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In early May, 2009, Martine Courant Rife, JD, PhD, a writing professor at Lansing Community College, a recent graduate of the Doctoral Program in Rhetoric and Writing at Michigan State University, and an active member of the CCCC’s IP Caucus, flew to Washington D.C. to testify in the DMCA (Digital Millennium Copyright Act) tri-annual rulemaking hearings. In her testimony, Rife drew on the study she’d recently completed which examined the ways in which copyright law did/did not influence digital composing practices. She specifically looked at whether copyright law chilled the speech of U.S. writing students and their teachers. In her D.C. testimony, Rife requested from the copyright office, an exemption from the anti-circumvention provisions of the DMCA for educators and their students, specifically composition teachers and students. The exemption Rife outlined for the rulemaking panel, would permit both writing teachers and their students to circumvent the CSS encryption that comes standard with most DVD discs. Circumvention would allow teachers and students to take clips of popular movies and other media in order to teach, and create remix writing such as cultural critiques via the montage or remix. Many other educational stakeholders appeared at the hearings and in support of an educational exemption, as did many representatives of corporate media stakeholders such as the MPAA (Motion Picture Association of America) and the RIAA (Recording Industry Association of America). Corporate media stakeholders offered counter-arguments to the educational community’s request for an educational exemption.

A existing educational exemption is set to expire once the Register of Copyright’s final recommendations are issued this year. At the 2006 hearings, University of Pennsylvania film studies Prof. Pete DeCherney successfully argued for the adoption of the following exemption, specific only to “film studies” teachers:

“Audiovisual works included in the educational library of a college or university’s film or media studies department, when circumvention is accomplished for the purpose of making compilations of portions of those works for educational use in the classroom by media studies or film professors.”

Rife and a number of other educational stakeholders argued for an expansion of DeCherney’s 2006 exemption.

The D.C. hearings endured for three days and were followed by an extended written question and answer period during the summer months. Hearings were also held in Palo Alto, California.

While the Register of Copyright’s formal Recommendations for possible educational exemptions to the DMCA’s anti-circumvention provisions were due at the end of October, 2009, the U.S. Copyright Office announced that it was taking an extension in making its final decision. The recommendations, which will determine whether or not an exemption for educators from the harsh anti-circumvention provisions of the DMCA will be permitted, should be issued any day. Please watch the Inbox postings for further information on this issue.

For information in general on the DMCA hearings, or to review Rife’s testimony or her filed responses, please visit http://www.copyright.gov/1201/. Any additional questions can be directed to Dr. Rife.

Intellectual Property Reports Main Page

 

This statement provides the resolution on language, affirming students’ right to “their own patterns and varieties of language — the dialects of their nurture or whatever dialects in which they find their own identity and style” that was first adopted in 1974.  The statement also includes as explanation of research on dialects and usage that supports the resolution, and a bibliography that gives sources of some of the ideas presented in the background statement; besides offering those interested in the subject of language some suggested references for further reading. The publication of this controversial statement climaxed two years of work, by dedicated members of CCCC, toward a position statement on a major problem confronting teachers of composition and communication: how to respond to the variety in their students’ dialects.

Read the full statement, Students’ Right to Their Own Language (April 1974, reaffirmed November 2003, annotated bibliograhy added August 2006, reaffirmed November 2014)

You may not employ the term “fair use” very often but, if you are a communication, English, or writing teacher, you probably engage or enable it on a regular basis.  Never before have copyright and Intellectual Property laws been so much a part of our classrooms and the writing lives of our students.  And no wonder.  When copyright terms go up 11 times in 40 years – without any real movement forward in our understanding of “authorship” and how technology affects it – we have a difficult problem to address: infinite possibilities to create, but seemingly limited permission to do so.

Turning to the words of existing copyright law brings no real comfort.  In fact, if you read the most recent iteration of the Copyright Office’s definition of “Fair Use,” you may be tempted to claim that fair is foul:

The distinction between fair use and infringement may be unclear and not easily defined.  There is no specific number of words, lines, or notes that may safely be taken without permission.  http://www.copyright.gov/fls/fl102.html

Is it precisely this kind of language that can hinder the kind of creative remix that helps us to be generators of knowledge rather than passive consumers of information.  Lawrence Lessig has called this the battle between “read-write” culture and “read only” culture, and it is a battle fought daily in our classrooms.  As educators, and as creators of knowledge through writing, we need to find a way to “hover through the fog and filthy air” of copyright law and understand fair use in a way that catalyzes creativity and “promotes the progress of science and useful arts,” which is precisely what the creation of copyright was designed to do.

