11th Circuit Rules On Georgia State Fair Use Case

The 11th Circuit Court of Appeals issued its ruling today in Cambridge University Press et. al. v. Patton - otherwise known as "the Georgia State case." This is a case in which academic publishers (Cambridge UP, Oxford UP, and Sage) sued a public university for use of excerpts from books in online e-reserves and course websites. (Lawsuits funded in part by the ostensibly-neutral Copyright Clearance Center.)

Previously, the District Court ruled that most of the uses in question were fair use. On appeal, it didn't look like things were necessarily going well for academic users. Indeed, today's ruling reverses the lower court's rulings, vacates some results of the ruling, and remands the case back to the lower court for reconsideration in light of the corrections made in today's ruling. But given the possibilities contemplated after oral arguments, (and heck, given the concurring opinion attached to this ruling) things definitely could be worse!

Excellently Good Things

  • The court's opinion confirms that the 1976 Classroom Copying Guidelines are not law, and not an appropriate lens through which to consider fair use in course contexts. (The court also affirms that even though the Guidelines are maybe informative, they were originally intended as a floor, not a ceiling, on fair use.)

    Maybe this isn't great news to the many folks who have (quite correctly) long-since abandoned applying any mental energy to the outdated Guidelines. However, I regularly encounter librarians, library workers, teachers, and other educators who have received no other information about fair use - and often, these folks have explicitly been trained that the Guidelines are the One True (and complete maximum) Way to Know Fair Use in classroom contexts. (Oddly enough, many of them have also received their only copyright training at no cost, from generous publishers...) Having an affirming court opinion to refer to that clearly refutes the applicability of the Classroom Guidelines is quite a blessing, from my perspective.

  • The court extensively discusses the public purpose of copyright law. Section B of the opinion (page 46-55) is a masterfully written, quite clear overview of the theoretical underpinnings of U.S. copyright law in general, and of fair use in particular. (I think it's a bit weaker in the second half, but pages 46-50 are really darn good reading.)

    The idea that creator remuneration is -secondary- to the actual purpose of copyright law is often left out of a lot of related public discourse. Most artists (and most lawyers I've met who represent artists or corporate creators) would put creator remuneration at the center of copyright. But this opinion (quoting from many, many other opinions) affirms again that "[p]romoting the creation and dissemination of ideas has been the goal" since the Statute of Anne, and that this is because the creation and dissemination of ideas is a public good. Moreover, the court affirms that "[t]he fair use doctrine also critically limits the scope of the monopoly granted to authors under the Copyright Act in order to promote the public benefit copyright is intended to achieve." 
  • The court agreed that case-by-case, or work-by-work is the appropriate approach to fair use. Since the alternative the Plaintiffs were arguing for was that "a nebulous cloud of infringements purportedly caused by GSU's 'ongoing practices'" were the correct form of inquiry, all institutions that rely on fair use in daily practice got off well here.

  • The court agreed that non-profit educational purposes are especially valuable under fair use law. "Congress devoted extensive effort to ensure that fair use would allow for educational copying under the proper circumstances and was sufficiently determined to achieve this goal that it amended the text of the statute at the eleventh hour in order to expressly state it."

  • The court affirmed that relevance to a pedagogical goal -is- relevant to fair use. (p. 86) (Plaintiffs had argued relevance to purpose was only relevant for transformative, parodic uses.)

  • The court disapproved of Judge Evans' blanket 10%-or-one-chapter rule. While avoiding bright line rules does make life more difficult for end-users, this was a bright line very few people were comfortable with; it limits other interplays such as relevance to pedagogical purpose.

  • The court would not consider the argument (apparently raised late in the deliberations of the District Court) that the correct frame of reference for measuring the "amount" of the work being used was a single chapter, rather than the whole book. Since the Plaintiffs primarily went along with arguments about how to determine the number of pages in the book, in order to determine how much of the book each chapter was, the court agreed that the discussion had to be had in terms of how much of the book each chapter was, not how much of the chapter.

    Something to remember for your litigation practice, law students. Raise it too late, and the argument's gone.

