Fair Use of Images in the Classroom:
How Far is Fair?

by Christine L. Sundt

How far is fair? is a question that begs an answer in the context of information delivery in today’s classroom and in scholarly discourse. Perhaps you fit this profile: A day is incomplete if you haven’t wondered if you are a possible thief, an infringer, a renegade, or a copyright rebel because you have used protected material in the classroom – an image, some music, a movie, a broadcast – without obtaining clearances and permissions. Worse yet, your classroom is not made of bricks and mortar with nice solid walls, but rather it’s online in virtual space and your students expect – no, they demand – that all content be e-ready. But you’ve also been advised that “good citizen educators” follow rules regarding copyright, permissions, and online access that have been carefully (and cautiously) laid down by central administration. You are the first to admit that living by these rules is easier in theory than in practice, especially if bound by many layers of regulation, from the local level all the way up the federal ladder, and none of them make much sense in terms of practicality, timeliness or purpose.

So we have a problem. Rules are rules and it’s our duty as “good citizen educators” to comply. But is it fair to be so restricted? And whatever happened to fair use – that right to use protected materials if certain conditions can be met? This is the territory I will explore today. My goal is to focus on the following: How far can and should one push the envelope of copyright’s fair use privilege? The second question is slightly darker: Is this privilege actually reachable and usable in today’s virtual classroom?

If you are a regular follower of the Committee on Intellectual Property’s sessions at CAA, you have, by now, heard numerous presentations over the years about copyright and fair use, as well as about the public domain, licensing, and artists’ rights under the law. For many years, NINCH, the National Initiative for a Networked Cultural Heritage, directed by David Green, provided us with experts and a forum for your questions and discussion as part of the CAA program. Sadly, NINCH is no more, although the good work of the past is still within reach: the documents from these meetings and sessions – papers, summaries, and transcriptions – are online at www.ninch.org. Here you will discover a wealth of information that should become your library as well as your arsenal.

If by chance you are finding us for the first time, it might be useful to know that the CIP came into the spotlight – or hotlight -- in the early 1990s when the Internet – invented by Al Gore -- was emerging as the powerful and frightening new medium ready to change forever the information landscape. CONFU, the Conference on Fair Use, a response to fears that fair use would be eliminated in the digital world, was our first experience with trying to massage the copyright law into that new and straight-laced digital landscape.[i: See Georgia Harper’s website for an excellent summary of CONFU: http://www.utsystem.edu/ogc/intellectualproperty/confu.htm] What we finally learned at the conclusion of CONFU, two and a half years later, was that ambiguity can be better than clarity – that no guidelines are better than unworkable restrictions and limits. Fair use – that often elusive privilege of the law known for its many shades of grayness – turned out to be better undefined than unnecessarily limited.

The fair use exemption is codified in the Copyright Law, U.S. Code, Title 17, in section 107. This provision, one of several limitations on the rights of the copyright owner, allows a user of lawfully acquired protected materials to make use of these materials without the approval of the copyright owner if certain conditions can be satisfied. The conditions constitute a test, one that evolved over time as a useful tool for determining infringement, codified in the Copyright Law in the 1976 revision. The conditions are:

(Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include) -

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors[ii: See text at http://www4.law.cornell.edu/uscode/17/107.html]

In the classroom, one would assume that since education is such a noble enterprise, whatever we do in the name of promoting the progress of science and the useful arts should be acceptable under the law and permitted without boundaries.[iii: Article I Section 8 | Clause 8 - Patent and Copyright Clause of the Constitution: [The Congress shall have power] "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;"] Unfortunately that’s wishful thinking. Laws are complex, often blending many layers. What may look like copyright issues on the surface often turn out to be laced with license and contract law as well as property and even personality rights. Therefore asking what is fair under copyright is unfortunately only a small part of the larger question. Let me provide an example.

