-grey pixelsI copied the above image from an image related to a current blockbuster movie! I did not think twice about the copying, because that is -just so little of the original- that if anyone were to complain about it, I could respond that "de minimis non curat lex" - "the law does not concern itself with trifles." (Thanks to Greg Cram for the pixel-copying as an example of de minimis use!)

We actually have moved away from the de minimis doctrine in copyright law, especially with the music sampling cases that developed the theory that a single-note sample required a license. But recently courts have actually been a bit more receptive to it: the District Court judge in the Georgia State case said that readings that had been copied and uploaded to a server, but which had not demonstrably been downloaded or used by any students, were de minimis uses - wiping out the infringement claim without even considering fair use. (P. 93 of the opinion PDF.)

Still desperate to know what those pixels actually are? Benedict Cumberbatch's eye.

Some Stuff Is Not Copyrightable

Specifically, facts, data, ideas, and useful objects. Recipes are a great example of this: you can own the pictures you take of your dish, you can own your lyrical description of the smell of it baking, or the texture of the ingredients between your fingers. You cannot own the basic information that if you put these various things together in this order and in these ways, and then heat (or chill or freeze or whatever) them for this long, you get this food.

I think this is a lot more applicable in the crafting and hobby worlds than the community practices of those worlds recognize. I'm pretty sure, for example, that this excellent sewing pattern is not copyrightable.

pattern drawing for sewing a swiffer cover

The blog post with all the great pictures showing how to put together your eco-friendly reusable reversible swiffer cover, on the other hand, is definitely copyrightable.

The crafting community has a lot of people in it who are very certain they own their sewing, knitting, crochet, cross-stitch, cabinetry, or other patterns. Many of those creators do freely share the patterns for personal use but ask that folks not use them for products for sale. Others (including commercial pattern producers) are extremely possessive of their patterns or instructions, even when there is little difference from a recipe. Community norms and practices are pretty important here, as is giving credit (though sometimes the community norms about that are quite different from, say, academic attribution standards.)

Implied license

When a content owner provides you with tools to perform a certain action:
NyTimes sharing menu
(Every New York Times article includes tools to save, email or print the article.)

...or a product that contains copyrightable content is sold with a particular intended use:

handmade gift tag
(My friend Leah uses scrapbooking supplies to make gift tags & greeting cards.) get to do those kinds of things with it. Implied licenses are messy, because they rely on what the reasonable expectations are of the various people (owners, users, etc) involved. But they're actually pretty important to a lot of silly little incidental uses, especially at the personal level.

Applications: Family and/or Personal History

I know I own one of these four images of me:

several photos of meAppearing -in- a photo is actually a good indicator that you may not -own- the photo - technically, the photographer usually owns the copyright in a photo. I took the upper-right photo, the bottom two were taken with my camera, but by (right) a stranger, and (left) a friend (although I'm not sure whether Matt, Kathleen, Ruben, Erin, or...) The top left photo was taken by a family friend, who sent me a print, that I later scanned.

I guess my point with these images is that in our personal papers, and those of our family members, there are going to be a lot of things that neither we nor our relatives legally own, copyright-wise - but which are -ours-, in a lot of very meaningful ways. Most of these technical "copyright owners" will not care at all what I do with these images. Sometimes, trying to get all the little copyright details right, especially for personal mementos like these, is just a little ridiculous.

But there's also a lot of personal mementos that might be owned by people - or companies - who might care just a little bit more. School pictures, studio portraits, newspaper clippings - these may also feel "ours" - but they may have real owners that really care what we do with them. My understanding is that most school photos these days come with instructions that you're not supposed to share them on social media, for example.

Older school photos, though...

two school photos of me
(First Grade, Eighth Grade - is putting these online fair use?)

What about old family portraits (painted or photos)? Or letters from your grandpa to your grandma? Inheritance law affects who actually owns copyrights to stuff -created- by your family members - but family papers may include tons of stuff that no one in your family owns, but everyone feels they have a right to control. Interpersonal relationships are really key with this stuff - you know your family best. And, as one session participant said today, you know best whether you want to get along with them, or tick them off!

Applications: Crafts and Hobbies

To the extent that patterns or instructions are copyrightable at all, it's because of whatever original creative expression they contain. I don't think either this onesie (embroidered by me for a friend's daughter)...

red baby onesie embroidered with the words commie punkOr this cross-stitch pattern (which I created by tracing a map of the Mississippi River through Minneapolis)

cross-stitch chart of Mississippi river...contain enough original expression for me to own any copyright in either (though each was quite a bit of work.) When I added hearts plotting the locations of my friend's favorite bars in Minneapolis, that maybe would reach copyrightability.

But, by and large, that is not really how the crafty community thinks about patterns. I've seen patterns clearly inspired by pop-culture, with very little additional expression from the creator, that had "I own this, you can only use it on my terms" written all over them.

baby onesie embroidered to look like a star trek uniformI'm pretty sure that various parties that own the rights to Star Trek, own the rights to this - (and yet, since ownership and legal use are two entirely different issues, I'd go so far as to suggest that that's possibly a de minimis use of Star Trek copyrights.)

This kind of thing can get ugly and messy, as with the recent situation when nerdy retailer ThinkGeek started selling "officially licensed" Jayne hats (from the TV show Firefly) - and the rightsholders (not ThinkGeek) then started shutting down the booming crafty microbusinesses that had been selling handmade Jayne hats. The semi-commercial nature of selling a craft product based on a cultural reference - especially when those sales are tolerated (even encouraged) by rightsholders for years - makes the legalities very cloudy, and can upend community norms and mess with people's reasonable expectations.

There are lots of other wonderful examples of craft works based on third-party content - more than half of the "Sunday Sweets" cakes featured on present fascinating questions of fair use and transformativeness - the more so when they're created by a commercial bakery. Are cosplayers who strive for authenticity on firmer, or more questionable legal ground than those who put a creative (transformative?) spin on a character?

We didn't have time to get into many questions, though one great one that was posed to me afterwards was - does my kid need to get a license when he and his friends play music at a nursing home? Our personal lives extend in many directions, and intersect with copyright almost everywhere we go!

In summation...

This post, and today's talk, barely brushed the surface of all the many ways copyright may rear its head in our personal lives, but I think these various examples demonstrate the many ways in which copyright law is not well-constructed to deal with individuals - as owners, as users, and in all the other ways we interact with content.

Right about now is when I'm thankful for the clarity of Creative Commons licenses.

embroidered stick-figure comic stripAdapted (yes, by me) from "1337: Part 4" CC by-nc Randall Munroe.

