Category: Uncategorized

Excerpt of a March 8, 2010 video interview with Gwen Pough, CCCC Officer/2010 Program Chair and Associate Professor of Writing, Rhetoric, and Women’s and Gender Studies.  Interviewed by Eileen Schell, Chair of the CCCC Committee on the Status of Women in the Profession and Chair and Director of the Writing Program at Syracuse University, and Collette Caton, Doctoral Student in the Composition and Cultural Rhetoric Doctoral Program at Syracuse University.

Kristin Bivens Self-Interview (Word Document)

Kristin Bivens joined the Committee on the Status of Women in the Profession in 2007.  She is currently a tenure-track instructor at Harold Washington College, one of the City Colleges of Chicago.  Currently, her research interests include: contrapower harassment at two-year institutions and post-Katrina New Orleans (and Gulf Coast).

Start-up Kit for Women’s Lives in the Profession Project (Word Document)

The “Women’s Lives in the Profession Project” builds on the work of feminist scholars Theresa Enos Gender Roles and Faculty Lives (1996) and Women’s Ways of Making It in Rhetoric and Composition (Mountford, Ballif, and Davis).  The Project is intended to cast a wide net to capture the diversity and true spectrum of women’s lives in the profession:  the working lives of women teaching at a variety of institutions and in a variety of different work arrangements; tenure track, non-tenure-track/contingent, administrative appointments, online teaching, TAships, and more.  The Women’s Lives in the Profession subcommittee of the Committee on the Status of Women in the Profession invites women teaching in the field of rhetoric and composition to help us demonstrate the diversity of our work in the field.
 
Our goals for collecting this information are two-fold:

• As per the AAUP call, we want to counter the stereotypical images of professors, in particular the perceptions of the masculine heroic quest narrative that linger despite our field’s critique and attention to it (Brannon, “M[other]:  Lives on the Outside”).
• Moreover, we want to highlight the different options and choices that are available to women and to ask these women themselves–ourselves–to narrate the possibilities and pitfalls of these choices.  Future scholars can find paths to research and learn about here in these narratives, but also learn about patterns of work and productivity from a wide range of institutions.  This work will also give us a clearer picture of the range and variety of women’s work lives in our profession.

Start-up Kit for Women’s Lives in the Profession Project (Word Document)

Carol Mohrbacher, St. Cloud State University

In 2001, the Creative Commons (CC) officially began offering a free set of author-controlled copyright licenses.  These licenses were and are available at the Creative Commons online site.  The Creative Commons originated at Stanford University, although it is now established in Massachusetts.  Lawrence Lessig, one of CC’s founders, describes its purpose as “to build a reasonable [author’s italics] copyright on top of the extremes that now reign” (282).  The “extremes” Lessig refers to resulted from the passage of the 1998 Digital Millennium Copyright Act, which added an additional 20 years to the term of copyright and tightened controls on works of digital production.  Fair Use was no longer guaranteed under the newest copyright code, and the public commons was thus undermined.

CC licenses have spread worldwide, and by 2009, an estimated 130 million CC licenses had been issued (“About History”).  One of the most vigorous examples of this growth comes out of Australia.   The Australian Research Centre and Queensland University of Technology (QUT), under the direction of Professor Stuart Cunningham, began collecting case studies of institutions using CC licenses on the Creative Commons Case Studies Wiki.  The book, Building an Australasian Commons, documents those case studies and is available in pdf format for download on the wiki.  The work sorts case studies into seven areas: sound, democratic change, moving images, visual arts, governmental institutions, the written word, and education and research.  Because my interest lies in the area of digital copyright and its effects on academic authorship I examine the area concerning education and research in determining the level of control the Creative Commons license exerts.

Layers for Analysis

Professor Yochai Benkler’s communication theory of layers provides an effective approach to analysis because it addresses the physical infrastructure, the logical and the content layers in communication.  Examining the three layers will provide insight into the flexibility of CC license with regard to academic authorship.  Benkler describes the layers in the following:

The physical layer refers to the material things used to connect human beings to each other.  These include the computers, phones, handhelds, wires, wireless links, and the like.  The content layer . . . . includes the actual utterances and the mechanisms, to the extent that they are based on human communication rather than mechanical processing for filtering, accreditation, and interpretation.  The logical [or code] layer represents the algorithms, standards, ways of translating human meaning into something that machines can transmit.  (392)

Take a presentation at a CCCC conference, for example.  The physical layer would include the room in which that presentation takes place and the computer and screen on which information is projected that supports the presentation.  The content layer is the presentation itself including the words, ideas, and images that communicate the ideas.  The language spoken is the logical or code language, as is the binary system that is the language of the computer which projects the PowerPoint.  Any one of the three layers may be controlled and may affect the other two layers. The following section uses the layered approach to examine three cases studies in the section, “Beyond the Classroom: Education and Research Case Studies,” in Building an Australasian Commons.  Each selected case study uses a different version of Creative Commons license.

Case 1

The first case concerns the licensing practice of Queensland University of Technology (QUT), specifically the Faculty of Law in Brisbane.  QUT is the home of the ccClinic, the research arm of the Creative Commons in Australia.  This organization acts as an information and research site for the campus community, as well as the Australian community at large.  The Clinic also acts as a site that fosters “a more traditional research stream” (167).  Two works produced by the facility are covered by different versions of the 2.5 Creative Commons license.  The anthology titled, Open Content Licensing: Cultivating the Creative Commons, published online is covered by the CC Attribution-Noncommercial-No Derivative Works 2.5 Australian license.  The CC Attribution 2.5 license protects the second work, the online report, Unlocking the Potential through Creative Commons: an Industry Engagement and Action Agenda.

For the online anthology, the CC Attribution, Noncommercial-No Derivative Works is restrictive at two layers. At the physical infrastructure layer, no restriction exists.  Anyone who has a computer may access the online book.  At the content level both commercial and non-commercial users have access to the content, but are restricted from altering the work in any way.  For commercial users, content also may not be used for profit.  Yochai Benkler explains that the logical or code layer “represents the algorithms, standards, ways of translating human meaning into something that machines can transmit, store or compute, and something that machines process into communications meaningful to human beings” (392).  Therefore, one might also argue that that a derivation might include, for example, a translation into another computer language, with firewall or cut and paste prevention code added.  The license restricts such derivation.

The online report is covered by the much less restrictive CC Attribution 2.5 license.  This type of license allows both commercial and non-commercial users to use the works for profit or not, as long as the creator is credited.  Users may also create derivations of the original work.

In other words, both the physical infrastructure and the logical layer are uncontrolled.  However, the mandatory author attribution restricts the content area to a small degree.

Case 2

IMERSD (Intermedia, Music, Education, and Research) is a project of the Conservatorium of Music at Griffith University in Brisbane, Australia.  IMERSD is wide ranging, including, but not limited to film school and music partnerships, broadcasting projects, CD and DVD recording, and other interdisciplinary and industry collaborations. The creative products of IMERSD are licensed under the Attribution–NonCommercial-NonDerivatives 2.5 Australian Creative Commons License.  This means that the creative work protected by this license can be copied, distributed and transmitted, as long as the work is not altered or transformed in any way and  as long as the work is attributed to the author.  In addition the work can only be used for non-commercial purposes.

The license provides little control at the physical infrastructure level. Because the works are limited to non-commercial purposes, some venues, like a neighborhood movie theater for example, are prevented from using the works for profit.  At the content level, manipulation of the work is prohibited, so some control is also exercised.  For example, creating a mash-up with bits of  licensed IMERSD music or film, is not allowed.    However, use of the whole and unmanipulated work is allowed, as long as authorship is attributed.  At the logical layer, again the user may reproduce the code, as long as it is not changed, added to or manipulated.  The license overall opens up access for free academic authorship, but the work cannot be altered in any way.

Case 3

Otago Polytechnic’s CC licensing exerts even less control over the use of its creative products than IMERSD.  Otago provides technical and vocational training to residents of New Zealand.  Their goal in choosing a New Zealand Creative Commons 3.0 license was “to ensure maximum amount of freedom and flexibility to itself and to people and organisations sampling its content” (Cobcroft 177).  Unlike IMERSD, Otago allows commercial use of creative products.  Also, unlike other universities’ work for hire policies, Otago’s policy encourages faculty to own and license their original educational works.  A New Zealand 3.0 CC license also allows the users to adapt or remix the work for their own use.  The only rule is that the work be attributed to the original creator.  This license is identical in its restrictions to the Australian Attribution 2.5 license.

This license provides no control at the physical infrastructure level.  Users are welcome to profit from the borrowed work.  At the content level, the work may be altered in any way, provided that the author is credited.  At the logical or code level, no restrictions exist.  All software is open and its code also maybe be altered for use, provided the creator is attributed.

Final Thoughts

Volume 1 of Building an Australasian Commons: Creative Commons Case Studies provides thumbnail sketches of licensing across professions and disciplines.  Each case study provides an overview of each institution’s creative products and the institution’s motivation for choosing Creative Commons copyright protection.  The Creative Commons wiki, from which the cases are taken, is a necessary companion to  the volume because it supplies license descriptions and a Creative Commons history that enriches the reader’s understanding of the Creative Commons movement.  The book, edited by Rachel Cobcroft provides useful examples to any creator who wants a less restrictive and more flexible option to traditional copyright protection.

In 2001, the same year that the Creative Commons was born, Lawrence Lessig’s book, The Future of Ideas: the Fate of the Commons in a Connected World, was published. In the book, Lessig made a strong case for copyright reform because of what he saw as a shrinking free public commons and increasingly regulated digital technology.  He warned that “We move through this moment of an architecture of innovation to, once again, embrace an architecture of control—without noticing, without resistance, without so much as a question” (268).   Thanks to Lawrence Lessig, Yochai Benkler, Australia’s Brian Fitzgerald and others, we now notice, resist, and question traditional controls and this books illustrates that we have other options.

Works Cited

“About History.”  Creative Commons.  Wiki. 15 Feb. 2010. Web.

Benkler, Yochai.  The Wealth of Networks: How Social Production Transforms Markets and Freedom.  New Haven:  Yale UP, 2006. Print.

Cobcroft, Rachel, ed.  Building an Australasian Commons: Creative Commons Case Studies. Vol. 1.  5 Jan. 2010. Web.

Lessig, Lawrence.  Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity.  New York: Penguin, 2004. Print.

—.  The Future of Ideas: The Fate of the Commons in a Connected World.  New York: Random House, 2001.  Print.

Charles Lowe, Grand Valley State University

Introduction

For those of us interested in creating and sharing open education resources such as course syllabi, assignments, or instructional readings, an important consideration is how to license the content for use by students and other teachers. Copyright, even with fair use determinations (which, as most teachers are aware, can be difficult to know when and how to apply), grants few rights to others for using a work. For most educators, the “flexible copyright” of Creative Commons (CC) licenses is undoubtedly the easiest way to extend copyright privileges. A CC license can allow the user to copy, to redistribute, and—if the content creator desires—to transform or modify the work. Interested in licensing something you have created? Visit the CC “License Your Work” web page, and it will ask you a series of questions about how you might like others to be able to use your work. CC then recommends one of a set of licenses they have created that gives those permissions.  Because a legal license can be difficult to read and understand, CC also provides a human-readable deed to attach with the work or provide a link to which clearly defines the usage rights.

Or, at least, that’s the principle behind the deed. One of the most popular restrictions included with CC licenses is a Non-Commercial (NC) clause.  The deed vaguely defines non-commerical as, “You may not use this work for commercial purposes” (“Attribution-Noncommercial 3.0 Unported”). Does this mean that the character of the use cannot be commercial (e.g., selling the work for profit)? Or is it that a company or other commercial entity cannot use the work at all? Can a non-commercial organization, such as college or university, profit from the work? What about recovering costs of producing a copy of a work to redistribute it even when profit will not be made? While the legal code in the license itself is a little more specific, it does not assist much in defining what is a non-commercial use:

You may not exercise any of the rights granted to You in Section 3 above in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation. (“Attribution-Noncommercial 3.0 Unported”)

Regardless of whether or not content users try to read the legal code (we can imagine that the average Internet user is unlikely to do so) or simply follow the deed, non-commercial can obviously be interpreted in many ways. In order to gain insight into what creators of NC licensed works and users of those works believe constitutes non-commercial use, CC commissioned an in-depth research study. They then reported their findings in September of 2009 in “Defining ‘Noncommercial’: A Study of How the Online Population Understands ‘Noncommercial Use.’” Because many educators may want to choose the NC restriction when licensing content, the following will briefly provide some of the details of CC’s study and discuss how those findings might influence how and when educators choose to use the CC NC clause.

Highlights of the Study

In 2008, CC hired “Netpop Research, LLC, a market research firm” to conduct the study (20) using funding provided by the Andrew W. Mellon Foundation (8). CC had “two main goals” for this project:

1. “to undertake an empirical study that would survey variations in the online U.S. general population’s understanding of the terms ‘commercial use’ and ‘noncommercial use,’ when used in the context of the wide variety of copyrighted works and content made available on the Internet; and
2. to provide information and analysis that would be useful to Creative Commons and to others in understanding the points of connection and potential disconnection between creators and users of works licensed under Creative Commons ‘NC’ or other public copyright licenses prohibiting commercial use” (18).

To achieve these goals, Netpop conducted an empirical study of a targeted sample of ninety content creators and content users in the U.S. using focus groups and surveys, and more informally, collected additional information through a self-selected public Internet poll of 3,337 creators and 437 users in the CC global community  (23-27).

In the empirical study, the qualitative data collected in the focus groups was used to construct the surveys given to the target sample group and the CC global community. To do so, the focus groups created a list of factors by which they would evaluate whether or not a use was non-commercial. Focus groups of content creators came up with the following list, which was then discussed and approved in the content user focus groups without amendment:

• “Perceived economic value of the content
• The status of the user as an individual, an amateur or professional, a for profit or not-for-profit organization, etc.
• Whether the use makes money (and if so, whether revenues are profit or recovery of costs associated with use)
• Whether the use generates promotional value for the creator or the user
• Whether the use is personal or private
• Whether the use is for a charitable purpose or other social or public good
• Whether the use is supported by advertising or not
• Whether the content is used in part or in whole
• Whether the use has an impact on the market or is by a competitor” (31).

If one were to use this list of factors, determining whether a use is non-commercial would appear to be no easier than applying the four-factor fair use test for determining copyright infringement. To better understand how content creators and users would apply these factors of non-commercial use in specific “use scenarios,” participants in both the target sample group and the CC online community completed a survey in which they answered questions to provide profile data, evaluated “possible gatekeeping factor” statements, and completed anchor point exercises (52-55). While the surveys given to all participants were similar, some questions were changed to explore the different experiences of creators and users, as well as the depth of understanding of CC itself and the NC license text by the CC online community (27).

Surprisingly, the findings indicate many similarities between how creators and users understand noncommercial use. For example,

creators and users generally consider uses that earn users money or involve online advertising to be commercial, while uses by organizations, by individuals, or for charitable purposes are less commercial but not decidedly noncommercial. Similarly, uses by for-profit companies are typically considered more commercial. (11)

When money is not a factor, both groups had more trouble determining whether or not the use was noncommercial. Where the groups did differ is their particular leaning toward commercial or non-commercial. Content creators were more likely to view a use as non-commercial than users were. Except in the case of “uses by individuals that are personal or private in nature. Here, it is users (not creators) who believe such uses are less commercial” (11).

Implications for Using the Non-Commercial Clause

While intellectual property scholars will certainly find much more in the report to review—including a few specific results related to education —what should the educator-as-content-creator/user take away from this study for her understanding of when and how to use the NC clause in CC licenses? CC suggests that, because the findings are inconclusive due to the sample sets, the best use of the results is as a “rule of thumb” (79). When licensing a text with the NC clause, be prepared that not all users will follow a strict “conservative definition of noncommercial,” and when it’s not clear if using an NC licensed text will be used in a non-commercial way, “find a work to use that unambiguously allows commercial use (e.g., licensed under CC BY, CC BY-SA, or in the public domain), or ask the licensor for specific permission” (79).

That is reasonable advice, but something that probably could have been surmised prior to the study. And it does not address the potential consequences of the ambiguity of the term non-commercial. One of the most vocal critics of the NC clause is David Wiley, a leading expert on licensing educational content . In his fictional history, “2005-2012: The Open CourseWars,”   Wiley describes the major discrepancy in the license: is the use constraint defined by the character of the use or the user (248-249)? In Wiley’s narrative, commercial publishers play upon this issue by anthologizing NC licensed educational content, and when sued in court, they counter sue and have the NC clause invalidated (249-250). As Wiley explains, CC licenses are written such that a ruling eliminating one clause would not invalidate the whole license; nevertheless, every NC licensed work would be instantaneously available for all types of commercial use (250).

Now, Wiley could potentially have a bias against the NC clause because of his executive position with Flat World Knowledge, a commercial organization specializing in the production of open textbooks (“Our Team”). But let’s assume his prediction is possible. How should that influence our choices about selecting CC licenses? Wiley recommends that educators could best protect their content by using the Share-Alike (SA) clause (251). The SA CC licenses are a type of copyleft license. Copyleft allows derivative works, yet also require anyone that modifies and/or redistributes the work to include the same license. This is similar to the GNU General Public License used by many open source software projects, including the operating system Linux. With a copyleft license, the potential commercial exploitation of intellectual property is much less; anyone who legally obtains the software or text can modify or it or give it away themselves. Profit has to be made, then, off the services sold in association with the item, not the item itself, because the work can be given away for free by the first person that purchases it. Even with or without the inclusion of an NC clause, many open education advocates recommend SA over other CC licenses which forbid derivative works because re-purposing the content can be helpful to education. Selecting this license would, for instance, allow the content to be redesigned with different formatting or modes and/or translated into different languages.

Finally, one other consideration for NC license adoption could be for the content creator to provide written clarification. MIT’s OpenCourseWare project includes an addendum to the CC license on their “Privacy and Terms of Use” web page. The document specifies that “determination . . . is based on the use, not the user;” it forbids users to “directly sell or profit;” and it allows for the “recover[y] of reasonable reproduction costs.” Perhaps this is a good strategy for large projects sponsored by institutions and organizations. But most individual content creators—including educators—choose Creative Commons licenses because the licenses are easy to implement, and because they don’t know how to write up clear—and legal—conditions of use.

One Final Consideration

Given the potential disparity between how a content creator might want non-commercial to be defined, and then how the user defines it and uses the work, it is worth considering CC’s advice in their report that the creator evaluate “the potential societal costs of a decision to restrict commercial use” (79). The use of the NC clause may discourage people from using the work in a way that the creator had intended it to be used, resulting in what CC describes as “failed sharing” (79). And it is also worth noting that there are no open source software licenses with a non-commercial clause. One can argue that open source software projects are successful because they are maximally “open,” and an NC clause with an open source license would reduce that. Linux certainly owes much of its success to commercial support from companies such as IBM, RedHat, and Novell, to name a few. Perhaps open education might enjoy similar success when the textbook publishers and other media providers are no longer our competitors, but our fellow collaborators.

Works Cited

“Attribution-Noncommercial 3.0 Unported.” Creative Commons. Web. 1 March 2009.

Creative Commons. “Defining ‘Noncommercial’: A Study of How the Online Population Understands ‘Noncommercial Use.’” Creative  Commons Wiki, 2008. Web. 1 March 2009.

“License Your Work.” Creative Commons. Web. 1 March 2009.

“Our Team.” Flat World Knowledge. Web. 2 March 2009.

“Privacy and Terms of Use.” MIT OpenCourseWare. Web. 1 March 2009.

Wiley, David. “2005-2012: The Open CourseWars.” Opening Up Education: The Collective Advancement of Education through Open Technology, Open Content, and Open Knowledge. Eds. Toru Iiyoshi and M. S. Vijay Kumar. Cambridge: MIT Press, 2008. 245-259. Print.

*****

1 The various licenses are described at http://creativecommons.org/about/licenses/.

2 CC explains that “approximately two-thirds of all Creative Commons licenses associated with works available on the Internet include the NC term” (17).

3 The report refers to the online community group as Creative Commons Friends and Family (CCFF) (27).

4 For example, distribution of “free educational materials” by a “for-profit company” is seen as more commercial than a “public, not-for-profit school use for fund raising” (Appendix 5.6-61).

5 Wiley created an Open Content license in 1998 prior to the existence of Creative Commons (the license has since been “retired” by Wiley in favor of using Creative Commons licensing).  The license can be viewed at http://opencontent.org/opl.shtml.

6 Wiley’s chapter is freely available online at http://mitpress.mit.edu/books/chapters/0262033712chap16.pdf.

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 

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Art History 

Canadian Historical Review 

Christianity and Literature 

College Literature 

College Student Journal 

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Critical Studies in Mass Communication 

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European History Quarterly 

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International Journal of Language & Communication

International Journal of Psychotherapy 

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Modern Language Quarterly 

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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.