robertogreco + fairuse   11

Fair Use Too Often Goes Unused - The Chronicle of Higher Education
"When you are writing a book analyzing images from Kurosawa’s Rashomon, you should include images from the classic 1950 film. The logic behind that seems straightforward — but the logistics can be less so.

For Blair Davis, an assistant professor of communications at DePaul University who edited Rashomon Effects: Kurosawa, Rashomon and their Legacies, published in 2015 by Routledge, getting permission to use the stills in the book turned out to be almost as difficult as ferreting out the truth in the film itself.

"I spent at least a year dealing with the Japanese corporation Kodansha, which owns the rights," Davis told me by email. He had to "hire someone who spoke Japanese to conduct face-to-face negotiations in Japan." Worse, in the end, Davis wasn’t even allowed to use the images he had asked for. Kodansha insisted he choose from a small selection of publicity photos, rather than the scenes actually analyzed in the text.

Davis’s acquisition process was more arduous than most, but the general predicament will be familiar to many academics who work with film, art, comics, or other visual materials. Many academic presses and journals require permission for the reprint of any images. For instance, Julia Round, a principal lecturer at Bournemouth University and editor of the journal Studies in Comics, told me that, at the request of its publisher (Intellect Books), "we always seek image permissions." Only if authors can’t track down permissions holders, Round said, does the journal consider printing small images under the legal doctrine of fair use.

But while publishers want authors to get permission, the law often does not require it. According to Kyle K. Courtney, copyright adviser for Harvard University in its Office for Scholarly Communication, copyright holders have certain rights — for instance, if you hold rights for a comic book, you determine when and by whom it can be reprinted, which is why I can’t just go out and create my own edition of the first Wonder Woman comic. But notwithstanding those rights, fair use gives others the right to reprint materials in certain situations without consulting the author — or even, in some cases, if the author has refused permission.

Courtney explained that courts have used a four-factor test to decide whether or not the reproduction of artwork, or other elements, falls under fair use. Judges look first at the purpose of the use; then at the nature of the copyrighted work itself; then the amount of the work reproduced; and finally at the effect of the use upon the market. Thus, when you publish — for scholarly purposes — a single image from a feature-length film that will not affect the market of the film, you have a good chance of being covered under fair use.

In the last decade, courts have also used the concept of transformative use, Courtney said. If you are using an image for a different purpose than it was originally intended, and thereby transforming it, you have a strong fair-use argument. "So if a comic book at the time period was to entertain, but you’re doing a critical/social analysis of what the comic means today," he said, "you’re applying a new meaning, a new message — you’re transforming the original for a new purpose."

In some recent court cases, judges have upheld fair use after the copyright holder had explicitly denied permission. In the early 2000s, DK publishing was refused permission to reprint Grateful Dead posters for an illustrated history of the band. The publisher reproduced the images anyway, and then defeated the lawsuit in court. Asking a copyright holder for permission does not mean that you vitiate your fair-use rights. (Courtney has created a handy explanatory comic about the case, available here.)

Betsy Phillips, sales and marketing manager at Vanderbilt University Press, said that it evaluates fair-use questions on a "case by case basis." In particular, Vanderbilt treats marketing images very differently from reproductions inside the book. "There’s a difference between a film still on the inside of a book that’s discussed in that book, and a page from a comic book on the cover," she said. The amount of material reproduced is also important: A black or white thumbnail of a detail of a painting would probably be fine, but a high-resolution, full-color image of an entire work might require permission.

Phillips also emphasized that the press tried to keep a clear paper trail of its use of images, including discussions about the rationale for fair use of each image, and why permission did or did not need to be sought. She noted that professional societies often have useful guidelines. For instance, the Society for Cinema and Media Studies discusses fair-use policies on its website.

Of course, some publishers may still prefer to ask for permission each and every time you want your book to reprint an image — it seems safer. If you get permission, you know for sure that you won’t have legal struggles. Why mess about with fair use, where there is at least a small risk of unpleasantness?

Seeking permission may seem safe, but it can have serious ethical and practical downsides.

Consider the case of David W. Stowe, a professor at Michigan State University who wrote Swing Changes: Big-Band Jazz in New Deal America, a 1994 book about the cultural milieu of big-band jazz. Stowe wanted to reproduce cartoons from Down Beat magazine to illustrate the racism and sexism of the era. Down Beat had approved reprint requests for such materials from other scholars. In this instance, however, according to a 2000 account by Lydia Pallas Loren in Open Spaces Quarterly, the magazine refused because "the drawings made the magazine ‘look bad.’" Stowe feared a lawsuit, and so did not use the images. Asking for permission gave the magazine a chance to stifle criticism.

Copyright holders may also try to force a press or an author to cough up exorbitant fees for reprints. That can be a financial hardship for a scholar, or simply make it impossible to use the images — which isn’t censorship per se but does damage scholarship.

As Julia Round explained, "Having to describe an image wastes so many words! And it simply doesn’t substitute for seeing the image itself. It’s so complicated trying to talk about complex page layouts, or attempting to explain a particular effect, or describing the idiosyncrasies of a font, or a precise shade of color."

Omitting the image also prevents readers from analyzing it for themselves. If a critic says a particular shade of green in the image is sickly and disturbing, the reader has no choice but to take the writer’s word for it, unless the image is reproduced. Of course many images today are online and can be easily Googled, but many other comics, film stills, and paintings remain offline and inaccessible. If you can’t show the image right in the text, Round concludes, "it makes it hard for any reader to fully understand and critically engage with what is being said."

Books and journal articles about visual culture need to be able to engage with, analyze, and share visual culture. Fair use makes that possible — but only if authors and presses are willing to assert their rights. Presses may take on a small risk in asserting fair use. But in return they give readers an invaluable opportunity to see what scholars are talking about."
copyright  fairuse  publishing  film  academia  2017  noahberlatsky  rashomon  blairdavis  juliaround  images  kylecourtney  transformativeuse  betsyphillips  cinema  media  davidstowe  lydiapallasloren  illustration 
may 2017 by robertogreco
Enthusiasms: No Copyright Intended
"we live in a post-copyright society where everyone is a serial infringer, yet the outdated laws are still in effect, and sometimes, the copyright holders have the will and means to use those laws to punish single instances of what they, themselves, are likely doing."
2015  copyright  law  legal  hypocrisy  dmca  tumblr  internet  online  fairuse  sharing 
january 2015 by robertogreco
Plagiarism: Maybe It's Not So Bad - On The Media
"Artists often draw inspiration from other sources. Musicians sample songs. Painters recreate existing masterpieces. Kenneth Goldsmith believes writers should catch-up with other mediums and embrace plagiarism in their work. Brooke talks with Goldsmith, MoMA’s new Poet Laureate, about how he plagiarizes in his own poetry and asks if appropriation is something best left in the art world."

[Full show here: http://www.onthemedia.org/2013/mar/08/ ]

"A special hour on our changing understanding of ownership and how it is affected by the law. An author and professor who encourages creative writing through plagiarism, 3D printing, fan fiction & fair use, and the strange tale of who owns "The Happy Birthday Song""
plagiarism  poetry  poems  2013  kennethgoldsmith  moma  appropriation  creativity  originality  writing  creativewriting  3dprinting  fanfiction  happybirthday  songs  music  drm  copyright  fairuse  ownership  possessions  property  law  legal  ip  intellectualproperty  campervan  beethoven  robertbrauneis  jamesboyle  history  rebeccatushnet  chrisanderson  michaelweinberg  public  publicknowledge  campervanbeethoven  davidlowey  johncage  representation  copying  sampling  photography  painting  art  economics  content  aesthetics  jamesjoyce  patchwriting  ulysses 
march 2013 by robertogreco
notes.husk.org. Should Jay have the right to claim the derived....
"“Should Jay have right to claim derived image isn’t fair use & ask for cease & desist? Yes. He’s not, as many are saying, a dick for his opinion. Should Andy have the ability to defend his stance that it is fair use. Of course. Should it take the kind of money that only either corporations or the very rich can easily afford to spend in order to get a judge’s ruling and find out? Definitely not. That’s the real problem here.”

James Duncan Davidson writing about The Maisel vs Baio Incident.

I strongly agree…Currently US (&, largely, UK) ration access to law on ability of both (sometimes prospective) litigant & defender to pay, rather than merits of case.

Another piece…mentions Shepard Fairey vs AP case (Obama Hope poster) would have made great case law. Instead…ended w/ out of court settlement. Shame.

(…another public service which has more demand than access—health care…UK largely rations through need, via NHS…US dependent on employment, age, & to nontrivial extent, mone)
andybaio  law  litigation  money  power  government  copyright  fairuse  2011  paulmison  corporations  corporatism  legalsystem  us  uk  helathcare  via:preoccupations  employment  age  settlements  outofcourtsettlements  shepardfairey  associatedpress  ap  obamahope  jamesduncandavidson  photography  ageism  agism  from delicious
june 2011 by robertogreco
Teaching Copyright
"EFF's Teaching Copyright curriculum was created to help teachers present the laws surrounding digital rights in a balanced way.
eff  education  learning  creativecommons  teaching  curriculum  legal  ict  fairuse  medialiteracy  copyright  lessonplans 
may 2009 by robertogreco
Spotlight on DML | Renee Hobbs: Toward an End to Copyright Confusion
"Thanks to a coordinated effort by the media literacy community, teachers and students have a guide that simplifies the legalities of using copyrighted materials as a part of the process of building students’ critical thinking and communication skills: The Code of Best Practices in Fair Use for Media Literacy Education. The document helps educators interpret the copyright doctrine of fair use as it applies to the practice of media literacy education. Fair use is the right to use copyrighted material without permission or payment under some circumstances—especially when the cultural or social benefits of the use are predominant. The guide identifies five principles that represent the media literacy education community’s current consensus about acceptable practices for the fair use of copyrighted materials, wherever and however it occurs: in K–12 education, in higher education, in nonprofit organizations that offer programs for children and youth, and in adult education."
copyright  schools  teaching  medialiteracy  fairuse  legal  law 
november 2008 by robertogreco
HOWTO Make online videos without getting sued - Boing Boing
"American University's Center for Social Media has just concluded a long, in-depth project to establish a set of "Best Practices in Fair Use for Online Video." They worked with video makers, legal scholars, eminent sociologists, fans and others to create
video  fairuse  bestpractices  legal  copyright  socialmedia  law  howto  tutorials 
july 2008 by robertogreco
Confessions of an Aca/Fan: "What is Remix Culture?": An Interview with Total Recut's Owen Gallagher (Part One) [part 2: http://henryjenkins.org/2008/06/interview_with_total_recuts_ow.html]
"No matter how far back you go in the origin of a piece of work, you will find ... idea was built on or inspired by the work of someone else before it. I consider remixed videos to be original works. The finished piece is more than the sum of its parts"
via:preoccupations  henryjenkins  youtube  copyright  digitalculture  fairuse  originality  remix  art  creativity  piracy  dj  music  media  video 
june 2008 by robertogreco
Doug Johnson's Blue Skunk Blog - Blue Skunk Blog - Changing how we teach copyright Pt 2
"When there is doubt, err on the side of the user....Shouldn't an educator’s automatic assumption be, that unless it is specifically forbidden and legally established in case law, that the use of materials should be allowed? I believe it should."
informationliteracy  fairuse  education  copyright  teaching  learning  law  legal 
april 2008 by robertogreco
The Subversive View of Copyright ~ Stephen's Web ~ by Stephen Downes
"Terms of Service are not law. We have certain rights (fair use among them) and we ought to be exercising them more. But more to the point, "We should stop wasting our time fussing about this petty ante stuff."
copyright  fairuse  teaching  schools  content  youtube  legal  law  ethics 
april 2008 by robertogreco
Doug Johnson's Blue Skunk Blog - Blue Skunk Blog - The subversive view of copyright
"I say go ahead and download YouTube videos regardless of what the "terms" say. Here is why"
copyright  fairuse  teaching  schools  content  youtube  legal  law  ethics 
april 2008 by robertogreco

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