On releasing an image to the wilds...

(There are no image credits on this post because (much to my slight embarrassment) I made all of these. The eggs are all Creative Commons licensed over on Flickr; click any picture to go there.)

I have a long history of making slightly geeky easter eggs for friends and family. I grew up making silly eggs with family, and later learned some of the techniques of pysanky, traditional Polish egg-decorating. (Despite not being Polish. Or Christian, actually.)

The first seriously geeky one was actually inspired by a student who worked for me in a tech center at the University of Michigan Libraries, who said "You couldn't make a -Batman- egg, could you?"

Egg decorated with Batman logos and a utility beltThanks for setting me off down a lifetime of strange creative choices, Asif.

Egg decorated with polynomial functionsEgg decorated w picture of Aang from the Avatar animated seriesEgg decorated to look like Superman wearing a capeEgg decorated to look like a spaceship from the series Stargate Atlantis
To maintain plausible deniability about my own extreme geekiness, I'm not going to admit which of those were requests, which were done with specific friends in mind, and which were just for me...

Some time ago, I made a birthday present for a good friend who is a fan of Doctor Who. Although I am not, myself, a big fan of Doctor Who, I was -aware- that the internet likes Doctor Who. I just wasn't quite aware -how much- the internet REALLY LIKES DOCTOR WHO.

Egg decorated to look like a Dalek from Doctor WhoI documented the creation pretty carefully, because I'd referenced some lovingly detailed info from ProjectDalek, and they ask folks to document their builds. I honestly don't remember how it got there, but relatively shortly after I posted my photo series, it ended up on BoingBoing. It was also featured on Neatorama around the same time, and several photos were used on a site called Kuriositas.

This is all awesome, and from my perspective a bit hilarious. But also it's -100% totally legal for all those sites to copy my pictures- because they were published with a Creative Commons Attribution license. Anyone can use them for any purpose, without further permission from or payment to me, as long as they give me credit and say they're using it under a Creative Commons license. That's it, done!

Since 2010, the Dalek egg is still pretty consistently the most-visited image in my Flickr feed, and hits to it spike right around Easter every year. It shows up a lot of random places around the web. A co-worked spotted it on Buzzfeed fairly recently. The actual egg lives with its owner in Northeast Minneapolis (though it did make one public appearance at the Nerd Party Storefront-in-a-Box in summer 2010).

However, I was reminded of it this morning, when a friend sent me this Facebook message:

screenshot of a facebook message that asks Was this yours and links to a Reddit pageOn visiting the relevant Reddit page, I saw a link to my egg. And, as is common for Reddit, it's actually a link to an version of the file. This is actually the first time I've seen it anywhere remotely prominent where there wasn't even a vague stab at providing image credit. I don't feel outraged about it; I recognize that what happens once an image is on the internet is waaaaay out of the control of the original poster.

But the Reddit URL got me digging through my Flickr stats, and lo & behold, I found it shared on Reddit two weeks ago - with an argument about proper credit immediately after posting, even though that poster never made a copy of the image - but -did- link to my original version. (Reddit's does have ethics, folks.)

Amused, I dug even further through my Flickr stats, and ran a TinEye search. The picture is all over the place, sometimes with credit, and sometimes not. There's a post on a site called Loljam that is a direct copy of the Buzzfeed post, only it neglects to credit image sources. There's lots of copies of it shared on personal blogs that link or provide credit to bigger blogs (mostly Kuriositas) that shared it first. I have no doubt there's quite a few copies out there that I can't see from Flickr referrers or TinEye. The spread is kinda awesome.

If I were a professional photographer, I suspect I would not find the unattributed uses so funny.

Finally, what got me laughing hilariously and made me to decide to write this blog post - I noticed I had some "FlickrMail", and discovered two requests for permission to use my already-CC-Attribution licensed image - one FROM A BRANCH OF THE BBC. Who are the creators (though perhaps not the actual copyright owners) of the original TV series on which my unlicensed, no-permissions-sought, fair use derivative and/or arguably-transformative work was based!

I just...

Also, I hate it when people ask for permission to use things that already carry a CC-license sufficient to the purpose.

Anyway, I responded to both the BBC and the other person requesting permission to use my image with the following:

ITSALREADYCCBY.png --------------------------------------------------------------------------------

Dear Nancy

BBC Wales online are planning a fun Easter feature on how to decorate eggs and would like permission to include your fantastic Dalek Easter Egg . We would, of course, credit you accordingly.

I look forward to hearing from you.

Kind regards

Melanie Lindsell
Producer, BBC Cymru Wales
Hi Melanie,

You don't need any additional permissions to use any of the images of the Dalek easter egg, as they are all already licensed for use with a Creative Commons Attribution license. All you need to do is provide credit, and state that you're using it under the Creative Commons license, and you're good to go.

I will not provide separate permissions to use it, even if that (sadly) would mean that you would not feel able to use it. I am a big fan of Creative Commons licenses, and would like to see them used more (when appropriate) by everyone!

I would -love- to have the egg featured on your site - up to you whether you think the Creative Commons license covers your use.

-Nancy Sims-)

Anyway, that's it. Put an image online, and if it captures the imagination, it'll get used. And used, and used. Sometimes legally, sometimes possibly-legally, and sometimes people will ask for permission when they don't need to. There are good and bad things about all of that.

Happy Easter, if that's your thing!

Wikipedia as an image source

Wikipedia is increasingly an excellent source of images that are free for all kinds of uses. This recently came up in a discussion about resources for MOOC teaching, but it can also be a great source for a wide variety of projects. If an image is on Wikipedia, it is very, very often free for a -wide- variety of public uses!

But there should probably be one really quick step in the process between seeing an image on Wikipedia & downloading it for use. That is to take a quick look at the -image's- Wikipedia (or Wikimedia Commons) page to see if the reason Wikipedians think they can use it also sounds like it'd work in your use context.

Usually, all you need to do is click directly on the image (which is a good idea to do anyway, since it lets you download a higher-quality version of the image, and access full information for attribution or citation, if necessary) whereever it appears on Wikipedia.

The Wikipedia page for "Anatomy" provides a lot of great examples:
  • The_Anatomy_Lesson.jpgThe first image on the page is of this Rembrandt painting. Clicking on the painting takes us to - where we can see (towards the bottom) that it's in the public domain. Awesome - free for us to use.
  • Further down the page there's an animated .GIF of an MRI scan of a human head. The image page says that they're using it under a Creative Commons "Attribution-ShareAlike" license and/or a GNU Free Documentation license. The former means its free for anyone to use as long as they provide attribution, and the work in which it is used is itself Creative-Commons licensed. This is probably not a barrier to use in a course context, because when you use a ShareAlike-licensed work intact in a collection with other stuff, the collection doesn't have to be CC-licensed, just the individual image. But it may provide a barrier if you want to adapt the original image in a context where you can't Creative-Commons-license the result.
  • There is also a line-drawing illustration of pulmonary anatomy on the page. The image page states that it's public domain, from an old edition of Gray's Anatomy. Good to go for any use.

(Note: Wikipedians may not always be 100% correct about whether an image is in the public domain, but they are good at documentation, and good at self-correction. I'd say they're about as good a source of public domain information as any, these days. There's no perfect information.)

Most of the time, checking the image page is going to give you solid reasons why you -can- use the image, like public domain status, or Creative Commons licenses. Every once in a while, I've come across an image used on Wikipedia with a fair use justification, or because the image was originally distributed for promotional purposes (i.e., it was put out in public with the intent that it be used.) For example, check out this Monty Python image. If you understand why Wikipedia is using it, that may or may not -also- be good in your context - you'll want to consider the specifics.

I've also sometimes come across cases where the image page shows that Wikipedians are actively debating whether that image is appropriately used (for example, from today's featured article) Again, a time when you may well be able to use it, but you'd want to consider the specifics.

Also worth noting, if you want to systematically search, rather than just use an image you randomly stumbled on in Wikipedia, Wikimedia Commons provides a searchable and browseable collection of media (more than just images) that includes tons of great, open or free, stuff.

Clearing up a misconception about Open Source Software

Recycling emails into blog posts, yay!

Although I'm not much of a programmer, I'm a big fan of Open Source Software. Freeing source code for tinkering by random interested parties has produced a ton of awesome things I use all the time (Linux! Gimp! Libre Office! Inkscape! Audacity! Freakin' VLC, peoples!)

But there's a weird misconception about open source software (OSS) licenses that I've run into a number of times - apparently, quite a few people think that OSS licenses prohibit later users from commercially exploiting OSS code.

If my experience is anything to go by, the programmers, computer scientists, OSS advocates and other licensing junkies among you are thinking, "Wow, that's a ridiculous misunderstanding!" And many of the rest of you are thinking, "Well.. they do, don't they? How could anyone commercially exploit something that's given away for free?"

It seems to be a pretty fundamental cultural mis-communication. So if you're in the former group, consider this post just a heads-up, info-sharing, "hey, you might want to check if the people with whom you're communicating are clear on this point!" If you're in the latter group, here's a quick clarification:

There are a variety of free/libre/open source software (FLOSS) licenses. Pretty much all of the OSS licenses allow re-use of open-licensed code by third parties, but most also require that third party users must themselves make their code freely available. Apparently, many folks understand the requirement to make code available as precluding commercial use by third parties. But this is not true!

There are quite a few ways one can commercially exploit OSS code while also fully complying with the "open" requirements. One good example would be the Red Hat company. While the code of most Red Hat products is itself openly accessible and free for re-use, people give money to Red Hat for the convenience of getting a well-curated set of open source software, for the reliability ensured by the brand name, for product support, for enterprise-level solutions, and for many other reasons.

One factor that may contribute to this confusion is that Creative Commons licenses, the most common open content licenses (i.e., for freely sharing text, images, audio, video - rather than software code), have an option for licensors to indicate that they are only licensing "noncommercial" use. With the correct combination of terms, a Creative Commons license may enable free re-use for anyone except commercial users. Although there are some major differences between open source software licenses, the major OSS licenses enable free re-use for anyone including commercial users.

I'm not deeply versed in the arcana of FLOSS (or even all of the arcana of free/libre vs OSS), so if I got something wrong, please correct me in comments.

FWIW, my favorite public license remains the WTFPL. (Depending on your work environment, possibly NSFW.)

I have thoughts...

...they just don't often end up here. I always want to write comprehensively - but many of the things I think about are way too big to write comprehensively about in a blog format. So, in hopes of more of my thoughts making it here, even in incomplete form, some annotated links.

Things That I Have Been Thinking About

  • Origami folding patterns
    Painter Sarah Morris has been making paintings based on the crease diagrams developed by origami artists, who have sued her for copyright infringement. The news stories about this case focus on whether the paintings are transformative, whether they are fair use, and issues of credit and attribution. But the first question that comes to my mind is, how would origami crease patterns be copyrightable in the first place?

    LangvMorrisfigure.jpgAs far as I understand it, crease patterns are algorithmically-generated instructions - incomplete ones, at that - for how to produce an origami figure. Instructions, recipes, diagrams that represent pure facts: not copyrightable. Certainly there's a lot of work involved in developing the crease patterns, but that's not copyrightable either. Origami figures, once folded by an artist, may well be copyrightable in themselves - they're certainly expressive and creative. Newly developed crease patterns may even be patentable! But I'm pretty sure Lang's understanding of origami copyright is incorrect.

  • Annoying permission requests
    A student in a class _about copyright_ requested permission to quote from our Copyright Information site in a class presentation. Our Creative-Commons-licensed site. In a class presentation. Either that student is not going to pass that class, or that instructor is really incompetent.
    Asking permission when fair use applies is a waste of your time and theirs, and shrinks fair use for all of us. Asking permission where Creative Commons licenses apply, or from someone who wants you to share their stuff is really quite disrespectful.

  • National blanket licensing
    Ariel Katz recently discussed the parallels between national blanket licensing and taxation without representation. Since there are frequently proposals to levy blanket fees on file storage media in the U.S., and blanket licenses are imposed on many venues here via extralegal (but close to unavoidable) means, I appreciated his insights on the fundamentally anti-democratic nature of the Canadian system. Choice quote:

    "Canada has established a "dancing tax", collected by, and for the benefit of, private entities, because they asked, nobody could afford to vigorously object, and the Board approved."

[Edited July 9 to move music stuff to new post.]

Free and Legal Stuff You Can USE!

Adapted from a presentation today at "Enhancing Quality Staff 2012", which a really fun and engaging symposium, and always really well-run (by UMN Libraries colleagues.)

Sometimes it gets a little tiring to work through all the details of copyright exemptions and exceptions. Especially when we're building on other people's stuff to make new things, we can make choices that make everything WAY EASIER - just search for inspiration amongst stuff you already know you can use!

(Note: this is all highly U.S-centric. Sorry, international folks, I don't know your public domain laws. Creative Commons should port, though!)

You Can Use Stuff When...