  • In addition to rejecting the applicability of the Classroom Copying Guidelines, the court also rejected the coursepack copying cases as binding authority, or apparently even as very persuasive. They're vaguely acknowledged, but not followed.

  • The court soundly rejects the idea that excerpts from books substitute for sales of the -actual books-. (p. 94) Unfortunately but unsurprisingly, it then goes on to confirm that unlicensed excerpts do substitute for sales of licenses-to-excerpt. But, also happily, it does affirm that "the ability to license does not demand a finding against fair use." (p. 95)

Not-Surprising Things


  • Section B of the opinion is, as I said, a masterful overview of the theoretical underpinnings of U.S. copyright law. Since we frame our law as deeply tied to economic incentives for authors to create, it's not surprising that this section has extensive discussion of how allowing too much "unpaid copying" will harm the economic incentives, and thus result in an outcome that doesn't further the public good of ongoing development of new knowledge and ideas.

    Two things bother me about the focus on economic incentives - but these things bother me about U.S. copyright theory in general, not this opinion in particular. The first is that this discussion completely fails to acknowledge the many other incentives creators have for creating. In particular, in academic contexts, creators fairly -rarely- receive direct economic benefits for their copyright ownership; its not entirely absent, but definitely a peripheral motive. But even outside academia, there are a lot of other reasons people create.

    The other thing that bothers me about the focus on economic incentives is that market models don't actually reflect reality. I could get into deep critique of Coase or whatever, but this is a blog, and it's Friday night, and also, there are reasons I didn't go into economics full time. However, even the court in this opinion fully acknowledges that we have to do away with a lot of reality to delve much into fair use and economic incentives: "in making fair use determinations, we must conjure up a hypothetical, perfect market for the work in question, consisting of the whole universe of those who might buy it, in which everyone involved has perfect knowledge of the value of the work to its author and to potential buyers, and excluding for the moment any potential fair uses of the work. Then, keeping in mind the purposes animating copyright law--the fostering of learning and the creation of new works--we must determine how much of that value the implied licensee-fair users can capture before the value of the remaining market is so diminished that it no longer makes economic sense for the author--or a subsequent holder of the copyright--to propagate the work in the first place." (p. 51) (emphasis mine)

  • The court affirmed that course readings are not transformative use. Although I respect the acumen of my colleagues who have argued otherwise, this has always seemed fairly straightforward to me. I am heartened that the court -also- affirmed that transformative purpose is NOT required to find that the "purpose" factor favors the user.

  • The court found that Judge Evans erred in making a blanket determination that the works copied were primarily "factual". You have to look at each work individually, and determining the specific balance within a work is a pretty fine job. (The court also said, though, that this factor is not particularly important in the specific fair use analysis at hand.)

  • The Appeals court held that availability of licenses to digitally excerpt a work was correctly determined by the District Court to affect whether there was market harm.

  • Some of the additional considerations that Judge Evans entertained outside of the "four factors" analysis were held to more properly belong within it. (pp. 106-110)

Weird Things


  • There is a weird element of Section B, where the court describes fair use as an "implied-by-law" license that creators grant in return for the grant of monopoly rights through copyright. While I'm familiar with framing fair use as a quid pro quo for protection most of the time, the framing of it as an "implied license" feels very strange.

  • There's a mildly terrifying digression on pp. 67-70 into whether indirect benefits to a non-profit educational user can obviate their non-profit educational purpose (or at least counterweight it.) Thankfully, the court eventually concludes that "If this analysis were
    persuasive, no use could qualify as "nonprofit" under the first factor. Moreover, if
    the use is a fair use, then the copyright owner is not entitled to charge for the use,
    and there is no "customary price" to be paid in the first place."

    However, the court goes on to entertain, and answer in the negative, questions about whether GSU gained reputational benefits from its course copying. If these indirect reputational benefits undercut a non-profit educational purpose, it raises all kinds of odd issues for fair use in contexts like conference presentations! I'm going to think more about this (and do more research into the lines of fair use cases about indirect, noneconomic benefits.)

