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?
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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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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.

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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.

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Joys of the Public Domain: Getcher "Lean In" Images Here!

I'm deeply ambivalent about the whole "Lean In" thing. Much less so about the very cool "Lean In Collection" from Getty Images, which aims to create stock photography that doesn't reinscribe stereotypes.

However, you do still have to pay for/license uses of the Getty Images. This morning I was showing someone how to search the cultural institution "Commons" collections on Flickr, and discovered to my delight that searching for the word "scientist" returns PILES of historical images of women in science (many from the Smithsonian) - all of which have "No Known Copyright Restrictions"!

Here's a few of my favorites - do click through to the full image files to read the fascinating stories of these scientists!

First, this delightful series of portraits of Norwegian zoologist Kristine Bonnevie:
PortrettavKristineBonneviesomung.jpg PortrettavKristineBonnevie-middle.jpg PortrettavKristineBonnevie-older.jpg
Portrett av Kristine Bonnevie som ung, Portrett av Kristine Bonnevie, and Portrett av Kristine Bonnevie - all courtesy Nasjonalbiblioteket / National Library of Norway

Also quite liked the caught-in-motion feeling of this snapshot of marine biologist Cornelia Maria Clapp
Cornelia Maria Clapp (1849-1934), courtesy Smithsonian Institution

But there are so many nifty portraits in here, that I decided to focus on pictures of the scientists -at work-. Which is still tons & tons of pictures.

Archaeologist Anne Stine Moe Ingstad (1918-1997). Created by National Geographic Society, courtesy Smithsonian Institution.

Geneticist Anna Chao Pai (b. 1935). Photographer: Ted Burrows. Courtesy Smithsonian Institution.

Botanist/mycologist Alma Whiffen Barksdale (1916-1981). Courtesy Smithsonian Institution.

Polymer chemist Jeanne Helen Osiecki (b. 1926). Courtesy Smithsonian Institution.

Astrophysicist Cecilia Helena Payne Gaposchkin (1900-1979).
Courtesy Smithsonian Institution.

Plant pathologist Ruth Colvin Starrett McGuire (1893-1950). Photographed by
United States Dept. of Agriculture, courtesy Smithsonian Institution.

Archaeologist Bertha Parker Pallan [Cody] (1907-1978). Courtesy Smithsonian Institution.

Biologist Gertrude Van Wagenen (1893-1978). Courtesy Smithsonian Institution.

Botanist Mary Agnes Chase (1869-1963), sitting at desk with specimens. Courtesy Smithsonian Institution.

Astronomer Muriel E. Mussells Seyfert (b. 1909).Courtesy Smithsonian Institution.

Biologist Mary Alice McWhinnie (1922-1980).  Courtesy Smithsonian Institution.

Biochemist/bacteriologist Ruby Hirose. Courtesy Smithsonian Institution.

Anthropologist Frederica Annis Lopez de Leo de Laguna (1906-2004), standing and talking at meeting with Kaj Birket-Smith (1893-1977). Photographer: Fremont Davis. Courtesy Smithsonian Institution.

Chemist Jane Blankenship Gibson. Courtesy Smithsonian Institution.

Crystallographer Dorita Anne Norton (1931-1972). Photographer: Don Glena. Courtesy Smithsonian Institution.

Experimental physicist Chien-shiung Wu (1912-1997), in 1963. Courtesy Smithsonian Institution.

Geologist Dr Beryl Nashar, 1955. Courtesy State Library of New South Wales.

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Spring 2014 Copyright Workshops open for signup!

Upcoming workshop sessions at the University of Minnesota. Non-UMN folks are welcome, but please check in with the instructor first (especially for the online sessions)!

Copyright In The Classroom (and Online)
Can you show a movie in class? Can you distribute copies of a newspaper article? What are you allowed to post on your Moodle site, anyway? What about your students' work, or their online postings? This workshop focuses on copyright issues in the classroom, and in teaching online. Learn how the library can help you with electronic reserves and links to subscription materials. No direct legal advice will be provided; this workshop is informational in nature.
Primarily intended for individuals currently teaching at the University. NOT eligible for RCR continuing education credit.

