Fair use & education

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The article “Educational Fair Use Today” by Jonathan Band (PDF) provides some insight into what one can do and still claim fair use based upon 3 court cases that he outlines. Because of the recent post that I made on the use of photos on this blog and whether or not I could claim fair use, I found the cases themselves and his conclusions interesting.

The first case he describes an artist who uses portions of images (in the specific case, one called ‘Silk Sandals’) and incorporates them into his own art. In this case, the man in question, Jeff Koons was sued for copyright infringement by the photographer Andrea Blanch who shot ‘Silk Sandals’ for an Allure magazine advertisement. Even though Koons derived income from this new work (thus, infringing upon the market or potential market of the Silk Sandals ad ), because his work had “sharply different objectives” than Blanch, it “confirm[ed] the transformative nature of the use.”

In the second, it describes a court case in which Google was originally told that their use of thumbnail images from a website infringed upon the copyright that that website held with those images. Google was making money off of the images because of their advertising program AdSense. This, in addition to the fact that the website whose images Google was indexing held a contract with a phone company which charged cell phone users to download them to their phones. In lay person’s terms, Google hurt the market for these images. That was what a district court originally decided. But, in a case in the 9th Circuit, they found that Google’s thumbnail images were “highly transformative.” Worth quoting is this passage from this paper:

The Ninth Circuit stated that in reaching this conclusion, it was mindful that the Supreme Court had stressed “the importance of analyzing fair use flexibly in light of new circumstances[,] … especially during a period of rapid technological change.”

Why do I think that this is important? Because things are changing so quickly as the court says. If the court were to have an inflexible notion of what constitutes fair use, then they wouldn’t be able to rule objectively on cases that don’t relate to old notions of what is fair use. With the advent of the Internet and all that comes with it e.g., blogs, I’m happy that the Court recognized this in their decision.

The third one discussed concerns the Bill Graham Archive (NOT evangelist Billy) and a book publisher, Dorling Kindersley. In one of the books published by Kindersley, they used images of Grateful Dead posters on a timeline at reduced size.  The court ruled that the transformative nature of the work - by reducing the size of the image, repurposing the image as an artifact that showed where the Grateful Dead were rather than to promote the actual concert “ensur[ed] that the images at issue [were] employed only to enrich the presentation of the cultural history of the Grateful Dead, not to exploit copyrighted artwork for commercial gain.”

So what do I think can be learned from all three? First, I absolve myself of all responsibility if you take what I say as legal advice. I am not a lawyer. These are just my opinions/interpretations. I think in the first case, if you take a copyrighted work and make use of it in some form or fashion that is entirely different than it was originally intended, you can claim fair use. I think that if in the situation which I had with the Bookchase people, I had taken part of their photograph rather than the whole thing, I could have claimed fair use. Maybe I could have added a nice border to it or focused on the central hub with axles that are so similar to Trivial Pursuit. In the second and third cases, I think that reducing the size of the image, if you choose to use an entire image is extremely important. It’s also important, I think, to provide context to the image. If you just slap up pictures on your blog or website without adding dialog or commentary on them, then you’re probably in trouble. I think, however, that I tried to contextualize them with that dialog. I didn’t add dialog directly above/below the photo, but I tried to use the text to describe what I saw as a similarity. Transforming a work is a major way that one can claim fair use. In his analysis, Band says,

The transformative nature of the use increasingly appears to be the most important criterion, swallowing the other factors. However, the notion of the kind of use that a court will consider transformative is far broader than the term “transformative” suggests. While the term “transformative” implies that the work itself has been changed, i.e., the user has made what would be considered to some extent a derivative work, both Amazon.com [part of the Google case] and BGA make clear that repurposing a work or placing it in a new context may be sufficient to render a use transformative.

So what have I learned from all of this? Claiming fair use on something is tricky. It’s also very similar to knowing when to quote or paraphrase and how to do it properly. If you aren’t sure about whether you have the right to do something, it’s probably best you don’t. The best way to learn sometimes is to experience it yourself and I think this has helped me understand this issue.

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Filed under Library, Technology

Tags: copyright, fair use