  • The court observed that industry "best practices" are "not relevant to individualized fair use analysis". That could be a bad thing, because sometimes industry practices are all we have to go on to determine fair use. But it was a fairly glossed-over discussion, and they may have meant just that individual circumstances of a specific use case are more important than overall best practices...

Things I Don't Like


  • The court's emphasis on how important market harm is, and the subtle and nuanced interplay of the four factors is not at all unexpected. I'm not a fan of their holding that, because they are not transformative, the uses in question are highly likely to be market-substitutions, and thus that the market harm factor is especially important. This, too, though, is not unexpected.

    The thing I really don't like is that the court's emphasis on subtle interplays, and especially on the extra weighting of the fourth factor, creates some incredible barriers for the people who actually have to make fair use determinations about course readings - instructors! By placing additional weight on market harm - a factor about which end users have almost no information - the court is creating major difficulties for end users. It would be hard, but not impossible, for many instructors to find out if a license is available. It's really quite out of the question for individual instructors to correctly hypothesize -future- directions of the market...

    I might be less frustrated by this if the court were not quite so emphatic in its embrace of the importance and value of educational fair use elsewhere: "allowing latitude for educational fair use promotes the goals of copyright." Teachers, definitely use fair use sometimes! Just, do so while having sophisticated business analysis skills for companies about which you have no data!"

    [Edit: Please note, my suggestion that nuance creates challenges for end-users does NOT mean that I think "everyone should just pay for everything" is a remotely reasonable or workable alternative. Nuance is at the heart of fair use, and end users can deal with a lot of uncertainty. Just, particularly when its about information end-users -don't have-, it's problematic.]

  • My frustration in the bullet immediately above is also reflective of another broad-scale problem with current copyright laws. They were drafted for a time when, in order to commit infringement on a scale that was noticeable by copyright holders, one more or less had to have some level of industrial-scale resources. It may have been reasonable then to expect that potential fair users could engage in a complex, intertwined, nuanced and even sort of iterative fair use analysis (though query whether courts -did-, in the '70s). But today, users at a much smaller and more individual scale are the target of infringement lawsuits, and if the statutes haven't been updated, legal analyses could at least take that into account.

    Judge Evans' decision in the District Court, while taking some unusual tacks, was in some ways more on track to provide clarity to the actual individuals who have to make assessments about fair use in instructional contexts. The 11th Circuit opinion takes us (and her, my goodness I don't envy the review on remand) further away from that.

    But perhaps legislative reform is a more appropriate path for developing clarity for end-users. (Ha! I crack myself up.)

  • I sort of feel like factor 1 either intertwines with factor 4, -or- factor 3, but both? Really?? (p. 82)

  • Oh, wait, almost forgot. I don't like that this opinion reverses the lower court's opinion. It would've been nice to have a stronger affirmation of educational fair use. Further legal opinions (if they come) are likely to range from a lot to a bit more limiting. But that's not 100% clear, and they may not come.
Judge Vinson's concurrence is a really nice thing to read -after- the opinion, if you are someone who favors educational fair use. Things could have gone much, much worse. (Non-legal-beagles: a concurrence means (in this instance, at least) that Judge Vinson agrees on overturning the District Court's opinion, and vacating its orders, and remanding the case for further consideration. He just thinks those are the correct course of action for wholly different reasons; i.e., he seems 100% certain that GSU should be paying for ALL COPIES OF EVERYTHING.)

It is difficult to predict what will happen next. This is not a slam-dunk case for the publishers, though it does favor them more than the first District Court opinion. Remand and review will require a great deal of time and resources, again, and the parties may feel that it's not worth that investment, and settle. If so, we won't get more rulings from courts. If they don't settle, we'll get another District Court ruling, different from, but perhaps not entirely overturning, the previous one. And perhaps another appeal after that, and...

In the meantime, it may also be worth remembering that none of this legal interpretation is binding law outside of the 11th Circuit (Alabama, Florida, Georgia.) In other states, we can look to these opinions for guidance, but we can also explore different paths.




