Storytelling and new media narrative

Copyright and fair use in education


Digital Storytelling in the Classroom: New Media Pathways to Literacy, Learning and Creativity. Learn more about Jason's book about digital storytelling and new media narrative in education. Read reviews, peruse the table of contents, or purchase the book. Would you like your copy "signed at a distance?" Then contact us to receive a bookplate you can add to the inside cover.

Orchestrating the Media Collage. This article appeared in the Feb-March 2009 issue of Educational Literacy, and addresses the many skills we need to be literate in the digital age, including the ability to tell effective stories.

PART V - Copyright and fair use in education

Storytelling in five parts. I have divided my storytelling resources into five parts, each with its own web page. All five parts are accessible through the menu in the right margin.

This is Part V - Copyright, Fair Use and Education. It addresses the issues that haunt educators about what is legal, ethical and reasonable when it comes to students using someone else's materials in their projects.

The information on this site is not intended to be used as legal guidance. Rather it should be used simply to help you develop your own perspective about copyright and fair use issues as they relate to your professional practice.

This site is geared toward the classroom teacher. I assume you have limited time and resources to spend on incorporating digital storytelling into your curriculum. That is why I tend to think in terms of low budget projects that can yield high academic and creative returns.

Copyright Issues - Living in the Gray Zone

The day the lawyer came to town...

"...well, now, that's sort of a gray area..."

I will never forget the day a lawyer came to my institution to explain the implications of the TEACH Act, a vague enactment of government intended to explain the legalities of using electronic material in teaching and learning. The lawyer's presentation was well attended because many of us were confused about academia's legal responsibilities with regards to faculty and student use of materials found on the web. Like everyone else who had come to hear the lawyer speak, I looked forward to finally getting some clarification.

After making a short presentation that was muddy at best, the lawyer asked for questions. While there were plenty of them about a number of different topics, her answers all began the same way: "Well now, that's sort of a gray area..." I'm not kidding. In short, we all came for clarity and left with grayity. Had the Q & A session been a Monty Python skit, it would have been hilarious.

My intention is not to lampoon the lawyer. In fact, the issue of fair use IS a gray area. And it is a gray area that has sprung up over night. Just a few short years ago it was too difficult to include someone else's photo in a project. Now it is too easy. We are all dancing quickly to understand what this shift means.

Bottom line: the issue of copyright and acceptable use is indeed a gray area. In fact, on only point do all copyright specialists seem to agree: each case of fair use is unique and needs to be considered on its own merits.

The information that follows will hopefully shed some light on how this gray area has been navigated. It should also give readers a sense of how fair use is being redefined. Remember: This site does not offer legal advice of an any kind and should not be construed as doing so. If you are ever concerned about the legality of something, ask your district's legal counsel for advice.

What teachers want to know

When it comes to issues of copyright, teachers want answers to questions like:

  • Can my students use graphics they find on the web in their digital stories?
  • Can my students use music in their digital stories that they have downloaded from the Internet or commercial CDs?
  • Should my students cite works? Ask permission? Both?
  • What values regarding the world of creative content should I impart to my students?

What the law says

...I'm not a lawyer and don't play one on legal advice when in doubt

I have read the Teach Act and a good deal of commentary about it and have developed my limited understanding of what it says about using digital materials in school projects, like digital stories. Below are points that specifically relate to using material in projects:

  • Music, video, animation: Students can use 10% or 30 seconds of songs, movies and other works, whichever is shorter.
  • Words: Students can use 10% or up to 1000 words from a text, whichever is shorter.
  • Illustrations, photos, graphics: This is more vague. Students can use no more than 5 images from one artist; they can use 10% or 15 works from a collection, whichever is smaller.

But as you shall see, the court cases summarized on this site suggest that these function more like guidelines than laws.

Common Sense Copyright

When legal understanding fails us, there are always common sense, the golden rule and respect for others' property to fall back on - just like our parents taught us. They provide a great place to start our conversations with students about using other peoples' material in their digital stories. Whether they help to produce a defensible legal position or not, they can help students develop their own perspective about what is useful, reasonable and fair in a true constructivist sense. They also provide a good (though incomplete) introduction to what many feel the law actually does say.

A new kind of theft. For many students the stumbling block in understanding the nature of "fair use" is the altered nature of theft in the Digital Age. If I take your car, I have your car and you don't. But if I use a copy of your song, you still have your original copy. I don't deprive you of your song, but rather I deprive a third party, musicians and their publishing companies, of something that results from it: respect, recognition and possibly royalties, and thus a means to make a living. Depriving someone of royalties is very real yet conceptually less tangible, particularly to the young mind. However, asking students a question like the following helps them focus on the realities of fair use and copyright in very real ways: "If you were trying to make a living as a musician, how would you react if someone downloaded rather than bought your music?"