Suppose you want to post your lecture on the web so your students can review it to prepare for their exam. Of course, you will want to include the images you scanned from your department’s slide collection or from books in the library. Some of the other images are your own -- shot on site while doing research -- while other came from the web – from websites whose owners you don’t know but who have made access simple and seemingly unrestricted (you can still right-click and download!). Some of these images must surely be long past copyright restrictions, if copyright even applies. That image of Mona Lisa can’t still be under Leonardo’s copyright – but can the Louvre claim rights – or does the right belong to Jean-Paul somebody who took the picture and posted it on the web? And that slide you took of the Leaning Tower of Pisa. The architect’s heirs surely can’t make a claim! But what about that sign in the piazza, the one with a camera and a slash through it? Can they really forbid you from taking a picture of something so famous, so critical to the study of architecture? And then there’s that new building by Frank Gehry right here in Seattle.[iv: Located at 325 5th Avenue North Seattle WA USA 98109.] You can get really wonderful pictures of the building – it’s so photogenic! And there were no signs down the street telling you not to shoot. These are, after all, the images you need for your lectures and some, perhaps, for your next scholarly publication!

I said the law is complex and that’s hardly an exaggeration. Fair use probably allows you to take and use all of the images in this example in your brick-and-mortar lecture but it may be less bending once you post those images on a wide-open website or submit them to your publisher. Tip No. 1: better that your website be limited to your students than open to the whole world. Scanning slides in your department’s slide collection may be simple to do but if the slides were purchased from a vendor who now sells digital images and the original agreement was that no copies or reproductions be made, then perhaps you are violating a contract rather than infringing copyright. Some images, like the Mona Lisa, may not be bound under copyright because they are comfortably in the public domain, with an added benefit of recent case law. The Bridgeman v. Corel case disallows copyright protection on factual and exact reproductions of two-dimension artworks that are squarely in the public domain.[v: BRIDGEMAN ART LIBRARY, LTD. v. COREL CORP., 36 F. Supp. 2d 191 (S.D.N.Y. 1999) at http://www.law.cornell.edu/copyright/cases/36_FSupp2d_191.htm] Although this decision is binding only in the southern district of NY, it is a powerful enough precedent to be influential in other jurisdictions. This decision affirms that no new copyright can be claimed on copies where nothing original has been added. Jean-Paul somebody’s assertion of rights in that image of Mona Lisa should be questioned. So, too, might the Louvre’s claim of rights, though once again, we are dealing not with copyright but rather with matters of ethical practices when we request the use of their most superior reproduction and pay the fees to reproduce it. Copyright is not at fault for having to beg museums to use images of public-domain artwork and pay a price, too. Rather this is a contract and a license situation that requires negotiation.

The Leaning Tower of Pisa is also a work that is safely outside of copyright. However, it is still controllable under other branches of the law, including international treaties,[vi: Especially, the Berne Convention Implementation Act of 1988, Pub. L. No. 100-568, 102 Stat. 2853, enacted October 31, 1988 and the Uruguay Round Agreements Act, Pub. L. No. 103-465, 108 Stat. 4809, 4973 (amending, inter alia, §104A, title 17, United States Code, and adding a new chapter 11), enacted December 8, 1994.] and the Italian government is doing its best to keep its cultural heritage under Italy’s thumb – or foot.[vii: As reported by Maureen Burns: “I have had little success in tracking down the precise published reference that many believed to be humor - copyrighting Tuscany. Yet, I have contacted everyone in association with the e-mail exchange on the listservs and traced the information to a BBC World Services broadcast on the morning of April 4th, 1997. It was reported that an administrative official in Tuscany stated that he wants to copyright the surrounding landscape to prevent commercial exploitation by non-Tuscan companies promoting products unrelated to the area. He argued that the Tuscan landscape was created by the Tuscan peasants down through the ages and as their common heritage it should belong to them. This political tirade seems to be aimed at the private, commercial media. To my knowledge, no such legislation has actually been drafted in Italy to date, but one can only hope that it will be aimed at commercial rather than educational interests.] The sign told you not to take pictures, but taking a picture when nobody was looking is a practice as old as art history and photography. If caught, you can be held in violation of the law -- not of copyright but rather violation of a property right.

Frank Gehry’s Experience Music Project (1999) is also architecture like the Leaning Tower, but because it was designed and built after 1990, both the architecture and all the drawings associated with the building are now covered under copyright.[viii: Architectural Works Copyright Protection Act, title VII of the Judicial Improvements Act of 1990, Pub. L. No. 101-650, 104 Stat. 5089, 5133, enacted December 1, 1990.” (http://www.usc.edu/dept/architecture/slide/VRA/burns/italian.html). She continues: The first link is to the Convention of Malta, a European Convention on the Protection of the Archaeological Heritage, which was signed by the Italian government in 1992. Article 9 specifically states that each signatory will undertake to promote public access to their archaeological heritage and encourage the display to the public of suitable selections of archaeological objects. This treaty is being used in their attempt to persuade the Italian government to lighten up. The second link is to a four year old ministerial order 171/194 that set down the regulations governing the use of images from Italy's cultural patrimony. Article 19 stipulates that there is no compensation necessary if the images are for personal use or for reasons that promote study. However, there is a permissions process and the expenses of the administration must be covered. The clincher is that there may be no distribution to the public and everything must be done in accordance with these terms. The payment of substantial fees, there is a scale of charges for every act of transfer, is required for the use of images utilized for commercial purposes.”] Photographing a building or piece of sculpture where access is unrestricted and no prohibitions are posted can result in a ‘fair use’ image that can be used without permission in your lecture, but in order to use that same image in your new textbook, you will most likely be looking at obtaining rights and permissions because the conditions of what is deemed fair changed with the facts. [Publishers are careful to require these clearances in order to avoid possible litigation at a later date when the owner discovers the unauthorized use and sues for infringement. The publishers’ rule of thumb is better to be safe than sorry, even though there are circumstances when fair use SHOULD apply but are not allowed under the standard safety blanket.]

How far then is fair if the pathway to free and clear use is such a minefield? Fair use as I mentioned earlier, is a privilege vesting with a user of legitimately acquired protected materials if that use passes the four-factor test. If an image is not lawfully acquired, then it fails the first condition, even before the four factors can be examined. In the courts, the fair use test is used as a defense against a charge of infringement. In other words, the final decision usually rests with the court -- and costly litigation.

But there are other factors that should be considered in determining whether or not a use is fair – and how far you can or should push the envelope. One of these – a most powerful method – is if your legal counsel is willing to defend your use, believing that it is fair based on facts and analysis. Perhaps the best example of this approach can be found at the University of Georgia where the state system’s fair-use policy, crafted by the late and dearly missed L. Ray Patterson, pushed the fair-use envelope so that it truly mirrored the noble needs of education.[ix: Regents Guide to Understanding Copyright & Educational Fair Use, created November 13, 1997, at http://www.usg.edu/admin/legal/copyright/ . L. Ray Patterson passed away November 5, 2003 (http://www.law.uga.edu/intranet/archives/academics/profiles/patterson.html).] However, if you are at an institution without backup from legal counsel or a liberal university policy, the risks for the individual envelope pusher are both greater and more dangerous. Policy must be in place to protect and defend but hopefully not to the extent of prohibiting what should be fair and permissible under the law.

Finally, how far is fair in the digital world? We learned during the CONFU hearings that the most conservative positions regarding digital copyright were held by people who understood the least about technology. This is changing ever so slowly as rights holders, most especially publishers and museums, find themselves wanting and needing fair-use access (exemption) now that they themselves are more fully engaged in digital production and delivery. The process of seeking and obtaining clearances for everything can be tedious and costly. For certain uses, bypassing permissions and clearances should be allowed. Perhaps one day we will see a swing toward a more liberal approach, not involving a financial transaction. Another misconception slowly changing is that e-commerce is the answer to all budget woes. Since the implementation of e-commerce is through licensing not copyright, fair use does not apply. E-commerce also comes with a high price tag, including management costs for ensuring that the barn doors are locked and sealed. These management costs can only be covered if enough revenue comes into the barn. I personally believe that enough revenue can be obtained from commercial use of images to allow any and all academic uses, including scholarly publication, to be free.

In the digital world, what might seem fair thus gets farther out of reach because the stakes are higher than they ever were. The law, too, is now more complex, because with digital media, we usually don’t own anything; we license it for a limited time. Acquiring materials for a visual resources collection is no longer simply buying slides; acquiring digital images necessitates a new staff of license managers and highly skilled technicians to ensure that we meet all the requirements of another recent piece of legislation, the DMCA (Digital Millennium Copyright Act), while they maintain our terabyte servers with periodic upgrades and augmentations to hardware, software, and image formats. [x: Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860, 2887 (title IV amending §108, §112, §114, chapter 7 and chapter 8, title 17, United States Code), enacted October 28, 1998. (This Act also contains four separate acts within titles I, II, III and V that amended title 17 of the United States Code.)]

So what is a girl to do?? A word to the wise is know your rights! If you are unable to articulate why your use should or could be fair, then you can’t expect the rights owner to help you. Rights holders, like contract providers, will seek the most benefit and give away as little as possible. Fair use is a limitation of rights but in order to exercise your right, you must first make use of it. When you are told to stop – cease and desist – your action will be deemed infringing and unlawful. Remember, fair use is a defense against a charge of infringement but fair use only applies to copyright, not licenses, contracts, or property law issues. The second strategy is to work with your institution’s legal department or specialist to gain their support for actions that could fall beyond the line drawn in the sand. Yes, we’re in a sandbox and the sand can shift. Policy should tell you what you can do rather than what you cannot do. Lawyers are hired to win cases, to find the legal arguments that sway decisions in their clients’ favor; they are paid to figure out the strategies needed to obtain the desired result. This should be ground rule #1 in developing or revising policy.

As you can see, stretching fair use is still a tricky deed. The truth is that as we rush into all things digital and the e-classroom, fair use seems to become more elusive and distant because copyright is indeed fading from view. Recent legislation like the TEACH Act attempts to give educators leeway in the classroom but the process is complicated and cumbersome.[xi: Technology, Education, and Copyright Harmonization Act of 2002, Division C, Title III, Subtitle C of the 21st Century Department of Justice Appropriations Authorization Act, Pub. L. No. 107-273, 116 Stat. 1758, 1910 (amending chapter 1, title 17, United States Code, to incorporate provisions relating to use of copyrighted works for distance education), enacted November 2, 2002.] The TEACH Act, like many guidelines in the past, expects uniform fit and compliance when we know that exact fit only happens in fairy tales, as with Cinderella’s slipper. On the other hand, fair use is still a viable part of the law in spite of TEACH and the DMCA and unless we use it, we will certainly lose it for good. Should we allow this to happen? Or should we push the fair-use envelope? The lawyers in the audience will certainly be saying, It depends! How about for a change we think like a Nike sports superhero and adopt their slogan, “Just do it!” – for education, for a change.

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A version of this paper was presented on Friday, February 20, 2004, in the CAA Committee on Intellectual Property session: Fair Use: Who Has the Rights? chaired by Patricia Failing, University of Washington, as part of the College Art Association annual conference in Seattle, WA. Other speakers in this session included David Weiskoph, Corbis Corporation [Fair Use: An Image Provider's Perspective] and Sean O'Conner, University of Washington School of Law [Don't Forget About Trademarks: Fair Use of Trademarked Text and Images]. Jeffrey P. Cunard, Debevoise and Plimpton, Attorneys at Law, was the discussant.