But the purpose of this month’s IP report is not to bemoan the state of what Lessig calls “federal culture policy” and call for its deregulation.  Instead it is a place to find resources and current research on “fair use” that will help you as educators and scholars.  What follows here is a short list of current resources that will help you better understand and use (instead of being used by) “Fair Use.”  We hope you will find them useful.

• Renee Hobbs’ article “Best Practices Help End Copyright Confusion” in the March 2009 Council Chronicle is what inspired this IP report.  In it, she highlights the vast amount of research she has done on copyright and media literacy and, most importantly, she shows how we can use the research she has done to better “unleash the creative power of digital media for teaching and learning.”
• The Code of Best Practices in Fair Use for Media Literacy Education was adopted by the NCTE Executive Committee in November of 2008 and was created by The National Association for Media Literacy Education (NAMLE), The Student Television Network (STN), The Media Commission of NCTE, The Action Coalition for Media Education (ACME) and the Visual Communication Division of the International Communication Association (ICA).  The Code provides comprehensive information without creating confusion and addresses the more complex pedagogical and philosophical questions of fair use in very practical terms.  As Renee Hobbs notes in “Best Practices”, “the Code helps educators to gain the confidence needed to make their own careful assessments of fair use. [This, in turn, can help] students make such determinations for themselves when they use copyrighted materials in their own creative work.”
• Want to take a break from reading for a while?  Check out the archived NCTE Web Seminar You Can Use Copyrighted Materials: Conquering Copyright Confusion which is available for purchase from the NCTE On Demand webpage.  This seminar addresses key questions about copyright by highlighting ways to use The Code of Best Practices for Fair Use in Media Literacy Education.
• http://www.centerforsocialmedia.org/resources/fair_use
  Don’t let this single link fool you.  You are only one click away from a treasure trove of resources, courtesy of The Center for Social Media in the School of Communication at American University.  You can listen to the director, Pat Aufderheide, discuss the issues surrounding fair use; you can browse the linked publications (which includes a link to The Code of Best Practices for Media Literacy Education); you can check out the “Fair Use Classroom Tools” section for some ideas about how to incorporate fair use scenarios into your classroom or how to include fair use language in your course syllabi; and, if that isn’t enough, you can choose from a variety of additional resources for more information, including a wide variety of videos.  An amazing one-stop-shop for fair use queries.

Submitted by Traci Zimmerman – Associate Professor
The School of Writing, Rhetoric, and Technical Communication; James Madison University
Junior Chair; IP Caucus

Intellectual Property Reports Main Page

Traci A. Zimmerman, James Madison University

Writing with any measure of clarity (or certainty) about current copyright law presents quite a challenge because it is a moving target.  Copyright terms have gone up eleven times in the past 40 years: existing copyrights were extended by 19 years in 1976 (The Copyright Act), and both existing and future copyrights were extended by 20 years in 1998 (The Sonny Bono Copyright Act).  What is interesting is that copyright regulation has grown stronger in an age where digital technology would challenge and radically redefine what a “copy” can mean.  I think it appropriate that Shakespeare would write his famous line “What’s past is prologue…” in a play focused on the “tempest” of the New World.  Our copyright past is only a prologue to the digital frontier, and the degree to which it foretells plight or possibility may lie in our own hands.

What is an Orphan Work?

An “Orphan Work” is a copyrighted work (book, film, photograph, music, record, etc) whose author/owner is unknown.  The Orphan Work problem is the logical product of an “opt-out” system of copyright.  Lawrence Lessig, in his Google video posting “Against the Current ‘Orphan Works’ Proposals”ⁱ explains the orphan works problem as one that necessarily occurs in the “radical” shift from the “opt in” system of copyright first articulated in 1790 to the “opt-out” system that was ushered in with the 1976 Copyright Act.   Before 1976, copyright was an “opt in” system: if you wanted copyright protection, you registered for it.  With the 1976 Copyright Act, the law was changed to an “opt-out” system: as soon as you create an “original, fixed” work, you get copyright protection automatically, even if you don’t necessarily need or want it, which lasts (effectively) “forever.”  This is more than just a change in law, it is a change in the way we understand the Public Domain: the 1976 act “flipped us from an environment in which most works defaulted to the public domain to one in which all [works] were born copyrighted.”ⁱⁱ

The Orphan Works Problem and Its Implications

On March 13, 2008, Marybeth Peters, the Register of Copyrights, appeared before the House Judiciary Subcommittee on Courts, the Internet, and Intellectual Property to identify the scope of the Orphan Works problem.  Her information came from a comprehensive investigation conducted by the Copyright Office in 2005; this investigation invited feedback from “average citizens” to “scholars” and was compiled in a study entitled Report on Orphan Works published in 2006.  This report “documents the nature of the Orphan Works problem as synthesized from the more than 850 written comments…and the various accounts brought to [the attention of the Copyright office] during three public roundtables and numerous other meetings and discussions.”ⁱⁱⁱ