I am not suggesting that this issue is black and white - it is indeed gray. There is a plenty of discussion about what the public should be able to do with copyrighted music, particularly within a non-profit, fair use setting. But the question helps students gain a perspective they will need in order to think about this issue broadly and deeply.

Three rules of respect

The bottom line is respect- respect for other people's work and how they want their work to be used and credited. There are three levels of increasing respect that help frame this discussion for students:

  • Citation. Students must cite all material they use in a digital story, showing the same respect for graphics, words, music and other media that we expect them to show when quoting a journal article. This is the minimal level of respect and must always be observed.
  • Permission. When possible, also ask permission. Many websites provide an email contact.

    How about the saying "asking forgiveness is easier than asking permission?" In practical terms, what happens if you ask permission to use an original graphic from someone's website, are denied, but using the graphic still falls within "fair use" guidelines? That's a gray area alright. I can tell you this: no one has ever refused to let a student of mine use a picture or other piece of media for educational purposes. Often they are grateful they were asked. What happens if you try to contact someone, don't hear from them, and use of the graphic falls within fair use? In my very un-legal opinion, you have passed the test of respect and have a fairly strong case for using it. By the way, be sure to find out if the author of media you are using wants to be cited. Most do, but some don't.
  • Compensation. Typically anyone who requires compensation for the use of their materials will be very clear about it. Feel free to ask if they make exceptions for educational use. But if they insist on being compensated, then pay them or don't use their materials. To me, it's that simple. However, I appreciate that to others it may not simple. This is one of those issues that is handled on a case-by-case basis in the legal system. However, within a school setting, I strongly encourage you not to push the limits on this. If someone wants to be paid for their material, and you can't or don't want to pay them, then don't use their material.

Four Factor Fair Use Test

Another approach to determining fair use is what is commonly called "the four factor fair use test," which offers guidelines in terms of the four questions below. If you want to know more about the four factor test, I suggest consulting the University of Texas's site devoted to this topic, which offers far more detail than I provide here:

  • What is the character of the use? Non-profit, educational use is better (that is, less apt to raise legal red flags) than commercial use.
  • What is the nature of the work to be used? Factual, published material is better than imaginative, creative work.
  • How much of the work will you use? As obvious as this might sound, a small amount is better than more than a large amount.
  • If this kind of use were widespread, what effect would it have on the market for the original? The less your use of the material competes with or takes away from sales, the better.

Precedents, court rulings, perspectives

What follows are what I find to be some of the more interesting court rulings on issues of fair use. Unfortunately, I don't have time to follow each one, to see how each case evolves and how appeals turn out. So, be sure to conduct a follow up search to read about the latest developments.

Apropos Appropriation, By Randy Kennedy, published: December 28, 2011, New York Times

This is an interesting and informative article about the copyright conundrum, particularly as it relates to the world of art, mashups and "transformation" the art of digital collage development using other artists' materials. Much of what gets decided here will reverbate throughout the world of Fair Use for some time. From the article:

"In March a federal district court judge in Manhattan ruled that Mr. Prince — whose career was built on appropriating imagery created by others — broke the law by taking photographs from a book about Rastafarians and using them without permission to create the collages and a series of paintings based on them, which quickly sold for serious money even by today’s gilded art-world standards: almost $2.5 million for one of the works. (“Wow — yeah,” Mr. Prince said when a lawyer asked him under oath in the district court case if that figure was correct.)

"The decision, by Judge Deborah A. Batts, set off alarm bells throughout Chelsea and in museums across America that show contemporary art. At the heart of the case, which Mr. Prince is now appealing, is the principle called fair use, a kind of door in the bulwark of copyright protection."

Read the entire article, Apropos Appropiation.

Fair use court cases, legal opinions and precedents (1994)

Campbell v. Acuff-Rose Music, Inc.. This Supreme Court case is instructive in its use of the four factor test. Briefly, 2 Live Crew created a song "Pretty Woman," a parody of Roy Orbison's song, "Oh, Pretty Woman." When 2 Live Crew's manager asked Acuff-Rose Music, who owned rights to the song, for permission to licence Roy Orbison's tune, Acuff-Rose Music refused. Despite the refusal, 2 Live Crew produced and released the parody anyway. Within a year the song sold almost a quarter of a million copies. Acuff Rose sued 2 Live Crew and its record company, Luke Skyywalker Records, for copyright infringement.