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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!

Food:

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)

RefreshmentsonOceanCruise.jpg
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

Chemistry/Science!:

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.)

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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!)
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A poor "translation" of a critique

I shared this Tumblr post earlier tonight as an example of the cutting cultural critique that media fandom produces internally:

SterekCritique.PNG(Edit: the original source of this post is http://thominos.tumblr.com/post/98330131513/tw-were-trying-to-let-sterek-die-sterek-fandom; I first encountered it, and screencapped it at
http://jerakeenc.tumblr.com/post/98336801735/tw-were-trying-to-let-sterek-die-sterek-fandom

(which appears to have added the "the anti-marketing legend" tag.) The source link formatting was unclear when I originally posted.)

As I said at the time, I couldn't figure out how, in the Twitter context, to make it comprehensible to the kind of people who dismiss Tumblr and fans. But then several different people asked for further explanation anyway. Here's my -admittedly poor- attempt:

TW here is a shorthand for "creators/producers of the Teen Wolf tv show". Sterek fandom is fans who enjoy positing a romantic/sexual relationship between two male characters (Stiles & Derek, hence "Sterek") that is not canonically part of the show.

So in this post, a fan is acknowledging that the producers are increasingly uncomfortable with the noncanonical gay relationship that is popular among fans (although the producers have in the past quite openly encouraged fan interest in the "Sterek" relationship while carefully ensuring it's never more than subtext in the show), and have suggested that they would like fans to knock it off - "Trying to let Sterek die". The writer paraphrases the attitudes of the entire group of Sterek fans as laughing dismissal - "lol fine", and then suggests that if the show is edited to reduce focus on the characters so many fans enjoy, they'll stop watching the show altogether, but continue writing, drawing, and otherwise producing fan-generated content focusing on the parts of the show they have found compelling in the past - "shipping Sterek".* Finally, the writer suggests the producers may not have anticipated the fact that fans of the show aren't particularly concerned with what the producers want them to like about the show - "no wait".

Fans are well aware of the close relationship between the meanings consumers create by consuming media, and the long-term success of the media source itself. And fans are also well aware that corporate creators tend to ignore or deny that relationship, or try to manage it in unrealistic ways.

*Incidentally, many fans of this show have been actively critical of the show's treatment of its nonwhite and female characters, and its waffling attitude towards normalizing gay characters  (as well as apparently** overall shoddy plotting and continuity) but watch it anyway because of the parts they find compelling. Active critique of source content isn't uncommon among fans.

**I don't watch the show. I'm fascinated by the depth and creativity of cultural critique that fans produce via fan-created media, so I spend time reading the Tumblrs of people I've found in the past to be insightful or entertaining or just good at link-sharing (Edit: or, I confess, who share a lot of cute animal pictures.) Though critique is not always the main mode of fan interaction, it is often present, if sometimes subtextually, even in everyday conversations.

What I've entirely failed to capture in this "translation" is the humor of the original.

Edit: OMG, if you're not familiar with critique & study of fan culture (& that journal is just one among many sources!), please accept that none of these observations are new or original to me!

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Contracts & Copyright (II) - Limits Beyond the Law

In yesterday's post, I laid out some basic principles of copyright and contract law, and started to outline some of the complicated implications of them. Here's an expansion on one of those areas:

contracts can prevent you from doing things that copyright would normally allow you to do

Edison_Eula_closeup-byncnd-fouroboros.png
Edison Eula closeup CC BY-NC-ND Fouro Boros
If only Thomas Edison had figured out that "taking action to agree" thing, we could've had EULA's nearly a century earlier!
This is 100% clear when you actually negotiate and agree to a contract about how you will use something. This is also pretty darn clear for licenses to which you agree with some conscious action (like clicking "I agree" or opening shrinkwrap) even if you didn't read the terms of the contract. Most courts will happily enforce those contracts.