Copyright doesn't apply
This is also known as the public domain - the body of works available for all of us to use. We all own them! Sometimes it's hard to figure out if something is in the public domain, but there are two times when it's fairly easy:

If it was published, in the United States, prior to 1923
If it was produced by the U.S. federal government.

There is a ton of other stuff in the public domain, including things from well after 1923, but that's the easy stuff.

ETA, 6/27/12: please note that neither one of these situations is always 100% easy! For the 1923 cut off rule, "publication" can be an issue (e.g., letters in an attic from 1912 - probably never published, possibly not public domain.) And many federal government resources are produced by contractors, who may own the rights. You may need to learn quite a bit more, to make determinations about public domain status for yourself.

If someone other than you is making the assessment of public domain status, you will want to consider the reliability and authoritativeness of that assessment.

Permission has been granted
Here's one way to know you have permission: "Can I use this?" "Yes."

This often works well when you can make contact with the creator directly, but note, this only works if you ask the person who owns the copyright - which is often not the creator!

Open licenses are another way to know you have permission - it's a form of licensing where the rightsholder gives the whole world a license to use the work (though sometimes with some restrictions.) Creative Commons licenses are the most common form of open content licenses; free and open-source software licenses are another example.

Places to Find Stuff You Can Use

Creative Commons Search -
Search through many different sites for Creative Commons licensed content in a variety of media.

Internet Archive -
Slightly overwhelming listing of multimedia content. Creative Commons (& other open licenses) and public domain.

"The Commons" on Flickr -
Photos from archives & museums with "no known copyright restrictions" (i.e., probably public domain)

Open Clipart
Vector/clipart images. Widely varying quality. All public domain*.

Flickr Creative Commons content -
Use the advanced search interface on Flickr to find only Creative Commons licensed photographs.

Musopen -
Collection of sheet music and recordings. All public domain*.

CC Mixter -
Collection of sound samples and finished musical works. All Creative Commons licensed.

Jamendo -
Music site. All Creative Commons licensed. In and out of service, lately.

Magnatune -
Music site. All Creative Commons licensed, but primarily available to fee-paying members.

Project Gutenberg -
Collection of text and scanned-image copies of books. All public domain.

Open Library -
Project of the Internet Archive - somewhat free e-books. Public domain and other.

Volunteer-read audiobooks. All public domain*.

Many authors have also released new books under Creative Commons licenses, but they're not easily searchable from any one location.

Al Jazeera's Creative Commons footage -
Some of the better Creative-Commons licensed documentary footage available, though of course with limited topic coverage.
Vimeo -
Video site; allows creators to apply Creative Commons licenses to their videos. You can browse CC-licensed videos from this page.

Blip -
Video site; there is CC-licensed content on here, but no easy search interface that I can find at the moment.  

You can also search YouTube including "creative commons" as part of your search words - then check the full info to see if the video is licensed. (Or look at for info on how to license, but they don't quite support the full suite of licenses.)

*For any new work, including present-day recordings of public domain music, copyright automatically exists from the time of creation. Although some creators or performers may want to relinquish all their rights, it's actually kind of legally difficult to do that - most countries, the U.S. included, automatically give some rights that creators cannot sell or give away. Several of the "public domain" resources on this list include new content, but creators on these projects usually at least intend to cede their rights.

Stuff to Help You Use This Stuff

The following free and open-source software is all stuff I use (or have fairly recently used) on my personal computer (Linux Mint), my work PC, or both. -
Completely free and open suite of office software that interoperates pretty well with Microsoft.

VLC Media Player
Audio/video player. Will play any format you throw at it.

GIMP (the Gnu Image Manipulation Program) -
Photo editor - like Photoshop, but free and legal to install on as many computers as you want! Very full-featured, slightly different interface, but if you give it a couple of days, the adjustment is easy even for a longtime Photoshop user.

A vector image editor (like CorelDraw or Illustrator). Vector art is infinitely scaleable without loss of print quality, so this is a good tool for making posters, flyers, other one-page layouts. Most clipart (including all the .SVG files on is vector art.

Audacity -
Great audio recorder, mixer, and editor.

VirtualDub -
A good stripped-down open source program for basic video editing.

Zotero -
A very full-featured citation management program that is a browser plugin for Firefox, and that integrates with MSOffice and open office suites.

If you've got any favorite open content, public domain content, or open source software resources, feel free to add in the comments! Anon commenting is okay, but I'm a slow moderator. :)

A few clarifications on Pinterest/Copyright/TOS worries

Glad a lot of people are finding my previous post about Pinterest useful and informative. A number of comments, tweets, and emails have pointed out a couple of areas that I glossed over too fast in that post, so here's a couple of additions and clarifications.

1. A couple of people have interpreted the previous post as a wholesale endorsement of (or even "advertisement for") Pinterest.

I actually haven't been using Pinterest, don't have an account on it, don't see myself using it much in the future. Not really my thing. I'm also not affiliated with Pinterest in any formal way, and I don't think I know anyone who works there.

However, I have enjoyed looking at the boards friends have put together or shared links to - if you put the legal and/or ethical issues aside (which I don't think are unique to Pinterest anyway) I think it's a great new tool for curating online content. And I think there are lots of great legal and ethical ways to use it. Which is why I care whether overblown fears stop people from using it.

2. Nope, I am not saying "Pinterest is fair use."

If you don't have much experience with copyright issues, it's really difficult to understand fair use, especially with images as your main examples. Fundamentally, fair use says it is 100% legal to make copies of other people's stuff without permission or payment - SOMETIMES. Quite certainly, some of the copies people have made on Pinterest (remember, "pinning" makes copies, which immediately raises copyright issues that just linking does not) are legal under fair use. Some of them probably are not.

If you want to know if the copies you made are legal fair uses, you should learn as much as you can about fair use*, and use your best judgment. The fearmongers and spreaders of copyFUD would have you believe that you cannot possibly understand fair use well enough to make reasonable judgments about your own uses. I think better of you than that.

If the idea that people can make legal copies without paying sounds like an artistic injustice to you, you might consider thinking about all the ways fair use enables artistic production. Collage, remix, parodies, satire, appropriation art, and even photographs that reference or incidentally copy other images - all rely on fair use.

3. Yes, some copies on Pinterest are undoubtedly legal.

You can make copies of public domain stuff (note: "public domain" does NOT mean "anything that's public online". It means "a specific class of materials in which copyright has ended, or never existed in the first place."  U.S. federal government documents are public domain; works on which copyright has expired are public domain. 

You can make copies of Creative Commons licensed works, if the license allows it and you provide credit appropriately. You may need to learn more about what kinds of copying the various licenses allow, and how to appropriately credit, to make good calls on that.

Check out my "Joys of the Public Domain/Creative Commons" posts for examples of public domain and Creative Commons image copies: Spring Flowers; Sweaters; Rail Snowplows.

You are probably also okay making copies when the owners of the images invite you to do so - however, that can be a little murky. For example, some Etsy users were not happy when Etsy enabled a pinning function throughout the site.

4. Okay, so the Terms of Service are much like other sites; why should that make anyone feel any better?

I agree that the Terms of Service read a bit intimidatingly. But you agree to terms and conditions documents like that quite literally all the time - not just online. Most retail receipts include similar terms, as do most travel and event tickets. And yet, it is incredibly rare for companies to, for example, try to require a user to indemnify them (cover litigation costs) for a lawsuit - much less to sue their own users for breaches of the terms. (It's hard to explain why such one-sided legal agreements are so prevalent in our lives without getting pretty deep into contract theory and a discussion of how many parts of the legal system don't actually work for actual people in the real world - which is a bit beyond my ken, certainly in one blog post.)

It's also not usually attractive for people who might have the right to go after individuals in a lawsuit to do so - the "deep pockets" (i.e., entities that can actually pay damages) are elsewhere. However, copyright is actually an outlier here, and individual users do get sued fairly often - so if you believe your use of Pinterest to have been heavily infringing, some concern, and/or removal of material, may be warranted.

Finally, however powerful contracts may be, they can't functionally give Party B (say, Pinterest) rights that Party A (say, an individual user) doesn't have. So even if you uploaded stuff that you didn't have a right to upload, you have not magically given Pinterest the right to sell that image. You maybe did violate the terms of service, but the point of looking at the TOSs of other social sharing sites (or reading the backs of receipts, or even standard warranties) is to show you that you do that all the time. Not violating contracts is a good idea. But if you don't know you agreed to them, or don't understand them, there's not much you can do except try to be more aware and informed in the future.

* To learn more about fair use:
University of Minnesota Copyright Site -
Stanford Fair Use Project  -
Center for Social Media's Fair Use info -
EFF's Legal Guide for Bloggers -

Pinterest, copyright, and Terms of Service

[Update, 3/13/12 - some clarifications and additions.]

There's a couple of different articles circulating about a Pinterest user regretfully deleting her Pinterest boards and/or account, because it's just illegal/unethical/morally wrong/too scary/something else. A number of my friends have shared links to these articles or others about Pinterest and legal issues, accompanied by an announcement that they, too, are deleting their Pinterest boards. This makes me sad, for a number of reasons!

  1. While the way Pinterest functions certainly raises a number of copyright issues, they're not significantly different from the issues raised by many other social sharing sites!
  2. A lot of people are talking about how scary the Pinterest terms of service are - but they are not significantly different from those of many other social sharing sites.
  3. These posts create a great deal of fear, uncertainty, and doubt about what users are "allowed" to do online - which for a lot of users, including my friends, has clearly translated to choices not to do those things. This is called a "chilling effect", and it's the whole point of spreading FUD in the first place. It's not a good thing.
  4. There are some unique characteristics of the Pinterest user community - both the fact that a lot of women are using it, and that a lot of photographers and other commercial artists are using it - that are playing into the interactions around the legal issues in some unusual ways. I'm not sure I fully understand it all, but I'm also not sure it's not actually a bit screwed up. 

I have a lot more to say about the first two things, and not much more to say about the third or fourth things right now in any useful form. The TL;DR version is the stuff above. Thought I'd help out you short-attention-span folks.

I'd also add that I've seen a couple of posts in response to these concerns that are NOT raising fear, uncertainty, and doubt, but rather legitimately engaging with the ethical and legal issues. Emily Lloyd's post was interesting; I don't entirely agree, but have had fruitful further discussion, hooray!

Copyright Issues in Social Sharing

The first article I saw about this issue was about a Pinterest user who is a lawyer. This article has REALLY BAD SUMMARIES of that user's understanding of copyright law. The post I'm seeing circulated more heavily more recently is actually the original post by the Pinterest user who is a lawyer. The copyright analysis here is not as badly done, but it is well into the realm of copyFUD (shorthand for "articles spreading Fear, Uncertainty, and Doubt re copyright and fair use".)

[Not to cast any aspersions on my fellow members of the bar - or to suggest anything specific about the experiences of the author of the original post - but it's worth noting in passing here that most lawyers graduate from law school without ever studying any copyright law.]

Pinterest does have a copyright problem - it is not totally obviously A-OK for it to operate the way it does, or for users to use it the way they have been.

The biggest copyright problem is that Pinterest makes copies of the images people "pin". It does not simply create a link to the source image, it actually makes a new copy of the image. (The new copy does link to the source from which the image was pinned, although that's not always the original source of the image.)

When you're making copies, any copies, of copyrightable material, copyright is an issue. But it does not necessarily follow that because copyright is an issue when you make copies, copyright obviously and clearly prohibits the making of those copies. Fair use is one way the law allows people to make copies without permission or payment. The above-linked posts and a lot of other copyFUD suggest that fair use is a) sketchy, b) scary, c) waaay too unpredictable/hard to understand (i.e., scary), and anyway d) never allows copying whole works (except maybe thumbnail images.)

I vehemently disagree with this characterization. While fair use is not a straightforward part of the law, and is not very predictable, it is something that the average user can come to understand, and it does allow for a lot of copying that individuals do. (Perhaps now you want to learn more about use rights in copyright?)

Fair use certainly sometimes allows for making copies of entire works, especially when sharing the whole work is necessary to facilitate commentary on the original. Even where no commentary is being made, the Supreme Court has upheld making copies of entire works as fair use.

There's another reason I think lots of pins may be legal, and it's another fundamental legal underpinning of a lot of web services: implied or express license. If you pinned something at the behest of the original creator (even if they didn't explicitly give you a formal copyright license to do so), that's very likely legal. There are a lot of websites encouraging users to pin their stuff! F'rexample: ModCloth,  Since Pinterest is so new, I'm not going to suggest that there's an implied license to pin everything that's public on the web (although that's basically the underlying legal justification of most internet search engines). But I would point out that Pinterest does allow folks to opt-out of letting their image be pinned.

If you're still feeling like fair use is scary (it's not! it's a super-cool engine of creativity, innovation, and free expression!) or too unpredictable for your tastes (fair enough), I'd remind you that there is no explicit legal reason you can print out a webpage or forward an email...