The first judgement by the District Court found in favor of 2 Live Crew, citing that its song was a parody and therefore made fair use of the original song under § 107 of the Copyright Act of 1976 (17 U.S.C. § 107).

The Court of Appeals reversed and remanded the District Court's decision, citing that because the parody was of a commercial nature it was unfair under the first of four factors relevant under § 107; that, "by taking the "heart" of the original and making it the "heart" of a new work, 2 Live Crew had taken too much under the third § 107 factor; and that market harm for purposes of the fourth §107 factor had been established by a presumption attaching to commercial uses." (Wikipedia) However, the Supreme Court reversed the Court of Appeals, ultimately leading to 2 Live Crew and Acuff-Rose reaching a settlement.

What is truly important here is this train of facts: someone asked to use someone else's work, was turned down, used the work anyway, was sued and was exonerated! So much for issues of permission and copyright being clear.

The Case of "Liberal Viewer" vs. Viacom: The little guy wins (2007)

The case of Liberal View vs. Viacom attracted a good deal of attention on the part of YouTubers and other mediasts. Educators should take notice as well.

Read this short article about it, or simply Google "Asch Viacom YouTube." But the gist of it is this. A YouTuber who goes by the name "Liberal Viewer" (real name = "Allen Asch" from Sacramento, Califorinia) posted short commentaries on Youtube that used clips from programs like the Colbert Report. Viacom, who owns the Comedy Channel (and thus the Colbert Report), told YouTube (owned by Google) to take down his work. Google complied.

From the article: "He (Asch) studied the "fair use" doctrine of the copyright laws and fought to get the videos reinstated. Fair use is an exception to the law that allows people to use copyrighted material for commentary, parody, news reporting and educational research." So, Asch, with the help of the ACLU, fought the ruling, and won. Viacom even promised to be more tolerant of such use in the future.

What does this mean for the rest of us? I have no idea. But a non-legal interpretation suggests that when students use copyrighted material for "commentary, parody, news reporting and educational research," they are covered by this ruling.

The Case of Shepard Fairey: Inspiration or infringement? (2009)

This case provides an excellent example of how muddy copyright infringement can be. In this widely publicized case, Shepard Fairey created the iconic "Hope" poster of Barack Obama based on a photo taken by an Associated Press photographer, Mannie Garcia. The AP threatened Fairey with a lawsuit for using the image without permission and intended to seek payment for using it, as well as share in the profits from it. Pre-empting the suit, the Stanford Law School's Fair Use Project filed a lawsuit on behalf of Fairey stating that his work is protected under Fair Use. Just to make matters more confusing, Garcia says he owns the photo, not the AP.

At issue here are a number of important concepts: fair use, artistic license, the 4 factor test (covered on this website) and "transformation" - a vague consideration in copyright cases that basically seeks to determine if an original work has been so transformed as to no longer qualify as the original, thereby excusing the transformer, in this case Shepard Fairey, from accusations of copyright infringement.

The NPR radio show, Fresh Air, ran an excellent program about this case, titled Shepard Fairey: Inspiration or Infringement. It provides interviews with Shepard Fairey, Mannie Garcia and Law Professor Greg Lastowka who explains court precedent with regard to fair use cases. One indisputable fact emerges from this case, which Professor Lastowka makes only too clear: there are no clear cut guidelines when it comes to fair use, and every case is tried on its own merits. Life in the gray zone.

The Case of Zappa vs. Zappanale: The transformation of a moustache (2008)

Another interesting case concerning transformation is the Zappa Family Trust (ZFT) lawsuit against the Zappanale Festival, held in Germany. Part of the lawsuit focused on Zappanale's use of the Zappa Moustache logo. Zappanale had modified the moustache, and the court ruled that Zappanale's was different enough (sufficiently transformed) that the public could not confuse the two. Read a brief overview about this in Wikipedia, or a more detailed article about it from the January 22nd, 2009 issue of Spiegel Online.

ACLU sues Tennessee school districts over blocked web sites (May, 2009)

On the flip side of this issue is what students are not allowed to see. From an eSchool News report: "The American Civil Liberties Union and its Tennessee branch sued two Tennessee school districts in federal court May 19, claiming that the districts are unconstitutionally blocking students from accessing online information about lesbian, gay, bisexual, and transgender (LGBT) issues."