Monday, March 24, 2014
10:00 am - 12:00 pm
Magrath Library Instruction Room (Room 81)

Thursday, March 27, 2014
2:00 pm - 4:00 pm
S30A Wilson Library

Monday, April 21, 2014
1:00 pm - 3:00 pm
Online-only interactive session

Know Your Rights: Copyright Essentials for Authors and Creators
How many copyrights do you own? How long will they last? Can you post your paper online? Can someone else quote from your paper in their own? This workshop will provide a solid grounding in some of the elements of copyright law that are essential to scholarship, teaching, and research. Learn more about protections in the law for educators, and about your rights as an author or creator. Discuss and debate with your peers about some of the burning questions in the field, and enjoy exploring some entertaining and thought-provoking examples. No direct legal advice will be provided; this workshop is informational and educational in nature.

Primarily intended for faculty, researchers, and graduate students engaged in the scholarly writing & publishing process. Satisfies RCR continuing education awareness/discussion requirements.

Thursday, April 10, 2014
10:00 am - 12:00 pm
310 Walter Library

Friday, April 11, 2014
10:00 am - 12:00 pm
Online-only interactive session

Wednesday, April 16, 2014
1:00 pm - 3:00 pm
Magrath Library Instruction Room (Room 81)

Can I Use That?: Dealing with Copyright in Everyday Life
Quotation, criticism, review, collage, parody - Copyright presents some big challenges in all of these situations! Participants in this workshop will develop an understanding of the complexities of copyright by exploring examples from visual arts, music, and video, as well as academic research and writing. Expect to think hard, discuss a little, and have fun! No direct legal advice will be provided; this workshop is informational in nature.

Primarily intended for faculty, researchers, and graduate students engaged in the scholarly writing & publishing process. Satisfies RCR continuing education awareness/discussion requirements.

Monday, April 14, 2014
10:00 am - 12:00 pm
Magrath Library Instruction Room (Room 81)

Thursday, April 17, 2014
2:00 pm - 4:00 pm
310 Walter Library

Wednesday, April 30, 2014
10:00 am - 12:00 pm
Online-only interactive session
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Where copyrights come from (part I) - Copyediting does -not- create a new copyright

In US law, copyright magically comes into existence when someone creates an original work of authorship. The copyright is actually based in the original expression contained in the work, not whether there was effort involved in the work's creation. So for the specific arrangement of words (+/- images) that make up a particular journal article, there is definitely a copyright in the final (post-review) manuscript - but subsequent changes that do not substantially alter the expression in that manuscript do not themselves create a new copyright.

So when an author transfers the copyright "to an article", they unquestionably transfer the copyright in the final manuscript -and- the copyedited, typeset version of that manuscript. The original expression in those two versions of the article is -one and the same-, and thus, so is the copyright. 

I have personally gotten pushback on this point, and seen public disagreements on this point, from both authors and publishers. The substance of publishers' disagreement has usually focused on the value that they add to the author's contribution - but the absence of a copyright in a particular product or activity does not equate to an absence of value. Copyrightability is not a commentary on value, it's reflective of -original expression-. Publishers add value (varying amounts, depending on publisher, sometimes) through managing peer review, copyediting, typesetting, and other services - but unless they contribute significantly different and new authorial expression, these valuable services don't have any relation to copyright.

Most of the authors I've seen contesting the idea that the copyright in a final manuscript and the typeset published article is the same, on the other hand, have had a different disagreement - they're pretty sure they're allowed to post their final manuscript online, but that the typeset version is in the exclusive purview of the publisher. In many cases this is a true statement, but not because those different versions of the article present different copyrights, with the copyright in the manuscript belonging to the author and the copyright in the typeset version belonging to the publisher. Authors who have transferred their full copyright to their publisher are often allowed to post final manuscript versions - or sometimes, pre-peer-review manuscript versions - by publisher policy, or by a specific clause in the publication agreement. 

Where neither publisher policy nor any extra publication contract clauses allow posting manuscript versions of an article, authors who have transferred away their copyrights do not have the right to post those versions. (Except to the extent that any other non-owner individual might have the right to copy or post the article, fair use or otherwise.)

This seems to be a controversial statement to many people who read Kevin Smith's blog post last week (which was itself partially in response to the surprise of authors who've received takedown notices about self-posted copies of articles in the last few months.) I said on Twitter, and say here again, that there seems to be an element of wishful thinking in this 'controversy' from authors who have not been paying much attention to their publication contracts until recently (or at all.) If the manuscript and the typeset version of the article are different copyrights, then they haven't been transferring -tons of control over their works- to publishers.

But if that's true, there's no reason for SHERPA/RoMEO to exist. There's no reason several authors I've talked with have received quotes for the permissions fees needed to include their own previously published works in (newly typeset) retrospective volumes. There's no reason why, when an author wants to re-use a figure from an earlier publication, most publishers require authors to get permission from the publisher of the earlier publication.

The details of publication contracts matter

(While I love the resources that library folk at UMN and elsewhere have developed to help academic authors understand what they own and what publication contracts do, I also encourage authors to consider some of the resources available for/by freelancers who work on other aspects of content production. From certain perspectives, academic authors look a lot like freelancers producing content for publishers. Katie Lane at Work Made For Hire has some eminently readable, and relevant, stuff - check out points 2 and 3 of this post on contracts, for example.)


Obviously, this post is a response to the response to Kevin Smith's piece from last week in which he addressed longstanding confusion around copyright in different versions of a published article, and in what kinds of things authors can do with different versions of their articles. I had a really interesting exchange on Twitter this morning with Charles Oppenheim, who wrote a detailed response to Kevin's post, arguing that Kevin is incorrect. I still agree overall with Kevin's analysis, which he clarified in another post today - but I do agree that at some point, different versions of a work can be legally separate entities. I'm not sure that point is where Charles thinks it is - that is, I'm not sure that the pre-review draft has a separate copyright than the version that contains post-review edits (in his article, he uses the useful shorthand of "D" for draft, and "F" for final manuscript.) If the pre-review draft has a separate copyright, why do some publisher self-archiving policies distinguish what can be done with "D" and "F" (subsequent to a transfer of "the copyright" in an article)?

I think the disagreements of these thoughtful commentators really lodge in the nuances of rights in works developed over time, through major revision. If copyright arises at the "moment" of creation, what are the relevant moments? In law school, I had a computer that shut down unpredictably, so I developed a "Ctrl-s" reflex. I'm pretty sure there are not 693 different copyrights in my 3L independent study paper, but I'm also pretty sure that some of my drafts contained entirely unrelated expression (yay starting over partway through) and thus would have different copyrights.

These nuances are something I do want to dig in further on; hopefully in another blog post soon (hence, "part I" above). The way copyright law deals with issues like the "moment" of creation, what constitutes a derivative work, and "substantial similarity" is not very responsive to the actual processes of human creativity. Not that this is news, really; the relationship between copyright and reality is fraught in general.

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If takedown notices are what it took for you to -really think- about rights ownership in your publications...

Last week, started receiving mass takedown notices from Elsevier (an academic publisher) for papers uploaded to the site by their authors. This has come as an offensive surprise to many of the authors who received the notices, and to many other academic authors who heard about the takedown requests. That surprise is pretty valid - generally, academic publishers have, until this point, looked the other way about copies of articles distributed by the articles' authors, even when posted to for-profit sites like

However, some of us who have been working for a while to help authors understand their publication rights are a little frustrated at the surprise. After all, we've been talking about some of the -other- results of authors' transferring away their copyrights for a while. Apparently, for some folks*, the following were not compelling reasons to -really think- about what happens with the copyrights in their publications:

  • Authors being required to get (and pay for) permission to reproduce parts of their own work in subsequent publications.
  • Authors being unable to post articles on non-profit/institution-hosted archives.
    (Or rather, such archives (naïvely?) telling authors to only upload works which they are sure they have the right to upload.)
  • Academic publishers actively suing a public university for using published articles in course contexts.
  • Lack of access for researchers at smaller or less well-funded institutions, or those unaffiliated with an institution that has subscriptions.
    (More than one academic has flat-out told me "it's not really true that people don't have access." Um, it's true there are often ways that people can -get- access if they have money or are willing to violate the copyright that now belongs to your publisher. If the copyright belonged to you, I think you might have a problem with that practice.)
  • Lack of access for researchers in the developing world.
    (Several publishers do have programs that allow limited access by developing-world researchers.)
  • High costs to the authors' own employing institutions in purchasing access to publications.
    (Subscription costs: up just about every year. Subscription budgets: often flat or down. And academic libraries are fairly frequently told to that they must "preserve collection budgets" while cutting costs.)
  • Clunky online interfaces that make it very difficult to link to legitimate versions of publications, even within subscribing institutions.
    (The linking functions of subscription interfaces are annoying, non-standard, and likely to break. Those interfaces are provided by publishers.)

I'm glad there was such an active and vibrant response to the Research Works Act last year, or I'd have to start getting more cynical...

*My frustration is with the general "what? takedown notices??? For things in which the publisher owns the copyright, and that have been uploaded to a commercial competitor????" response, not with any particular individual. As I say whenever I talk author rights with individuals: each author has different goals, influences, and requirements at various stages of their careers - there is no "one size fits all" publication answer. Most of the authors I've seen writing about this issue clearly -have- been thinking about their publications' rights, at least to some degree.
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Extremely off-topic: cold-weather bike gear update

Last year at this time, I did a post on things I'd learned in my first full winter (2011-2012) bike-commuting. If you're interested in giving winter-biking a try, go read that first.

However, with a second (and rather colder) winter (2012-2013) under my belt, and heading into a third, here's a few additional observations.


Really. In winter, no matter what, you're riding in the dark more often. Riding in the dark, especially on roads with cars, is DANGEROUS. Bikes are very hard for drivers to see - harder than pedestrians, because we're moving faster, and often are at a very bad angle for visibility. DO NOT RELY ON REFLECTORS. I frequently cross paths with other cyclists I cannot see.

At the very least, you should have an actively-lit headlight (white) and taillight (red) all the time. I usually have at least two headlights and at least two taillights going - the second set is on my bike helmet. I also often have another red taillight somewhere (this is because I carry loads on my back rack that sometimes obscure the basic light.) I also usually have -other- other lights in different colors hanging on my jacket or bike frame, and I have a green spokelight in my back wheel.

I really like the Nite Ize brand for lights-that-make-me-visible. They don't cast enough light to light the road ahead of you - you need a brighter headlight for that.

(I also have reflectors on my tire sidewalls, randomly scattered around my bike, on my helmet, on several pairs of shoes, and I wear a jacket with reflective stripes.)

2. Found a windbreaker I like a lot better

My first year, I used a low-end REI rain jacket with a plasticky lining. The lining broke down quickly. Last winter I bought a Novara Stratos jacket (I got a men's jacket, for layering, but wow the available colors right now are hideous) and Stratos pants. The lining is -much- hardier, as is the whole jacket. The pit zips do well with venting, and the reflective trim is a great feature. I don't use the pants quite as much until seriously wet winter, but I've already been wearing the jacket for the last several weeks.

3. At lower temps, toes are even harder to keep warm

Last winter I rode quite a few days below 0 °F (- 17.78 °). (My record is now -12 °F.) It doesn't matter how many socks you layer, toes get too cold. (Also, at a certain point more layers in your boots = cutting off circulation.)

The solution: toe warmer packs. You have to expose them to air to get the warmth going, so I open them a few minutes before I put boots on, then stick them to me at the last minute. You barely feel heat, but you don't freeze!

4. Still love... chopper mittens & liners, ski goggles, and wool shirts.

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Google Books suit dismissed: more affirmation of public interest in copyright

DISCLOSURE/DISCLAIMER: I worked at the University of Michigan Libraries for several years during the beginning of the book scanning project with Google that is the subject of this lawsuit. The University of Minnesota Libraries, my current employer, is also affiliated with the Google scanning project and HathiTrust Digital Library. This post represents only my own opinions and thoughts on the case, not that of any current or past employer or co-worker.

This morning, Judge Denny Chin issued an opinion in the massive, many-year lawsuit between the Author's Guild and Google over the Google book scanning project. Just a couple years ago, many possible outcomes were anticipated - and few of them would have provided much clarity for anyone except Google.

Instead, we got a ruling today which dismissed the case, ruled several different research and public interest activities were fair use, and in general, was very positive about the public benefits that this project has produced.

Quick Aside on Court Procedure

Despite the many years of booting around various class action certifications and possible settlements, the end result is that this case was dismissed fairly early in the full court process. As with the HathiTrust ruling from last fall, this opinion dismisses the case on summary judgment - that means the court has determined that there are no substantial factual points in contention, and the legal arguments so clearly favor one party that there is no need for a trial. Appealing a dismissal on summary judgment is generally a weaker place to be than appealing an opinion after a trial. (Though of course, in the HathiTrust case, the Authors Guild has indeed decided to appeal, and it will likely do so here as well.)

Fair Use Analysis

The main issue on summary judgment here was whether Google's book scanning was fair use. Judge Chin affirms that it is, for several different reasons. He appears to have been influenced both by amicus briefs from a variety of public interest organizations, as well as the HathiTrust ruling from last fall.

Judge Chin's fair use discussion begins by reminding us that it is "copyright's very purpose, '[t]o promote the Progress of Science and Useful Arts.''" He cites a variety of case law (as well as Leval's seminal fair use article) affirming that both incentives to authors -and- opportunities for others to use "protected works" are necessary to achieve that purpose (p. 16-17). As an advocate for the public interest in copyright, it is always heartening to see courts acknowledging that progress is the main goal, and that protection for creators is only one part of a considerably larger equation. (A frequent theme of my teaching is that we are all users and creators - creativity is an ecosystem.)

Judge Chin does dig in to the traditional four fair use factors, although on more than one occasion he notes that they are non-exclusive, and that other relevant considerations should also be weighed (p. 18, p. 25).

For the purpose factor, Judge Chin focuses quite a bit on transformative use, and notes approvingly that "Google's use of the copyrighted works is highly transformative" (p. 19). He approves of  "the use of book text to facilitate search through the display of snippets" (p. 19), as well as turning "book text into data for purposes of substantive research, including data mining and text mining" (p. 20) as transformative uses.

Chin's fair use analysis follows a line of cases from the 9th Circuit that looked at thumbnail uses of images as transformative fair use - and one outcome that the publisher/plaintiffs may have been looking for by bringing this lawsuit in the generally-more-conservative 2nd Circuit was to create a "Circuit split" on this issue (which often opens up avenues for Supreme Court appeal.) This could possibly still happen on appeal, but it seems pretty unlikely at this point. Instead, as commentator/law prof James Grimmelmann summed it up in a tweet: "I feel safe in saying that search indexing and snippet display are now definitely fair uses."

Another aside: I am very glad to see that these purposes were ruled transformative and in favor of fair use. However, I was also glad to see affirmed that "transformative use is not 'absolutely necessary' to a finding of fair use" (p. 19). Multiple avenues for arguing fair use is a good thing.

The court also discusses Google's commercial purpose, finding that it "does [...] benefit commercially" but "does not engage in the direct commercialization of copyrighted works" (p. 22). Even considering Google's profit motive, the educational and transformative purposes of the scanning project led Judge Chin to conclude "the first factor strongly favors a finding of fair use." (p. 22)

As to the nature of the copyrighted works, Judge Chin only briefly engages with the factual/creative angle on this question, noting that the "vast majority" of the books are non-fiction. He also notes that all the books have been published, and concludes that this factor favors fair use.