I'm not suggesting that every image every user pinned is obviously a fair use, or covered by an implied license. Lots of users clearly haven't even been aware they're making copies, much less thinking about whether fair use allows them to do so. But I do think fair use probably covers some pinning, and implied or explicit licenses cover some more. At least as much as they cover the random copying users do on Tumblr and many other web services!

Terms of Service 

The Pinterest FUD posts and articles are also highlighting elements of the Terms of Service as problems for users - particularly the indemnification clauses, the clauses where users agree that they will only upload material for which they have the right to upload, and the clauses that include a license of copyrights to Pinterest.

If you are uploading stuff to Pinterest that you don't own or otherwise have the right to distribute, you are probably violating their Terms of Service, and you may be infringing copyrights. If you are violating the TOS, they can... um... cut you off? Delete your account? They can also sue you for breach of contract, and some gung-ho prosecutor could also use a violation of the TOS to bring criminal charges against you, so although those courses of action are unlikely, it might be, you know, a good idea to try to comply with TOSs in general

Or at least, to read them?

These elements of Pinterest's TOS are common to just about ALL USER-GENERATED-CONTENT SITES' TOSs (though I'll admit that Pinterest is somewhat unique (and kinda weirdly archaic in a couple of places) in their specific language and points.) Let's take a quick look around...


Indemnity: "Subscriber will indemnify and hold Tumblr, its directors, officers and employees, harmless, including costs and attorneys' fees, from any claim or demand..."
Right to share: "Subscriber represents, warrants and agrees that it will not contribute any Subscriber Content that (a) infringes, violates or otherwise interferes with any copyright or trademark of another party [...] (c) infringes any intellectual property right of another or the privacy or publicity rights of another..."
License of copyrights: "...hereby grants and agrees to grant Tumblr a non-exclusive, worldwide, royalty-free, transferable right and license (with the right to sublicense), to use, copy, cache, publish, display, distribute, modify, create derivative works..."

Full Tumblr Terms of Service


Indemnity: " agree to defend, indemnify and hold harmless YouTube, its parent corporation, officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees)..."
Right to share: "You affirm, represent, and warrant that you own or have the necessary licenses, rights, consents, and permissions to publish Content you submit.." AND "You further agree that Content you submit to the Service will not contain third party copyrighted material, or material that is subject to other third party proprietary rights, unless you have permission from the rightful owner of the material or you are otherwise legally entitled to post the material and to grant YouTube all of the license rights granted herein."
License of copyrights: "you license to YouTube all patent, trademark, trade secret, copyright or other proprietary rights in and to such Content for publication on the Service" AND
"you hereby grant YouTube a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content..."

(Not to mention points 9 and 10, in all their caps-locked glory.)

Full YouTube Terms of Service


Indemnity: "If anyone brings a claim against us related to your actions, content or information on Facebook, you will indemnify and hold us harmless from and against all damages, losses, and expenses of any kind (including reasonable legal fees and costs) related to such claim."
Right to share: "You will not post content or take any action on Facebook that infringes or violates someone else's rights or otherwise violates the law."
License of copyrights: "For content that is covered by intellectual property rights, like photos and videos (IP content) [...] you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License)."

(Props on their use of human-readable language!) 

Full Facebook Terms of Service 

And finally, from a user agreement for uploading content onto a server the University of Minnesota Libraries hosts! (Yes, I think these are reasonable terms of use, because I was involved in drafting them! (Although I'd still simplify the language a little.))

Indemnification (sort of): "I agree that I am solely responsible for the Content and for any consequences of uploading it to the [Server] and making it publicly available..."
Right to share: "I am the sole creator and the owner of the copyrights and all other rights in the Content; or without obtaining another's permission, I have the right to deposit the Content in the [Server]" AND "The Content does not infringe the copyrights or other intellectual property rights of another, nor does the Content violate any laws or another's rights of privacy or publicity. The Content is solely my original creation or if not, those portions that are not my creation are used with the copyright holder's express permission or as permitted by law."
License of copyrights: "I grant [...] the following non-exclusive, perpetual, royalty-free, world-wide rights and licenses: to access, reproduce, distribute and publicly display the Content, in whole or in part, to secure, preserve and make it publicly available, and to make derivative works based upon the Content in order to migrate the Content to other media or formats, or to preserve its public access."

So anyway. That's my thoughts about the copyright and terms of service issues folks seem to be discussing about Pinterest. Even though it is ridiculously long, I'm sure I left out lots of things, and there are many more thinky things I'm thinking about this, but it is beyond time for me to go home and eat dinner! 

ETA: New post 3/13/12 with some clarifications and additions to this info.

Walking the walk

Heard people talking on Twitter about Dorothea Salo's presentation "I own copyright, so I pwn you!"at the Special Libraries Association conference this week, and was sorry to miss it. Now that I've seen her slides, I'm even MORE sorry. I particularly liked her "LESSONS" slides, which bring up some of the concepts that I tried to put in the "Librarian's Copyright Litany", but more action-oriented and direct. Here they are, each followed by my commentary:

presentation slide: no more Nice Librarian

"No more Nice Librarian! When copyright holders act as enemies of all we value, we need to treat them as such."

Librarians are not, generalizing broadly, the kind of people who embrace confrontation. But being "nice" has not really gotten us where we want to go, especially with regard to the increasing tensions between the library and publishing worlds.

While not every librarian needs to be an aggressive copyfighter; we do all need to be aware of the issues, and paying attention to who is on our side. It is not overblown to characterize recent actions (suing over course uses; attacking interlibrary loan) of some publishers as the actions of enemies.

presentation slide: We are not the copyright police

"We are not the copyright police! We must resist all attempts to turn us into enforcers."

I see a lot of librarians who take action to protect the copyrights of corporate content providers by telling our patrons what they cannot do. While I do appreciate that some of my colleagues are worried about protecting their patrons from lawsuits, others with whom I've talked seem to feel a moral obligation to "protect" content from users. This seems to me to be getting the values of librarianship backwards.

time to put our benjamins where our mouths are

"Time to put our benjamins where our mouths are. Open access ain't free. If we want it, time to pony up."

Yes, with our ever-declining budgets, that means ceasing to buy some of the things we currently pay for. May I suggest starting with the ones that restrict our users' rights to actually make use of them?


"We need to own our own stuff. If we don't negotiate for what we write, who will do it for us?"

Librarians do not always do a bang-up job of providing access to our own content - even in the journals we run ourselves. We need to do better on that, including changing policies of journals we run, retaining our rights as authors when we publish elsewhere, and we need to actually follow through and post our stuff in permanent locations online.

Actually, I need to do that. I cc-licensed the paper I presented at the ACRL conference, but I have not uploaded it to our institutional repository yet. Bad CopyrightLibrarian! Time to do better!

Please note: images and textual quotations in this post are courtesy of Dorothea Salo, used under a Creative Commons Attribution license. No, I did not ask her if I could use them. That would be disrespectful and a waste of both our time.
My blog writing is, as always, available under a Creative Commons Attribution-Noncommercial license.

How I Talk About Fair Use - Intro & "Breathing Space"

When & why I Talk About Fair Use

"How do we/I know what we/I can and cannot do with other people's stuff?" is one of the primary things I'm asked to talk about in trainings and other outreach and education efforts. Often, what people think they really want to know is  "What is and isn't fair use?" They also often ask me to address this (and quite frequently other copyright concepts as well) in less than an hour.

The details of fair use are pretty... detailed - and there really are no exact boundaries that you can point to! In my experience, to do anything other than scare people away from ever reusing any copyright-protected materials again, I need at least an hour (preferably more) to address all those details, and a bunch of other concepts besides. The workshops I lead here on campus for faculty members are usually scheduled for two hours, often run over, and I quite frequently get feedback suggesting that they be longer. (I don't make them longer, because how many faculty members do you know who would voluntarily sign up for a three hour workshop in anything?)

So how to productively discuss fair use in 30 minutes? 15? 10? Rather than trying to talk about the details in high-level, glossed over detail, I try instead to talk about fair use as a concept, and about why it's important to scholarship, culture, and even our daily communications with each other! In the next few posts, I'll feature some of the slides and images I use in my talks, along with brief examples of how I talk about them.

Breathing Space

A number of court opinions make reference to fair use as "breathing space" in copyright law. Talking about fair use as breathing space is a good way to introduce some of the more complex issues (flexibility/uncertainty, and 1st amendment concerns) discussed below. But it's also a good overall summary of the doctrine, and one that makes sense for a lot of people on a gut level. I usually illustrate the "breathing space" concept with this image by Stéfan.

presentation slides talking about fair use as breathing space in the law and using photograph of two Star Wars stormtrooper action figures posed to look as if they're interrogating a Wall-E action figure. Photo is titled This is not the droid we're looking for.

Stéfan's photo is called "This is not the droid we're looking for" and is available under a Creative Commons Attribution-NonCommercial-ShareAlike license.
(My blog is not SA-licensed, so I am not in full compliance with Stéfan's license. I apologize, but also think my use of the photo could be a fair use.)

This image is a good teaching tool for a number of reasons. First, it's funny and pop-cultural, which is almost always a good thing. (It's also an opportunity to bond with the Star Wars fans in the audience over an in-joke - so far, I've never not had at least one person in the audience who gets it.) Second, it's a well-executed photo, technically and conceptually - it's just an appealing image.

But most importantly for my purposes, it provides great opportunities to talk about how fair use exists in large part to deal with new and unanticipated uses, and to provide an outlet for commentary and cultural dialogue. There's a lot going on in this image - it's a silly joke, using characters from very popular movies - but it's also a witty juxtaposition of the two movies. And is there also an element of commentary on a totalitarian regime brutally oppressing a disenfranchised and abandoned manual worker? It also provides an opportunity to briefly address some elements of each of the fair use factors: is there market harm? To movie sales/licensing? To action figure sales? How "much" of the movies are being used? How central are those pieces used to the original work? And so on, and so on.

Sometimes I also use videos (usually short pieces thereof) from the inimitable PS 22 Chorus to illustrate the "breathing space" concept.

The copyright issues raised by their videos are quite densely layered, so more often we will view part of one of their videos to spark a general discussion about what kinds of uses should be tolerated in terms of cultural dialogue and participation. There are way too many great videos from the Chorus to choose just one - this one is my current favorite.

Spring Flowers! (JoPD/CC)

I haven't done a Joys of the Public Domain/Creative Commons post in a while! Today, some fleurs.

Cherry blossoms are kinda the archetypical spring flower.

black and white photo of Japanese men and women in front of a temple gate with cherry trees overhead
The Sheba Temple (likely what's now known as Zōjō-ji), by Herbert Ponting, c. 1907. The National Archives UK

hand-tinted photo of a park in Washington DC, view of the back of a man seated on a park bench, painting
Artist painting cherry blossoms along the Tidal Basin. E.B. Thompson collection, DC Public Library.

Much earlier in the spring (at least in my part of the world) there are pussywillows and forsythia

Bright yellow forsythia against dark out-of-focus background
Untitled image CC by-nc-nd yamaken

small felt dolls with pussywillow and forsythia branches embroidered on their clothes
Pussywillow and Forsythia Jan10 CC by-nc-nd Alkelda

And you really know things are warming up when the bulbs start appearing!

Lily of the valley
lily of the valley plant: white bell-shaped flowers with broad flat green leaves
lily of the valley CC by liz west

blueflowers CC by Nancy Sims

Snowdrop or spring snowflake:
snowdrop or spring snowflake - white flower with small greenish-yellow spots around rim of bell.
Close-up view of flowers at Maclay Gardens State Park: Tallahassee, Florida. State Library and Archives of Florida.

Irises (and foxglove?):
hand-tinted photo of well groomed garden with small pond, sweep of lawn, and a large number of purple and yellow irises, and purple foxglove
Sunnie-Holme. Smithsonian Institution

Diary: 22nd of March 2011 CC by-nc-nd Paul Morris

And last but certainly not least, the gorgeous tulips of the University of Minnesota's own Minnesota Landscape Arboretum!
foreground is the stems and flower heads of well-open yellow tulips, in background there are less clear dark red-purple tulips
Technicolor Tulips CC by-nd Rhonda Fleming Hayes

Happy Spring!

(I know, I know, it's already getting on toward summer. But it was snowing three weeks ago...)

Stormtroopers, Copyright, and Cultural Ownership

You may or may not have heard about the extensive saga that is George Lucas' dispute with one of the costumers/prop makers from the original Star Wars series about the copyright in Stormtrooper costumes. The prop maker has been using the molds he used to make the original props for the movies to produce and sell new Stormtrooper costume pieces for the fan costume and memorabilia market. Lucas does not like this, and wants the prop maker to stop.

It's an interesting story for copyright geeks, with some very technical wrinkles. Although the helmet designs did not originate with the prop maker, he made modifications and alterations to the design in the mold-making and casting process, so to some extent the designs are "original" to the prop maker. So who owns the design of the helmets as they came out of the mold? More fundamentally, there is a big issue as to whether a helmet is a "sculpture" (and hence copyrightable), or a utilitarian object (and hence, not ownable under UK law).