At issue is filtering. "Metropolitan Nashville Public Schools, Knox County Schools, and as many as 105 other school districts in Tennessee use internet filtering software provided by Education Networks of America (ENA), which operates a statewide network connecting the state's schools, to block web sites containing pro-LGBT speech--but not web sites touting "reparative therapy" and "ex-gay" ministries, the ACLU says."

"The "LGBT" filter is not used to block web sites containing pornography, which are filtered under a different category--but it does block the sites of many well-known LGBT organizations, including Parents, Families, And Friends of Lesbians and Gays (PFLAG), the Gay Lesbian Straight Education Network (GLSEN), and the Human Rights Campaign (HRC)."

According to the ACLU, "This discriminatory censorship does nothing to make students safe from material that may actually be harmful, but only hurts them by making it impossible to access important educational material."

Read the entire article.

Navigating the gray zone of copyright and fair use

Here are some ways options:

  • Be perpetually paranoid. The easiest way to avoid the gray area is to be paranoid. Whenever in doubt (which is almost always) just don't use something. While it is the safest approach, I don't recommend it. The laws are there to serve both groups of people: artists, as well as the teachers, students and rest of us who would like access to material. I say, "When in doubt seek permission."
  • Use what you find on the Web, observing the 3 Rules of Respect. Follow "the three rules of respect" explained above, citing sources, asking permission when possible, and compensating when necessary.
  • Create your own material. An exciting option these days is creating all of your own material. The tools are so good now that it is possible to do a credible job in a very short period of time. Software like GarageBand makes creating your own music not only doable, but easy, fun and quick. Even a rudimentary grasp of a program like PhotoShop makes preparing visual information very doable.
  • Use your friends' material. There is always material created by your friends, and your friends' friends, who are usually amenable to letting you use their material. I use my friends' material, and in turn let them use mine. Better yet, have them list their material through Creative Commons, covered next.
  • Use the Creative Commons ( Creative Commons is an alternative form of copyright licensing that gives creative content developers and consumers options not available under the traditional copyright system. Rather than "all rights reserved," developers can select from a range of permission options. Are you looking for music or artwork for classroom projects that you can use with a clear conscience? Do you have music or artwork that you would like to make available to teachers, the public or to commercial enterprises? Go to Creative Commons.
  • Subscribe to media services. There are a number of graphics subscription services that offer unlimited access to a database of materials. I subscribe to ClipArt for about $150/year and gain access to over a million graphics and photos. It is a great deal.
  • Use material only provided on free-use sites. Many places on the web advertise the use of their material for free, or with less restricted access. I have provided a list of websites featuring inexpensive resources above. Read the disclaimers, cite your sources, but use them. That is what they are there for.

Copyright Resources

There are many websites devoted to the issue of copyright and fair use in education. Some are comprehensible by mortals, others are not. My favorite is The Center for Social Media. It has produced reports, videos and other reference material that are very helpful to non-mediasts in terms of navigating the morass of competing interests involved in considerations of fair use. Here are some of my favorites:

  1. Code of Best Practices in Fair Use for Online Video. This attempts to deconstruct and help clarify what you can do with regard to mashups, which are typically media collages that use a good deal of other people's material. In broad terms, the intended audience consists of all those people who want post original video and media productions on Youtube and would like to understand the copyright and fair use implications of their work.
  2. Copyright and fair use in education. This does a good job of helping to clarify what teachers and their students can reasonably do with regards to using other people's materials in school projects.
  3. Documentary Filmmakers’ Statement of Best Practices in Fair Use. This document was created by film makers and members of the movie industry. It has been very helpful in clarifying the gray area of using original source materials in the development of documentary films. A question for teachers is: to what extent can you view the media that your students are doing as documentaries? Is a history media project a documentary?

Other resources

The resources listed below are some of the better ones I have found in terms of translating legalese more or less into plain English:

Citation Resources

Getting students to cite sources is difficult, not because they don't want, but because the nature of finding internet resources is so rapid fire and haphazard. They tend to download way more than they need, then choose later which they want to use. At that point the URL is gone, unless they have been logging where they found their resources. Here are a few ways to address this:

  • Bookmark everything you download. It only takes a moment. But it does not come naturally and I find myself nagging students until it comes a habit of mind.
  • Use Google Notebook. Open a Google notebook page and copy, paste and store urls as you go along.

However, as of May, 2009, I have still not found the Internet App we all truly need - a program running in the background that automatically logs any image you download and creates a bibliography on the fly.

Here are some other citation apps passed on to me by Lisa Parisi for creating citations: