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Images, Copyright & Fair Use

Images, Copyright & Fair Use



Final part of "Learning to Look, Looking to Learn," a 90-minute workshop for faculty and graduate students presented as part of the Gumberg Library peer-reviewed First Fridays series at Duquesne ...

Final part of "Learning to Look, Looking to Learn," a 90-minute workshop for faculty and graduate students presented as part of the Gumberg Library peer-reviewed First Fridays series at Duquesne University.



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  • Our final part of the workshop is a discussion of images and copyright. I chose this work by artist Ai Kijima as a visual introduction to the kinds of issues surrounding the use of copyrighted visual works. Through use of appropriation, the artist is violating copyright law. In this case, it is done so intentionally, to actively challenge the restrictiveness of copyright. This particular work was featured in an exhibition called Illegal Art. I’m going to begin this portion of the workshop by going over some copyright basics and definitions, including fair use and how it pertains to making use of copyrighted materials in your teaching.
  • Intellectual property refers to creations of the mind, and the legal rights which result from such intellectual activity. IP is divided into two categories: Industrial property, which included inventions (patents), trademarks, and industrial designs; and Copyright, which this presentation will focus on.
  • “Copyright is a form of protection provided by the laws of the United States (title 17, U. S. Code) to the authors of “original works of authorship,” including “literary, dramatic, musical, artistic, and certain other intellectual works.” Copyright owners are accorded certain rights under law; one of these is “the right to reproduce or to authorize others to reproduce the work in copies or phonorecords.”
  • The image is a work by conceptual artist AA Bronson, a temporary public artwork in the form of a balcony enclosure, in Toronto’s Kensington Market area, titled “The copyright marks the border between the public and private domains.” Conceptual art can often provide a challenge to intellectual authorship as understood through copyright. Interestingly, a court recently ruled that not all conceptual art can be copyrighted. The case involved a wildflower installation (Chapman Kelley); the fixation and authorship of which the court regarded as ambiguous.
  • Works in the public domain are not protected by intellectual property laws like copyright, which means they are free for you to use without permission. In general, most works enter the public domain due to old age: the copyright expires. This includes any work published in the U.S. before 1923. However, it is also possible for works published after 1923 to be public domain; it takes a bit more research. Works published before 1964 that have not had their copyright renewed are in the public domain. (Renewal was a requirement for works published before 1978). A small number of works fell into the public domain because they were published without a copyright notice, which was a requirement prior to 1989. Also, some works are in the public domain, because the owner has chosen to give them to the public without copyright protection.
  • There are 3 uses of copyrighted works recognized under law…Free uses – for example, reading a book; these uses do not trigger copyrightRegulated uses, which do not activate copyright, e.g., republishing a bookFair uses, “uses that trigger the law of copyright, but which are nonetheless free because the law deems them ‘fair’”—such as copying words from a book in a review of a book (Lessig).
  • Interesting examples of fair use (non)controversy.Shepherd Fairey’s iconic Obama poster was deemed to have been copyright infringement on the original AP photographer’s photo. However, Andy Warhol’s appropriation of the trademarked Coca-Cola imagery and Campbell’s soup brand is considered fair use, despite these being trademarked brands. Is the character of the original work changed? What do you think?From NOLO/Stanford: “a fair use is any copying of copyrighted material done for a limited and ‘transformative’ purpose such as the comment upon, criticize or parody a copyrighted work. Such uses can be done without permission from the copyright owner. Another way of putting this is that fair use is a defense against infringement.”
  • There are 4 factors that must be considered in determining fair use, taken from Section 107 of the US copyright law:The purpose & character of your use: transformative factor—was the material used to help create something new, or merely copied verbatim into another work. …
  • Jeff Koons’ String of Puppies sculpture, one of the works included in an exhibition titled “Banality.” Another example from the art world that tests our understanding of transformative use. Although it is evident that Koons’ work directly draws upon the photograph by Art Rogers. However, it is a large sculpture, and as the exhibition title may hint, aimed at a kind of satire to which the original never aspired. The court, however, ruled Koons’ work a violation of copyright.(http://www.law.harvard.edu/faculty/martin/art_law/image_rights.htm)
  • The CONFU Guidelines were developed in connection with the Clinton Administration’s National Information Infrastructure initiative, and called upon copyright stakeholders to negotiate guidelines for the fair use of electronic materials in a variety of non-profit educational contexts. Although these guidelines were never formally adopted they do provide a window into the conversation around fair use in education, and can provide insight into some of the considerations that can factor into our understanding of fair use in classroom scenarios.
  • Copyleft is a play on the word copyright, and describes the movement that seeks to counter copyright law in its current manifestation through licensing where authors surrender some of their rights under copyright, in order to make their work more usable and accessible. These sorts of licenses work within existing copyright law. At the forefront of this movement is Creative Commons. Creative Commons is non-profit organization founded by Lawrence Lessig (author of the book Remix, among other things). Creative Commons provides user-friendly licenses that allow authors to make clear how their work CAN be used, rather than the restrictions on the use of their work. As Lessig describes it: “the basic idea of Creative Commons—free licenses that signaled to the world the freedoms an author intends his work to carry.”