Most US courts will happily enforce almost -any- contractual terms that are not illegal, or so incredibly unfair or morally reprehensible as to be "void as against public policy". You can (and almost certainly do, on a daily basis) contract away your right to take someone to court - often by agreeing to "binding arbitration" instead. Courts frequently enforce arbitration clauses.

Examples of limitations on your use - copyright-wise - that I'm fairly certain many of you have already agreed to (I've agreed to one of them, but not the other):

  • Got iTunes? You've agreed that "(i) You shall be authorized to use iTunes Products only for personal, noncommercial use." Copyright law allows you to use things for commercial purposes without permission if your use is a fair use, but it's a violation of your iTunes contract to use those materials for a commercial fair use.
  • Got Netflix? You've agreed that "THE NUMBER OF DEVICES ON WHICH YOU MAY SIMULTANEOUSLY WATCH IS LIMITED." Watching movies in your own home does not actually implicate copyright law (unless you are doing some very weird movie-watching). So as far as copyright goes, you can watch as many things as you want on as many devices as you want, forever and ever and always. But Netflix gets to set a limit for you, and trying to exceed that can violate your contract. 

A couple of people have asked me "can you point to case law where a court said a contract could limit use of public domain materials?"  This was mostly in discussions about limitations archives and museums (or electronic database vendors) impose on use of older materials in which the copyright has expired - and I am not familiar with a case specifically on those facts.

However, I'm familiar with the ProCD case, in which the Seventh Circuit upheld a clickthrough license that limited use of a phone database. They specifically confirmed that the phone database was not covered by copyright, but that commercial use was prevented by the contract. Most discussions of the case focus on the court's interpretation of whether the clickthrough license was enforceable, but the copyright ruling is also pretty clear. (Though the ProCD opinion did say that the contract terms weren't preempted by copyright because they didn't overlap with copyright rights, and I don't know if that's been cleared up since, and is it clear yet that I don't have Lexis or Westlaw access?)

"So what?" you say, "Apple's not going to sue me for breach of contract!"

Nope, but they could choose to terminate your account.

More on that, and on contracts that you did not personally agree to - sometime in the next few days.

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Contracts & Copyright

This post is spurred by a number of conversations I've had recently with close friends and more distant acquaintances, about use and/or publication of archival materials, and materials from subscription databases. Rick Anderson's thoughtful "Asserting Rights We Don't Have" post, which was published in the midst of these discussions, was also a contributing factor to this post.

None of this is new. Peter Hirtle points out in the comments to Rick's piece that he's been having this conversation with the archival community for quite some time. Other people link to some related scholarship in those comments. Kenny Crews has done related research and outreach to the libraries and archives community. So have I. But there seems to be a lot of attention swirling around this from the -user- side right now (which is great! This is a constituency that needs to be paying attention -and- needs to have attention paid to it!)

As far as I can tell, Rick's post is 100% correct in the statements he makes about law. But it's maybe worth pulling some of those points out into very concrete form:

  1. Owning a physical object does not automatically convey ownership of any copyrights that may be related to that object. You buy a book; you do not own the copyright in that book. A museum owns a painting; they do not necessarily own the copyright in that painting.
    It's possible to -get- the copyrights related to an object when you acquire the object - but they do have to be explicitly addressed for that to happen.
  2. When a work is in the public domain (i.e., the copyright in that work is over, or did not exist in the first place), we often say "no one owns it". Sometimes "everyone owns it" is a more useful way of looking at things. 
  3. Making an accurate reproduction of an existing work (e.g., scanning an existing painting) does not create a new copyright, under U.S. law.  When a reproduction of an existing work contains new creative expression, that -can- create a new copyright in the new work.
    Corollary: there is no copyright in accurate reproductions of public domain works, unless there is also additional new creative expression. 
  4. It's impossible to grant copyright permissions, to transfer the copyright, to grant a license, OR to make fair use of a work that is in the public domain. Because all of those require the existence of copyright, and with a public domain work, there isn't one.
  5. Contracts are legally binding documents, especially where you had the option to read & negotiate terms, and/or took action indicating agreement with the terms.
    Relatedly: other people, like employees or institutions with which you are affiliated, can often agree to contracts on your behalf.
    Also: Little bits of text at the bottom of a webpage, and terms of use that you never agree to (i.e., 'browsewrap' licenses) are rarely binding contracts.
  6. Violating a contract generally poses risks to the ongoing relationship with the other contracting parties, and can present the risk of a lawsuit.
  7. Controlling access to a unique or rare object can create an opportunity to impose contractual limitations as a condition of access to that object. 
  8. Employers generally own the copyright in works created by employees as part of their job.
  9. In the United States, there is almost no statutory law on attribution, citation, or credit.
This isn't that complicated a list of legal issues, but they way they interact and intertwine - and much more importantly, the cultural expectations of various groups of people who interact around them - lead to a whole -slew- of complicated implications for the practices of archivists, researchers, artists, photographers, subscription content vendors, libraryfolk, and other people who have anything to do with any of the aforementioned groups.

