Fair Use – did I get this right?

Okay – there are days that I THINK I understand copyright law in educational settings. A former student of mine asked if she could use images that she found using the Google image search if she labeled where they were from. The images would be used in a magazine she wants to produce with school funds.  Here is my answer. Did I get it right? I really want to know.

Hi Former Student- (she’s still in high school – I changed divisions)

I know that copyright questions are very confusing. And with so many images out there and with the ease of publishing and downloading, it feels like we should be able to use any of them. But unfortunately, many images are protected by copyright and we need to be aware of and respect the rights of the copyright holder.

There are so many images out in the world that are availabile for reuse. Flickr has 21 MILLION images that are licensed for use under the Creative Commons Share Alike Attribution license http://www.flickr.com/creativecommons/by-2.0/

The owners of these photos have all granted permission for reuse and for alteration – all you have to do is give them credit for the original image and agree to share any work you create with their work. You can’t copyright a work based on their work.

The federal government has an enormous photo archive. Anything the federal (not sate or local) government creates is in the public domain. Look at www.loc.gov (the Library of Congress) [TO CLARIFY – not all images at the LOC are in the public domain. If the government produced it, it is – but because the LOC is a repository library, there are things there that they did NOT make. Look in the image description for further information.]

Google allows you to do an advanced image search that allows you to search only images that are labeled for reuse – Look under Usage Rights.

Now, I believe that we should be able to use materials that we find to create new work, and this is the basis of a lot of confusion. How do we define “new.” Is the image used in a way that it was not originally intended? Has it been altered in any way? So take music for example, we can sample someone’s work, loop it, add a new lyric and maybe a counter-melody, and maybe we also change the audience for the original work. So Kanye West gets used in a symphony. This use transforms the original work. They will have ALSO received written permission to use his work.

What about that Red White and Blue HOPE portrait of Obama? The artist is involved in a major Fair Use lawsuit about transformative use http://paidcontent.org/article/419-judge-in-ap-shepard-fairey-fair-use-suit-suggests-settlement/
Even though he gave away 300,000 posters free, AP sued over the use of the photo.

If you want to use copyrighted images, you need to contact the owner of the image and get permission from them. Now, do I think that a wire service is going to come and find you if you use a copyrighted image? Probably not – you are small potatoes, but, like all other decisions like this we decide what to do based on what is right not what is expedient. What is the correct thing to do is not based on whether you are a student giving this out for free, it is based on what is right and fair to the artist who created the work.

  • So, if you are using copyrighted images to illustrate a story, then it is a clear case of copyright violation no matter if you cite the photographer and owner of the image, unless you have written permission to use the image from the owner.
  • Did you take a bunch of images and mash them up, change them in photoshop, create art of them? That is less clear. I’d say then you are in clear Fair Use territory. I would still seek permission to use the images.
  • Are you writing about reality television? You could use images from reality shows as long as they are illustrating a point you are making in your story and not just used to attract readers (eye candy). This is using the images as texts that you are analyzing.

I really believe that art should be freely shared. Creating art implies a relationship with the reader/viewer/listener, and that experience is important. But I do not adjudicate copyright law.  If an image is owned by an artist or corporate entity, and your use is to illustrate and not analyze, then it would seem to be a basic violation of copyright law.

I’m sure that this begs more questions than it answers, but  I hope that it helps. And in the words of my friend and fabulous artist, M.C. Mantz – Be original, or ask permission!

Ms. Tabor

5 Comments Add yours

  1. mcmatz says:

    I applaud encouraging anyone to get permission for use of images. The images artists and photographers create are what they earn their living from and as pretty or as perfect some image may me for use, the creator needs to be contacted and asked permission and compensated, if they ask for it in exchange for use.
    In the U.S., most images created before 1923 can safely be assumed to be in public domain and copyright-free. Attribution is always considerate.
    The government images at loc.gov are NOT all free from copyright. The image description usually clarifies this.
    If you mash-up images, they best be unidentifiable as the original image. An illustrator for TV guide once famously got pegged when he put Oprah Winfrey’s Head on what was easily seen to be a body taken from a photo of Ann-Margaret.
    Fair use is vague but generally, if you are using the image to comment on the subject, either by reviewing the art itself or in parody, it’s okay. You can use a still from a film in a review of a film. You can do a send-up of Dr. Seuss as long as long as the parody comments on Dr. Seuss and not anything else like a political figure.
    Using the images of famous people – even dead ones – also falls within copyright. Marilyn Monroe, James Dean, Elvis, The Three Stooges, etc. all have representatives for their estates patrolling the use of their likenesses.
    This extends to trademarks, too. Daley College once called their newspaper The Daley Planet and used the familiar Superman tagline “for truth, justice and the American way” until DC Comics laid a lawsuit down on them.
    Be original or ask permission. Never just attribute and assume that’s enough unless you are sure it is.
    And on threat of death, never use a Disney property.
    They are serious.
    They got Congress to extend copyright 70 years after the creator’s death to protect the Mouse.
    Hope this helps!

    1. Kate Tabor says:

      Thank you! This is exactly what I was hoping for. I’m happy to be the “go-to” person on stuff that might not require a lawyer – but this is a slippery landscape.

      I should clarify the Library of Congress resource, this is true – as they are a repository library – but if the Federal Government created or paid to have something created (film/photo/poster/text) public domain is assumed – though the Library is FILLED with stuff they didn’t create.

      And I really appreciate this – especially from someone who makes their living creating wonderful visual images.

  2. Sajib says:

    Cool. You really typed that long message just to let your student know this simple thing? Well, I know it’s not that simple. But I wouldn’t have written that long message to let her know about creative commons attributions. It needs at most three paragraphs, I guess. 🙂

    1. Kate Tabor says:

      Hello – I wrote a bunch, I know, but her question seemed to need more than a “just use creative commons images” answer but the reason NOT to use just any image. My students are used to understanding the “why” of the issue at hand, so I always try to provide it. Thanks for reading and commenting. It’ nice to meet you.

  3. The archives at Wikimedia Commons is also a good source of images.

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