What is striking about the findings of the Copyright Office reports how far the Orphan Works problem extends.  Peters notes that the Copyright Office heard from “average citizens who wished to have old photos retouched or repaired, but were denied service by photo shops [because]…under the current law, the photographer, not the customer, holds the copyright in the photograph [and] of course the customer has no idea who the photographer at his parents’ wedding was.”^iv  This very localized problem becomes nationalized when “museums who want to use images in their archival collections [or] documentary filmmakers who want to use old footage” are denied access on similar grounds.  But the problem of Orphan Works extends even into projects that do not yet exist:

When a copyright owner cannot be identified or is unlocatable, potential users abandon important, productive projects, many of which would be beneficial to our national heritage.  Scholars cannot use the important letters, images, and manuscripts they search out in archives or private homes….Publishers cannot recirculate works or publish obscure materials that have been all but lost to the world.  Museums are stymied in their creation of exhibitions, books, websites, and other educational programs, particularly when the project would include the use of multiple works.  Archives cannot make rare footage available to wider audiences.  Documentary filmmakers must exclude certain manuscripts, images, sound recordings, and other important source material from their films.^v

What is lost here is completely antithetical to the original aims of copyright.  Lawrence Lessig reminds us (as he so often and aptly does) that the framers of the Constitution advocated that by “securing for limited times to authors and inventors the exclusive right to their respective writings and inventions” we could “promote the progress of science and useful arts.”^vi  The ultimate goal of copyright protection is to encourage innovation to promote progress; that is, by giving creators “exclusive rights” for a “limited time,” both the creator and the country would benefit from their labors.  The Orphan Works problem illuminates the problems that come with a copyright system that has grown far beyond its original “limited time, exclusive right” protection and now serves to protect the millions of copyright ownerswho may never have wanted protection in the first place.  As Peters emphatically notes in her report to the House subcommittee, “if there is no copyright owner, there is no beneficiary of the copyright term and it is an enormous waste.”^vii

Possible Solutions?

The problem of Orphan Works is not a new problem, it just gained a new sense of urgency.  The Copyright Office’s request for feedback about Orphan Works in 2005 catalyzed many detailed reports from those most affected by the problem, such as the College Art Association, the Library Copyright Alliance, and the Duke Center for the Study of the Public Domain (who wrote a report about the problem of access to Orphan Films).^viii  But other reports emerged as well.  From NPR stories, and Op-Eds in the New York Times, to blog postings and YouTube rants; there was no shortage of opinions about what should (and shouldn’t) be done to solve the problem.  And after the Report on Orphan Works was published in January of 2006, the debate about possible solutions to this problem was well underway. 

Part of the reason for the urgency is that on September 27, 2008, the Senate unanimously passed S. 2913 — The Shawn Bentley Orphan Works Act of 2008 — a bill designed to “provide a limitation on judicial remedies in copyright infringement cases involving orphan works.”^ix  In brief, the bill “attempts to create a system where new creators can use old works without fear of massive lawsuits, provided that a good faith effort has been made to find out if the work in question is copyrighted [and, if so, to obtain permission to use the work].^x

To some, the solutions contained in this bill were important first steps to solving the problem of orphan works; to others, the bill represented a more sinister purpose.  The fact that the bill was named after a former aide to Senator Orrin Hatch who helped write major IP bills (like the Digital Millennium Copyright Act) and then left to become Time Warner’s Vice President of Intellectual Property and Global Public Policy can seem a salient fact when coupled with the observation that the bill seems to shift the “burden” of proving copyright to the owner, instead of the infringer (not a problem for large corporations, to be sure, but a real problem for everyone else). 

But aside from symbolic conspiracy theories and devil-in-the details wrangling with the mess that is our current copyright law, there are some profound philosophical questions that need to be addressed. How much of our current (mis)understanding of Intellectual Property comes from “our cultural shift from an understanding of creativity as something indelibly individual…to the post-modern sense of a more collective creativity”?^xi  Can we solve the Orphan Works problem the same way it was created: with additional government regulations?  