A few basic implications:

  • If you (or someone who is authorized to do so on your behalf) agree to conditions of access to a particular resource or set of resources, there may be contractual limits on your use of those resources separate from those imposed by copyright - you may need permission to use them, or only be able to use them in certain ways, even if they are in the public domain!
  • If you have access to public domain content in a way that is not governed by a binding contract, no one else has any say* in how you use that content.
  • It is impossible to grant a Creative Commons license on a work that is in the public domain. (CC0 is a very useful legal tool when jurisdictions differ on public domain status, because it does not assume copyright exists in the work - it's more like "to the extent there -is- any copyright, I don't want it.")
I started trying to write about all those implications in a single post, and it got too TL;DR even for me. I'll try to break them down in a series of posts in the next few days.

*okay, okay, rights of publicity, privacy, etc may still be relevant. Also, people who control your use for other reasons (e.g., publishers , employers) may still impose limits or requirements. Bleh.
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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.

Ethics:

NICE.png

[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.]

Commentary:
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:


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.]

Commentary:

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!"


yesandno.png

[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. ]

Commentary:
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.)

Orphans


orphan.png
[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.]

Commentary:

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


fairuse.png

gain.png

[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.

Probably
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.)

Commentary:

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 Posters.com 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



ownwork.png


[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.

TL; DR
 
click to embiggen
PictureTLDR.png


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.
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Joys of the Public Domain: Beating Summer Heat

It's not terribly hot (or sunny at all) here today, but I found an old photo of my brother and I having a water fight recently, so I've been thinking about ways people stay cool in summer!
(Edited to fix links; clicking on any picture should now take you to the full size version of record!)

In (or near) fountains:

toddler wearing bikini in park fountain
Little swimmer. Photo: Gerald R. Massie. Ca. 1955. Missouri State Archives.

A young woman and two children sit with their feet in a park fountain while the woman dips a baby in the water
Cooling Off In One Of The Fountains Around The Philadelphia Museum Of Art, August 1973. Photo: Dick Swanson for Project DOCUMERICA. US National Archives.

a young man in a suit jacket runs his head under a drinking fountain in a park with two grinning friends looking on
Cooling his head - N.Y. on hot day. Photog unknown; Bain News Service. ca 1910-1915. Library of Congress.

young man in denim shirt and trousers sitting beside a fountain with a large transistor radio on the ground next to him and a headphone in one ear
At the Tyler Davidson Fountain, in Fountain Square Downtown Cincinnati's Popular Public Plaza, a Young Man Listens to the Radio with One Ear, Play of the Water with the Other 08/1973. Photo: Tom Hubbard for Project DOCUMERICA. US National Archives.

With ice:

old silver-tone print showing crowd of children and teens surrounding a wooden cart with a large thick box full of ice on top
Halfpenny Ices. From 'Street Life in London', 1877, by John Thomson and Adolphe Smith. LSE Library.

crowd of men and boys before a storefront watch a vendor chipping ice from a large block
Scraped Ice Seller on Hot Day. Photog unknown; Bain News Service. ca. 1910-1915. Library of Congress.

several boys bend at the waist to lick large blocks of ice in the street before a storefront
Licking Blocks of Ice on Hot Day. Photog unknown; Bain News Service. ca. 1910-1915. Library of Congress.

several women sitting outdoors smile for the camera as they hold palm-size chunks of ice to their mouths
Cooling down with an ice block under summer skies in New Zealand. George Silk. June, 1942. Collection of the Australian War Memorial.