There are also some interesting international-law issues, and (although not directly applicable in the current instance of the lawsuit) some parallels to the works-for-hire/termination-of-transfers issues that are raging through the comic-book world lately (I'll probably blog about that at some point, too. Comic book copyright issues are really cool!)

Why Should I Care Who Owns Stormtrooper Designs? I'm Not A Copyright Geek or a Star Wars Fan!

Technical copyright-geekery aside, this case points up some broader public interest issues in intellectual property and popular culture. Without suggesting that George Lucas, Lucasfilm (and a bajillion other entities) don't/shouldn't have any property-like interests in their creative works, Star Wars is a great example of a creative work that has taken on a lot of additional social meaning beyond Lucas's contributions. The photos illustrating this post show just a few of the directions this property has been taken by the forces of human culture.

If Star Wars didn't have this additional meaning, there wouldn't be enough interest in Stormtrooper costumes for the prop maker to exploit! And although the cultural significance of Star Wars is certainly aided and abetted by the massive industrial content producer that is the Lucasarts empire, quite a bit of the social significance and meaning of Star Wars has only weak ties to Lucas's properties, and/or represents tremendous creativity and meaning-building outside of formal authorship and ownership structures.

crowd of stormtroopers and other Star Wars cosplayers at Indiana State Capitol building
Members of the 501st Legion at the Indiana State Capitol in 2005. Photo by Britt, 501st C3 photographer.

We All Have Our Own Stormtrooper Costumes Somewhere (not literally, although there are more than you might think...)

Two children and an adult pose in stormtrooper costumes.
Photo from the 501st Nordic Garrison site.

It's worth considering that under the first U.S. copyright term, the copyright in Episode IV (the first Star Wars movie, released in 1977) would have expired in 2005. Of course, that's not the term Episode IV was actually created or released under, and copyright law as formulated in the first U.S. copyright act would have no idea what to do with something like the Star Wars franchise. However, copyright law as formulated in early U.S. copyright acts would also have had very little conception that an individual's personal interactions with contemporary content could rise to the level of infringement.

Whether you're building a screen-accurate replica Star Wars costume for yourself (or your offspring) in your spare time or not, chances are there are elements of contemporary content with which you connect and interact on a very personal level. And since copyright ownership is so expansive, chances are many of those pieces of culture that are significant to you are legally owned by someone else, who has a legal right to stop you from doing some of the things you like to do with that content. Fair use is one part of the law that makes a little room for personal interactions with content. But since a lawsuit to establish whether a use is fair or not is very costly, most settled law around fair use reflects the interests of industrial content providers. Occasionally, industrial interests lose fair use cases anyway, often because a court has recognized a greater public interest - see Campbell v. Acuff-Rose (the "Pretty Woman" case), for example.

Judge Kozinski made some important observations in Mattel, Inc. v. MCA Records, Inc. (the "Barbie Girl" case): "Trademarks often fill in gaps in our vocabulary and add a contemporary flavor to our expressions. Once imbued with such expressive value, the trademark becomes a word in our language and assumes a role outside the bounds of trademark law." (see paragraph 9) Of course, trademark and copyright are not as similar as many people think, but the central point rings true across all intellectual property that affects culturally meaningful works - while the works are certainly products of their creators, their cultural significance is a product of larger, more public, more communal, cultural forces. Yet much of the time, the law does not recognize those public and personal forces as officially legitimate.

Expanded copyright protection may (may) have increased production of resource-intensive products like the Star Wars universe. But it also means that our culture does not legally belong to us. Something to keep in mind the next time someone starts talking about copyright "balancing" public and private interests.

(True confession: One main reason I started writing this post was to use action figure photos as illustrations. It got more reflective after I started writing.This also represents the first post on this blog where some images are being used under a fair use rationale, rather than Creative Commons licenses.)

Clearing Tracks - Rail Snow Plows (JoPD/CC)

(I have been sharing "Joys of the Public Domain" and "Treasures of the Creative Commons" on my Twitter feed for a while. They're just things (mostly pictures) that I've stumbled across and enjoyed. Expect more random collections like this in the future!)

My office window looks out over the Mississippi River bluffs; today the view is obscured by a gentle-but-blinding (5-7" expected accumulation) snowfall. Road crews across the state and the Upper Midwest are still at work digging out from a bigger storm 10 days ago, so I had snowplows on my mind as I headed to The Commons on Flickr this morning.

Since many public domain images are fairly old, the niftiest plows I found were those used to clear railway lines. Check these out:

Black & white photo of large rail plow, covered with snow, attached to two engines. Sitting on apparently-clear tracks at Warner, Alberta, Canada - 1909
Snow Plow and Alberta Railway And Irrigation Company Engines 22 And 25 At Warner, Alberta. 1909. From the Galt Museum and Archive's Collection.

Black & white photo of large rail plow at station, some snow still stuck on the blade. A person stands atop the plow. O&W line, 1880s.
O&W Snow Plow #3, circa 1880. From the Cornell University Library Collection.
(O&W apparently refers to the New York, Ontario & Western Railway.)

And most spectacularly:
Black & white photo, head-on view of rail plow charging a five-foot drift - the plow is invisible below the drift, and obscured by fountains of snow it is throwing upwards. Spectators are watching from behind a fence.
"Effect of three engines & snow plough charging a five feet drift of snow at Altnabreac, Caithness." By James Johnston. 1895. Collection of the National Archives, UK.

After exploring the public domain images for a bit, I got curious to see if the technologies have changed over time. In some ways, not so much...

The Mighty Plows - modern configurable wedge or slanted rail plows
The Mighty Plows. CC by Orin Zebest.

But in other ways...
World's Heaviest Snowplow - side-angle view of enormous aluminum-colored train engine that carries a set of huge fan-like blades in front
World's Heaviest Snowplow. CC by-nd Chuck "Caveman" Coker.

Here's another angle on one of these "rotary plow" things!
Snow eater train - head-on view of the fan-like blades of a rotary plow in a train museum
Snow eater train. CC by-sa Nelson Minar.

So much to be learned from and shared in the public domain and the Creative Commons. I'm very thankful for both!

I'm Nancy Sims, the Copyright Program Librarian at the University of Minnesota Libraries.

Though I am a lawyer as well as a librarian, no content on this blog constitutes legal advice; if you need direct advice on your legal rights or responsibilities, please consult your own attorney. This blog represents only my own opinions and not those of my employer.

I'm @CopyrightLibn on Twitter.

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