Mark Dery sums up the practical problems of the Orphan Works Act in an end of the year article for Print magazine:

As written, the OWA won’t solve anything.  With its impossibly vague talk of “reasonable compensation” and “diligent” searches, its fundamentalist faith in the private sector (commercial registries) and technological quick-fixes (image-search technologies), the OWA is, as Lessig argued on his blog, a bill that both “goes too far, and not far enough.” Too far because the weasel phrase “reasonably diligent search” will provide legal cover for unwitting—as well as willful—infringers of copyrighted works that have washed up on the web without identifying information, yet are not listed in commercial registries. Not far enough because the line the OWA draws in the sand between a good-faith effort to determine the copyright status of a putatively orphaned work and intentional infringement is, in Lessig’s wonderfully pungent phrase, “just mush.”^xii

And “mush” it is.  The Orphan Works act was referred to the House on September 27, 2008, but because the House had much bigger, much more urgent National problems to address, no action was taken on H.R. 5889.  It has effectively become an orphan work of the 110thCongress.  In many ways, the Orphan Works Act of 2008 is a true Intellectual Property “development”, not in the sense of coming to any conclusions, but as a prologue to a much larger conversation, one that we should be inclined to join.

_____________________________________________________________________

ⁱ  Lawrence Lessig.  “Against the Current ‘Orphan Works’ Proposals.” Google Video Post.  2007. http://video.google.com/videosearch?hl=en&rls=com.microsoft:enus&q=lessig%20and%20orphan%20works&um=1&ie=UTF-8&sa=N&tab=wv#

ⁱⁱ  Siva Vaidhyanathan.  Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity. QTD in MarkDery’s “Does the Orphan Works Bill Mean Copyright Chaos?”  Print: Design, Culture Comment.  December 2008.   http://www.printmag.com/design_articles/orphan_works/tabid/419/Default.aspx

ⁱⁱⁱ  Statement of Marybeth Peters, The Register of Copyrights, before the Subcommittee on Courts, the Internet, and Intellectual Property, Committee on the Judiciary.  United States House of Representatives, 110th Congress, 2ndSession.  March 13, 2008.  “The ‘Orphan Works’ Problem and Proposed Legislation. http://www.copyright.gov.docs/regstat031308.html

^iv  Marybeth Peters.  Page 1.
 
^v  Marybeth Peters.  Page 1-2.
 
^vi  The United States Constitution.  Article I. Section8. 8. http://www.usconstitution.net/const.html#A1Sec8

^vii  Peters. Page 2.
 
^viii  The full reports mentioned here can be accessed as follows:
College Art Association  http://www.collegeart.org/pdf/caa_orphan_letter.pdf
Library Copyright Alliance  http://www.copyright.gov/orphan/comments/OW0658-LCA.pdf
Center for the Study of the Public Domain, Duke Law, “Access to Orphan Films”  http://www.copyright.gov/orphan/comments/OW0658-LCA.pdf

^ix  S. 2913 “The Shawn Bentley Orphan Works Act.” http://www.govtrack.us/congress/bill.xpd?bill=s110-2913

^x  Nate Anderson.  “New Orphaned Works Act Would Limit Copyright Availability.”  Ars Technica.  April 25, 2008.http://arstechnica.com/tech-policy/news/2008/04/new-orphaned-works-act-would-limit-copyright-liability.ars

^xi  Mark Dery’s “Does the Orphan Works Bill Mean Copyright Chaos?”  Print: Design, Culture Comment.  December 2008. http://www.printmag.com/design_articles/orphan_works/tabid/419/Default.aspx
 
^xii  Dery. Page 3.

Additional References:

Lessig, Lawrence.  “Copyright Policy: Orphan Works Reform” Blog Post, February 7, 2007.
http://www.lessig.org/blog/2007/02/copyright_policy_orphan_works.html

—** “Little Orphan Artworks” The New York Times, Op-Ed, May 20, 2008.
http://www.nytimes.com/2008/05/20/opinion/20lessig.html?_r=1&pagewanted=print

Orphan Works Opposition Headquarters.  www.owoh.org

Peters, Marybeth.  “The Importance of Orphan Works Legislation.”  September 25, 2008. http://www.copyright.gov/orphan

Prager, Nancy.  “Fundamentals of Copyright and the Problem with Lost Owners: Unintended Consequences.”  Blog Post, May 27, 2008.
 http://nancyprager.wordpress.com/2008/05/27/fundamentals-of-copyright-and-the-problem-with-lost-owners-unintended-consequences-part-two/

Ross, Patrick.  “How Long is Long Enough? Copyright Term Extensions and the Berne Convention.”
 Progress on Point.  The Progress and Freedom Foundation.  Release 13.15 June 2006.
 http://www.pff.org/issues-pubs/pops/pop13.15copyright_term_lengths.pdf

Scafidi, Susan.  “Orphan Works and the Adoption Process.” Counterfeit Chic. http://www.counterfeitchic.com/2008/06/post_16.php