As to the amount used, Judge Chin notes that Google does scan the full text of books, and does reproduce the books verbatim. But, he notes, copying an entire work -can- be fair use sometimes, and "full-work reproduction is critical to the functioning of Google Books" (p. 23).  He notes approvingly that only limited amounts of text are ever displayed, and concludes that the amount factor does weigh "slightly against" fair use (p. 24).

Finally, Judge Chin considers the possibility of market harm. He directly rejects the publisher-plaintiffs' argument that people could use Google Books to piece together a whole book for reading, and states that "a reasonable factfinder could only find that Google Books enhances the sales of books to the benefit of the copyright holders" (p. 25).  Notably, he does not engage with the argument discussed in HathiTrust, that scanning without a license harms sales of licenses to scan (although I'm not sure if that was argued in the summary judgment briefs.) He concludes that the fourth factor "weighs strongly in favor" of fair use (p. 25).

After looking to the four factors in detail, Judge Chin enumerates the "significant public benefits" of the project as another relevant consideration. (p. 26) The various benefits he highlights includes that it makes books more findable, that it allows text-mining, that it preserves books (especially out of print ones), that it facilitates access to books for people with print disabilities and for "remote or underserved populations", and that it generates income for copyright holders. "[A]ll society benefits." (p. 26)

Because the plaintiffs also argued in their summary judgment motion that Google was committing contributory infringement by providing scanned copies of books to libraries, Judge Chin also (in quite short order) affirms that library uses are lawful uses, transformative uses, and that they advance the arts and sciences, etc. (p. 27). He states that the fair use analysis of the HathiTrust decision "applies here as well" (p. 28), so neither the libraries receiving the scans, nor Google in providing the scans to libraries, are doing anything wrong.

Library and Cultural Institution Implications

The great thing about this case moving away from class action settlement and towards actual court rulings on the substantive legal issues, is that the resulting rulings do not just apply to Google. If it's fair use for Google to do this kind of stuff, it probably is for others as well.

Like a lot of recent fair use cases, this case affirms the public interest elements of copyright, and how closely fair use is connected to those public interest elements, in kind of screamingly strong language. For institutions that have been reluctant to engage with fair use, this opinion, and the HathiTrust opinion of last year, are extremely strong grounds for contemplating the application of fair use to digitization projects, exhibits, and other such publicly beneficial uses. (The more so because most libraries and cultural institutions are entirely non-profit, unlike Google which has acknowledged commercial purposes.)

This decision, by again affirming the 9th Circuit precedents in a different circuit, also lends weight to many recent best practices or other statements on use of materials in research or museum contexts that have relied on transformative use and related arguments. Examples include the ARL Code of Best Practices in Fair Use for Research Libraries, the AAMD Policy on the use of thumbnail images, the VRA Statement on the Fair Use of Images for Teaching, Research, and Study, and several others.

One fun thing to note is that if you've been thinking, "Well, Section 108 gives us broad preservation digitization rights, but then we can't do anything with the resulting digital files" - hey, making those files searchable, and sharing snippets at least, is looking like a strong fair use! (What's more, digitizing some things that you don't think would be covered by section 108 preservation rights might be fine, too! It might have been before these rulings - but if you were feeling timid before, for goodness' sakes, GET OVER THAT now. If your institution has been reluctant to embrace the risks and uncertainties of fair use, these decisions are reducing the uncertainty, a lot. Or, you know, stick your head in the sand and wait for appeal, or wait for a Supreme Court ruling, or...)

Edited to add: also, negotiating for preservation of statutory use rights in ALL of our licensing agreements is EVEN MORE IMPORTANT than it was before, GLAM folks!!!!

I'm sure there's more to think about here. I note that several colleagues have posted analyses of the decision that I haven't yet had time to read. My reading list now:
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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

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