FairUse in iTunesU
October 15, 2008 1:47 AM   Subscribe

FairUse: I work for a major public state university doing video podcasts for distribution over iTunesU. I've looked up many articles about fair use, but I'm never quite sure where I stand.

The basic tenant of the fair use clause as I've read is that the more widespread and freely available the work the less 'fair' it is. So it that regards, online distribution is about as widespread as it goes. However, because this is all non-profit, educational, state-funded, university work in the end, it seems my usage is what the law was made for.

I've been using as much "free stock photos" as I can find and have flickr's creative commons on my shortlist. I'm currently only using photos as Ken Burns effect type B-roll over boring interviews to spice them up. (I believe this makes the end podcast a derivative work, limiting my CreativeCommons options some)

My question is: What kind of pictures can I just use 'fair use' over, unsourced images from google? flickr trademarked? DerivativeWork Commons? Newpaper articles?

Also, what would attribution look like on any of these?

It's late where I am, and I need to study, so I'll clarify more later...
posted by gzimmer to Education (9 answers total) 3 users marked this as a favorite
Response by poster: I was going to try and keep the university in question unnamed. However, since your ability to understand the use I'm talking about would definitely help in giving advice, I'll provide linkage.

The works in question are presently under "OIRT Faculty Research Spotlight". Feel free to give editing advice and criticism...
posted by gzimmer at 1:56 AM on October 15, 2008

Response by poster: Weird, the link didn't show...hmm...The html linking doesn't seem to want to work...
posted by gzimmer at 1:57 AM on October 15, 2008

If you are critiquing the photographs, or using them for instruction and/or research, they're covered by fair use. If you're just using them to make your presentation look better, you're on much less certain ground. Are you just using these photos as a source of free stock photography for your videos? Keep in mind that a lot of people pay a lot of money for stock photos used for exactly this purpose, which means you're much less likely to be covered by fair use.

With that said, this is exactly what Creative Commons licensing is useful for. If you stick to photography with the appropriate CC licensing, you won't have any problems.
posted by Jairus at 2:04 AM on October 15, 2008 [1 favorite]

Response by poster: When I mentioned free stock photos, I meant I was using photos from www.sxc.hu and such places.

In atleast one case, the 'b-roll' in question were two photographs taken by the interviewee from a photography book for use in class because they happen to stand-in as perfect metaphors for cellular functions. When I mentioned it to the interviewee about their use, he said that he always had given attribution under the photos, however I see quite a distinction between him using the photos in class and my internet-wide distribution.
posted by gzimmer at 2:11 AM on October 15, 2008

Best answer: Have you checked with the general counsel at your university? If it's a major, public state university, there should, in fact, be an office of the general counsel. Contact them with your question, and let them do the research, if they haven't done so already. You'll CYA, and they'll be much, much happier.
posted by joyceanmachine at 2:53 AM on October 15, 2008

Response by poster: Thanks joyceanmachine! I'm always surprised how many departments in my university exist to help in some matter, I'll definitely contact them ASAP.
posted by gzimmer at 3:57 AM on October 15, 2008

Wikipedia has a pretty good overview. From the article, from the relevant law:
Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 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.
So, in your case, you are on the edge, at least.

1- While you work for a university, what's the nature of the podcasts you are creating? Are they academic in nature, as part of a class you are taking or teaching, or research you are doing? And you seem to be using them as content, rather than as an object of teaching or criticism.

2- No clue.

3- This is where you might have the most trouble- you're not quoting from a book or taking clips or screenshots from a film, you are using an artists whole work- the photograph.

4- And so in using that photo, you may well be changing the value of that person's photograph.

So, probably not Fair Use in this case.

Fair use isn't a way to get free content. It's a way to use other people's works as jumping off points, or as part of an educational lesson, or as a commentator or reviewer. So, a radio station can certainly play a song as part of a music review show with out having to pay or get permission for its use. But if they play the same song "naked" just as part of their regular music programming, they need to deal with ASCAP/RIAA to pay for its use.

Similarly, closer to your case, you could use an artist's photograph in a lesson about photography, or as an example of the subject of the photo. But if you used the same photo as part of the artwork of your work, you are on shaky ground.

This is why websites like "Mr. Skin" can use clips of movies- they are reviewing the movies. But put the same thing on youtube, and there's trouble.

It makes sense, but in a very logical unemotional sort of way.
posted by gjc at 4:09 AM on October 15, 2008 [1 favorite]

Response by poster: The goal of this particular podcasting project is to showcase the different types of research going on at my U. So in that regard it is sort-of promotional, but still definitely educational.

Another example of my 'fair-use' was that in a video about someone's research on a particular court-case. I searched and found several pictures of the guilty and their lawyer on several sites including flickr. Flickr had several of the same images, each of which were "All Right Reserved". To further complicate things, the court case in question happened during the mid 1920s. Therefore all the flickr users claiming to have copyright over their images are most likely incorrect. Then there is the matter of newspaper clippings I found, which I am completely unsure of my position there. The only case in which I felt rather confident in my usage of an image, was a high resolution photo of the cover of the court case file, since that should be totally public domain.

@gjc, I actually printed out exactly what you quoted a few weeks ago, and every time I consult it I am left with mixed feelings on my legal grounding.
posted by gzimmer at 4:28 AM on October 15, 2008

every time I consult it I am left with mixed feelings on my legal grounding.

That's not a personal failing, it's the very nature of some of the balancing and factor-type tests that the American legal system is so fond of, and one of the (very good) reasons why so many AskMe questions about legal principles really come down to "see a lawyer".

Fair Use, in particular, is incredibly fact specific -- nearly identical sets of facts can fall on diametrically opposed sides of the doctrine. It's a perfect example of the kind of thing that IANALs shouldn't really go within 100 miles of.

So don't feel bad if you can't make heads or tails of Fair Use... most people can't.
posted by toomuchpete at 5:40 AM on October 15, 2008

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