Sohn, Gigi.  “The Orphan Works Act of 2008: Copyright Reform Takes Its First Steps.”  Speech presented to the 8th Annual Intellectual Property Symposium, University of Maryland, May 29, 2008. http://www.publicknowledge.org/node/1594

American Historical Review 

American Journalism 

American Literature 

Art History 

Canadian Historical Review 

Christianity and Literature 

College Literature 

College Student Journal 

Columbia Journalism Review 

Critical Studies in Mass Communication 

Design Issues 

The Drama Review 

Eighteenth Century Fiction 

English Literary Renaissance 

English Studies 

English Studies in Canada 

European History Quarterly 

Historical Research 

International Journal of Language & Communication

International Journal of Psychotherapy 

International Journal of the Humanities 

Irish Studies Review 

Journal of American Ethnic History 

The Journal of Architecture 

Journal of Communication Inquiry 

Journal of Historical Sociology 

Journal of Human Behavior in the Social Environment

Journal of Material Culture 

Journal of Men’s Studies 

Journal of Social History 

Journal of Southern African Studies 

Journal of Transport History 

Journal of Victorian Culture 

Modern Language Quarterly 

Modern Law Review  

Nineteenth Century French Studies 

Pacific Historical Review 

Quarterly Review of Film & Video 

Review of Religious Research 

Scottish Journal of Political Economy

Studies in English Literature 

Studies in the Cultural Politics of Education 

Studies in the Novel 

Theatre Topics 

Tourism Geographies 

Western Historical Quarterly 

Wilson Quarterly

Martine Courant Rife, JD, Lansing Community College and WIDE Research Center, Michigan State University

CASE OVERVIEW

On May 9, 2006, in Bill Graham Archives v. Dorling Kindersley, the US Court of Appeals for the Second Circuit upheld the lower court, finding the use of several Grateful Dead Poster images appearing in a band biography was a “fair use” under section 107 of the US copyright statute. In the case, the publisher Dorling Kindersley used without permission seven images of Grateful Dead concert posters or tickets in the book Grateful Dead: The Illustrated Trip (2003). Prior to the book’s publication, the publisher had unsuccessfully attempted to negotiate permissions with the copyright holder, Bill Graham Archives. Due to what the publisher perceived as an unreasonable licensing fee, permission agreements were never reached. Nonetheless, the publisher used the seven images in the book, incorporating them into remixed compositions, consisting of collages mixed with graphic art and textual explanations and commentary. Over 2000 images were used in the book. After the book’s publication, Bill Graham Archives brought suit for copyright infringement, and requested an injunction blocking further publication.

After conducting a careful four factor fair use analysis, the Second Circuit Court of Appeals upheld the lower court’s determination in favor of fair use. The Second Circuit found that with respect to the first factor, purpose and character of the use, the use of the Grateful Dead images was transformative since the images were used in a timeline and for historical purposes rather than for the posters’ original purposes of concert promotion. On the second factor regarding the nature of the copyrighted work, the court acknowledged this factor weighed against fair use because the posters were creative. Yet, the court limited the weight of this factor because the biographical book did not exploit the creative aspects of the posters. On the third factor, amount and substantiality of portion used, the court said that even though entire images were used, their reduced size was consistent with Dorling Kindersley’s transformative use. And finally, on the fourth factor, the court stated that Dorling’s use didn’t harm the potential market because no actual market harm was sustained, and, in this case, the court wouldn’t find market harm based on “hypothetical loss” of revenue.

While some of the pro-fair use discussions within the opinion should likely be approached with caution, the opinion does hold some useful material for educators and writing teachers. Certain guidelines might be extracted from the opinion for use by students creating new media compositions (as well as alphabetic ones), and for teachers in their pedagogies. The opinion upholds the concept that one should use others’ materials thoughtfully and sparingly, but that using entire images is not necessarily prohibited as long as the images are used transformatively, in this case, remixed with graphic art, text, and additional images. More care should be taken by writers who are composing purely “creative” works, in contrast to those who are composing something factual, historical, research based, for criticism or commentary. The opinion supports the view that permission is not always needed. And finally, the opinion brings to life the notion that hypothetically, the percentage of the new work that depends on prior work will prove determinative, even when dealing with purely alphabetic texts (the example given is a text wherein 40% of the total content was drawn from author J.D. Salinger’s letters via quotations and paraphrases). The opinion overall can be said to support using other’s work in remixes, especially when such compositions reflect synthesis of many works, including those of the remix author. According to the opinion, one might plausibly argue that the more synthesis a remix accomplishes, the more likely any uses of copyrighted material it contains will be deemed fair uses.