And with lots of other water sources:

two young girls with their dresses tucked up wade in a deep pond to reach a toy sailboat
Two young girls reaching for a toy sailboat, Seattle, Washington. Vern C. Gorst. ca. 1929-1932. University of Washington Libraries. Digital Collections .

three young girls in white dresses under large trees that are flooded with water.  One of the girls sits on a swing while another pushes her over the water
Blue gums. Photog unknown. Ca. 1900. Powerhouse Museum Collection.

Several children  stand atop a concrete play structure while others below splash them with water
Public Playground on the Charles River, near Soldiers Field Road 06/1973. Ernst Halberstadt for Project DOCUMERICA. US National Archives.

a toddler in crisp white dress holds a running hose in a  garden
Toddler playing with a hose in a garden. Fassifern, Queensland, Australia. Ca. 1912. Photog unknown; State Library of Queensland.

young woman wearing large sunglasses and rolled up pants sits atop a metal culvert dipping her feet in the river running through it
Leakey Resident Cooling Her Feet in the Rio Frio, 07/1972. Marc St. Gil for Project DOCUMERICA. US National Archives.

And my favorite, just for how much fun they're having:

two girls in shorts and shirts carry two other girls piggyback as they all smile in front of a fire hydrant flooding the street
Youngsters Cool Off With Fire Hydrant Water On Chicago's South Side In The Woodlawn Community, 06/1973. John H. White for Project DOCUMERICA. US National Archives.

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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 http://langwitches.org/blog/2014/06/10/copyright-flowchart-can-i-use-it-yes-no-if-this-then/

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.)

GOOD PARTS

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.)

Langwitches-CCsection.png

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.

Langwitches-flow.png

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

IFFY PARTS

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.

Langwitches-Copyright-Footer-Top.png

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."

Comments
  • 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! 

Langwitches-Copyright-Footer-Left.png

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."

Comments:

  • 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.
Langwitches-Copyright-Footer-CL.png

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."

Comments:
  • 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.

Langwitches-Copyright-Footer-CR.png

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

Comments:

  • 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. 

Langwitches-Copyright-Footer-Right.png

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."

Comments:

  • 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

Langwitches-Headerbit.png

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. ยง 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 work...is 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".

INCORRECT PART HUGE

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.)

Langwitches-FairUse-Points.png

  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

Langwitches-Copyright-Flowchart-TLDRNotes.png

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?
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Seriously?

Something is wrong with your organization if you want a letter that includes the following language:

"...we cannot give you "permission" or "approve" your use; permission is not ours to give. Some uses may be allowed as fair uses, or under other copyright exceptions. It is your responsibility to assure that your use of the materials is permitted under applicable law. We cannot and will not bear any responsibility or liability for your use of the materials. However, we also have no objections to your use."


Literally, this letter is saying NOTHING. And yet, I send several of these a year.
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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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Recent Comments

  • Dan Donnelly: I thought I'd lost interest in fair use matters but read more
  • jasonroy: Thank you so much for your thoughtful analysis and summary. read more
  • nasims: Thanks for the suggestions, these are great. And I wasn't read more
  • pbh6@cornell.edu: Two resources for free images and text: Shared Shelf Commons: read more
  • nasims: Thanks! I like the disclaimer at font play - it's read more
  • elloyd74@gmail.com: Nice round-up! Two additional sources I use: FontPlay has a read more
  • nasims: Hi Mitch, You're kind of conflating a lot of separate read more
  • admin@mitchlabuda.com: "Fair use certainly sometimes allows for making copies of entire read more
  • nasims: Hi, @ms.deviantlibrarian, Yep, there's certainly a lot of misconceptions and read more
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