DISCUSSION OF THE CASE

The case came to the Second Circuit Court of Appeals after a favorable fair use judgment in the lower court, the US District Court for the Southern District of New York. The district court granted summary judgment in favor of the publisher-defendants on their fair use defense. The main question before the second circuit appeals court was to define the scope of copyright protection for artistic posters, subsequently reproduced in reduced size, in a biography of the Grateful Dead. Bill Graham Archives, LLC (BGA) owned the copyrights in the posters, while Dorling Kindersley Limited and its affiliates (DK) published the commercially available biography, in collaboration with Grateful Dead Productions. The 480-page coffee-table-book-biography, Grateful Dead: The Illustrated Trip (Illustrated Trip), was published in October 2003, and told the chronological story of the Grateful Dead via the use of a timeline along with over 2000 images. Throughout the book, images often appeared as remixes, in collage form with other images and graphic art, and throughout the book, explanatory text accompanied the images. Of the 2000 images reproduced in the book, DK used seven BGA owned images that had been originally depicted on Grateful Dead posters and tickets. To be exact, DK used the following images on the following book pages, as recited in the opinion:

1. Concert poster depicting the Grateful Dead, Jefferson Airplane, and Big Brother and the Holding Company at the Hollywood Bowl (p.76);
2. Concert poster of the Grateful Dead, Jefferson Airplane, and Sons of Chaplin at the Winterland Arena (p. 103);
3. Image of both sides of a concert ticket for Fillmore Theatre-Winterland Arena shows (p. 130);
4. Concert poster for Grateful Dead at the Warfield Theater (p. 254);
5. Concert poster for Grateful Dead at the Oakland Coliseum (p. 361);
6. Concert poster for a Grateful Dead show on New Year’s Eve (p. 397);
7. A “fake in-house” poster for a 1993 New Year’s Eve Concert (p. 421).

Prior to publication, Grateful Dead Productions contacted BGA requesting permissions to use the images. BGA responded by offering to allow use in return for BGA’s right to use Grateful Dead concert videos in CD and DVD production. Subsequently, BGA offered licensing of the images for a set licensing fee, one that DK ultimately determined to be too high. Therefore, DK used the images in the book without permission of the publisher, even though licensing was available.

Once the book was published, BGA contacted DK and demanded post-production licensing fees. DK refused, prompting BGA to file suit for copyright infringement as well as an injunction from further production of the book. After applying a four factor fair use analysis to the posters’ reproduction, the lower District Court determined the use to be a fair use. BGA appealed, and the Second Circuit Court of Appeals determined the main question was to review whether DK’s use of BGA’s copyrighted images was a fair use.

Citing Harper & Row, the second circuit noted that such determinations must be made case-by-case based upon the four factors as recited in section 107 of the copyright statute:

1. the purpose and character of the use;
2. the nature of the copyright work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole;
4. the effect of the use upon the potential market for or value of the copyrighted work. (17 USC Section 107)

The court then engaged in a very detailed factor-by-factor analysis of the use, noting first that after weighing “the purpose and character of the use” factor, this factor weighed in favor of fair use. Notably, Illustrated Trip was a biography, while the posters were for concert promotion. According to the court, this created a strong presumption in favor of fair use. In educational contexts, we often hear statements that if a use is non-profit, than it will be presumed to be a fair use, but in this case, the court made clear that if a use is different in nature to the intended use of the original material, that too may create a strong presumption in favor of fair use.

As a counter argument, BGA argued that placing the images along a timeline was not transformative, and that additionally, each image should have had some kind of commentary or criticism in order to be a fair use. The court denied this, noting that a 30 year biography of the Grateful Dead served very different purposes than those of the original posters — concert promotion. The court also noted that biographical use of copyrighted material is frequently supported as a fair use, because it allows for commentary, research, and criticism, as stated in the preamble of section 107, language introducing the four fair use factors. “Remix” wasn’t used in the opinion as a term, however on page 12, the court noted that “. . . to further this collage effect, the images are displayed at angles and the original graphical artwork is designed to blend with the images and text . . .DK’s layout ensure that the images  . . .are employed only to enrich the presentation of the cultural history of the Grateful Dead, not to exploit the copyright artwork for commercial gain.” Still discussing the first factor,  “purpose and nature of the use,” the court listed the exact size of the seven images, and noted that DK’s images amounted to less than 1/20 of the original size (even though entire images were used). Here, the court also noted the percentage of total copyrighted material used within a subsequent text was not determinative, citing Harper and Salinger; neither case found fair use. In Harper, the infringing material was only 13% of the entire copyrighted piece, while in Salinger, 40% of the subsequent work consisted of Salinger’s quoted or paraphrased letters. On the issue of DK’s commercial use of the images, the court noted that BGA’s images were not used to promote the book, and the images’ use was incidental to the commercial biographical value of the book.

With respect to the second, third, and fourth factors (which together took up less than half the opinion, since, as should be obvious, many of these last three factors were addressed when the court examined “purpose and character”), the second circuit agreed with the lower court that the “nature of the copyrighted work” factor weighed against fair use, since the posters were creative in nature. However, the court found this factor of limited use since the posters were not used to exploit their creative nature, but were instead used for historical purposes. On the “amount and substantiality of the portion used” factor, the court acknowledged that entire images were used. Yet, the court decided that entire images had to be used in this instance in order to communicate the history of the band. Reducing the images in this case, was deemed sufficient to overcome the presumption against fair use. Legal scholar Wendy Gordon (see reference below) found the court’s analysis of influence on market value to be most interesting, because here the court held that even though licensing was available, DK could still operate under fair use. Here, the court notes that the book was not commercially successful, but if it had been, it may even have increased the potential market for the posters. Nonetheless, the present use did not supercede the market for the copyrighted work, nor did it serve as a substitute. Citing Campbell, the court stated that “a publisher’s willingness to pay license fees for reproduction of images does not establish that the publisher may not, in the alternative, make fair use of those images” (p.21). In other words, the availability of licensing does not necessarily preclude fair use protections under the statute. The court therefore found in favor of fair use on this factor as well – thus stating that in balancing the four factors, BK’s use of the images was a fair use.

IMPLICATIONS FOR EDUCATORS AND WRITING TEACHERS

Fair use, for a significant period of time, has been of great interest to educators and particularly writing teachers (See for example Herrington, 1998; Kennedy, 2006; Logie, 1998; Reyman, 2006; Rife, 2007; Westbrook, 2006; Walker, 1998). This case provides a very clear four factor fair use analysis that should be helpful to any teacher dabbling in new media composing, either solo, or with their students in the classroom. On a pragmatic level, the opinion itself is clearly written and might provide excerpts or a starting point for further student-generated readings, research, and discussion in the classroom.

As far as its instructive qualities on conducting a fair use analysis, the written opinion itself points to the blurred and overlapping boundaries of the four factors. In its analysis of the first factor, “purpose and character of the use,” the court also considers the nature of the copyrighted work as well as the amount used. Also, while the court notes on page 7 that fair use has often been upheld in biography contexts, the three biography opinions the court cites in the opinion held against fair use (Harper, Salinger, Elvis). Yes, the court cites Campbell, which many assert upheld “fair use” in the context of 2 Live Crew’s parody use of Roy Orbison’s song, “Pretty Woman,” but one must remember that the Campbell court remanded the final decision back to the lower court for a consideration of impact on the copyright holder’s potential market, and so was not really a “holding” in favor of fair use in the strict legal sense. Thus, while it would be nice to hail the Graham Archives opinion as a highly favorable upholding of fair use, the opinion should be approached with some caution.

Even so, there are many fair-use-positives in this opinion. The court clearly described and acknowledged “remixed” compositions, although it doesn’t call the mix of graphic art, text, juxtaposed images, “remix.” This court does acknowledge though that such use, in the right context, can be a fair use, remarkably, even though licensing is available. First noting that ultimately, a second circuit opinion is not a Supreme Court opinion, and therefore will only have precedent within the second circuit (Connecticut, New York, Vermont), we may yet generalize and extract some basic guidelines from the opinion for use in pedagogy, and as suggestions for student remixing. These guidelines might be summarized as follows:

1. If you are going to use another’s copyrighted image, use as little as possible (either in size or in amount) in order to accomplish your own writerly goals.
     
2. Remixing another’s materials with bits and pieces you’ve created yourself, as well as more than one outside author’s work, will make your use more likely to be a fair use. Think synthesis.
     
3. If you yourself are making something purely “creative” (a digital poem, movie, art), and using another’s material that is also “creative,” your use is less likely to be a fair use. But if you are taking a position on an issue, or creating a history or documentary meant to comment and criticize an issue or events, your use may be more likely to be fair even if the copyrighted materials you remix are creative.
     
4. Despite a culture where permission requests are increasingly required (especially via institutional policies), the fair use doctrine does not necessarily require such permission requests.
     
5. Finally, the opinion cites a case where 40% of quoted and paraphrased text came from another’s copyrighted material and notes that this creates a presumption of no fair use – therefore always contemplate your final work regardless of whether it’s pure alphabetic text or new media, and honestly evaluate whether it is truly “your own” work. If citations were done correctly, you may have avoided plagiarism, but even in a pure alphabetic essay, it does not necessarily mean you avoided potential copyright liability. The opinion provides further argument for beginning college-level writers: Most of the final written product, whether pure alphabetic text, or new media, should be your own work.

RELEVANT SOURCES

Bill Graham Archives v. Dorling Kindersley Limited, et al. (2006, May). USCA(2nd Cir.).  http://www.fairuse.stanford.edu/primary_materials/cases/GrahamKindersley.pdf.

Campbell v. Acuff-Rose Music, Inc. (1994). 510 U.S. 569, 583-585. http://supct.law.cornell.edu/supct/html/92-1292.ZS.html.

Elvis Presley Enters., Inc. v. Passport Video. (2003). 349 F.3d 622 (9th Cir.). (Available on Find Law).

Harper & Row, Publishers, Inc. v. Nation Enters. (1985). 471 U.S. 539, 589-90. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=471&invol=539.

Herrington, T. K. (1998).The interdependency of fair use and the first amendment . Computers and Composition, 15, 2, 125-143.

Hunter, R., Stephen, P., Wills, C., & McNally, D. (2003). Grateful dead: The illustrated trip. DK Adult.

Kennedy, K. (2006). Google faces legal challenges in its effort to digitize university library contents. CCCC Online. /cccc/gov/committees/ip/125703.htm.

Logie, J. (1998). Champing at the bits: Computers, copyright, and the composition classroom. Computers and Composition, 15, 201-214.

Reyman, J. (2006). Copyright, distance education, and the TEACH Act: Implications for teaching writing. College Composition and Communication, 58,1, 30-45.

Rife, M.C. (2007, June). The fair use doctrine: History, application, and implications for (new media) writing teachers. Computers and Composition. 24,2. Forthcoming.

Salinger v. Random House, Inc. (1987). 811 F.2d 90 (2nd Cir.). http://www.law.cornell.edu/copyright/cases/811_F2d_90.htm.

US Court of Appeals Circuit Map. http://www.uscourts.gov/images/CircuitMap.pdf.

Walker, J.R. (1998). Copyrights and conversations: Intellectual property in the classroom. Computers and Composition 15, 243-251.

Wendy Gordon speaks about the Graham Archive case. (2006). [link removed]

Westbrook, S. (2006). Visual rhetoric in a culture of fear: Impediments to Multimedia Production. College English 68.5 (May 2006), 457-80.

A conversation with Laurie Grobman, author of “Disturbing Public Memory in Community Writing Partnerships” (18:47).

Laurie Grobman is a professor of English and women’s studies at Penn State Berks. Her teaching, research, and service center on community writing and multicultural education. Primary among this work is the facilitation of community-based undergraduate research projects to (re)write local histories of marginalized ethnic, racial, socioeconomic, and cultural communities in Berks County and the city of Reading, Pennsylvania. Grobman has published two single-authored books and four coedited collections. She has published more than forty articles in peer-reviewed journals and books. Laurie’s continued research on public memory in Reading, PA, involves the 2017 Pulitzer Prize-winning play, Sweat, by Lynn Nottage. The play is set in Reading.

 

 

A conversation with David M. Grant, author of “Writing Wakan: The Lakota Pipe as Rhetorical Object” (11:31).

David M. Grant is associate professor of English and former coordinator of writing at the University of Northern Iowa. His writing has appeared in JAC, PRE/TEXT, and Kairos and in the edited collections, Sustainability: Rhetorics, Literacies, and Narratives by Peter Goggin and Florida by Jeff Rice.

 

 

 

 

 

 

A conversation with Rebecca Brittenham, author of “The Interference Narrative and the Real Value of Student Work” (15:26).

Rebecca Brittenham is an associate professor of English at Indiana University, South Bend. She is the coauthor with Hildegard Hoeller of Key Words for Academic Writers, a dictionary of academic literacy, and she has coedited a reader anthology, Making Sense: Readings for Writers. Her previous research in composition studies appears in College English, JAC, The Journal of Developmental Education, and Excellence in Teaching: Narratives from Award-winning Faculty (forthcoming). A related piece based on graduate student literacy narratives of work is forthcoming in Pedagogy 18.1.

Chris M. Anson
A conversation with Chris Anson, author of “The Pop Warner Chronicles: A Case Study in Contextual Adaptation and the Transfer of Writing Ability” (18:22).

Chris M. Anson is Distinguished University Professor and director of the Campus Writing and Speaking Program at North Carolina State University, where he teaches graduate and undergraduate courses in language, composition, and literacy and works with faculty across the curriculum to reform undergraduate education in the areas of writing and speaking. He has published 15 books and over 120 journal articles and book chapters, mostly focusing on the teaching and learning of writing. He is past chair of CCCC and past president of the Council of Writing Program Administrators.