Images, Copyright & Fair Use Images, Copyright & Fair Use Presentation Transcript

  • intellectual property“creations of the mind”industrial property ™ ® copyright ©(WIPO)
  • What is… …?
  • what is (not) copyrighted? YESadvertisementscartoons, comic stripscollagesdrawings/paintings/muralsjewelry designspostersrecord jacketsculpturestencils, cut-outs NOideas, concepts, discoveriesformulas, processes, systemswords/short phrasesFamiliar symbols or designs
  • public domain• not protected by intellectual copyright laws• absolutely free• no permission required• usually expired copyright due to old age (pre-1923) (NOLO, 2007)
  • uses… 1. free uses e.g., reading a book 2. regulated uses 3. fair uses ……?(Lessig)
  • fair use? transformative use?
  • fair use | Section 107, U.S. Copyright Act1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; [emphasis mine]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; and4. the effect of the use upon the potential market for or value of the copyrighted work.
  • what is“transformative” …?
  • favoring fair use opposing fair use teaching (including multiple  commercial activity copies for classroom use)  profiting from use research  entertainment scholarship  bad-faith behavior nonprofit education institution  denying credit to original author criticism comment transformative or productive (changes work for new utility) restricted access (to students or other appropriate group) parodyAdapted from: Copyright Advisory Office, Columbia U.
  • CONFU Guidelines― 3.1.1 An educator may display digital images for educational purposes, including face-to-face teaching of curriculum-based courses, and research and scholarly activities at a non-profit educational institution. ‖ 3.1.2 An educator may compile digital images for display on the institutions secure electronic network (see also Section 2.3.2) to students enrolled in a course given by that educator for classroom use, after-class review, or directed study, during the semester or term in which the educators related course is given.
  • terms of use?--Metropolitan Museum of Art, Terms and Conditions --ARTstor, Terms and Conditions of Use
  • { copyleft } !!! freedom vs. restriction
  • best practices• attribute• good-faith behavior• fair use checklist• use images that have been licensed (e.g., ARTstor, AP Images)• online — look for Creative Commons license
  • slide 1 imagesKijima, Ai. Untitled. (2002). Retrieved from: http://www.illegal-art.org/slide 2Lichtenstein, Roy. Design for Dreamworks logo. 1996. Estate of Roy Lichtenstein, n.d. ARTstor. Web. 1 March 2011.slide 3Flickr user MiikeBlogs. Copyright Symbols. 11 November 2008. Flickr. Yahoo!. Web. 23 Feburary 2011.http://www.flickr.com/photos/mikeblogs/3020135605/slide 4Bronson, A. A. The copyright marks the border between the public and private domains. December 12,, 2000 – February 1, 2001. Installation. The Balcony, Toronto. AA Bronson’s virtual gallery. n.p., 9 October 2010. Web. 14 February 2011. http://www.aabronson.comslide 6Rauschenberg, Robert. Skyway. 1964. Painting. Dallas Museum of Art, Dallas, TX. ARTstor. ARTstor, n.d. Web. 28 February 2011.slide 7Garcia, Mannie. [April 27, 2006 file photo, Sen. Barack Obama]. (2006). Associated Press. Retrieved from AccuNet/AP Multimedia Archive.Fairey, Shepherd. [Barack Obama Hope, file]. (2008?). Associated Press. Retrieved from AccuNet/AP Multimedia Archive.Warhol, Andy. Coca Cola. (1962). Retrieved from ARTstor.slide 9Rogers, Art. Puppies. 1985. Offset lithograph on coated paper. Art Rogers. ―Art Rogers vs. Jeff Koons.‖ The Design Observer Group. Observer Omnimedia, LLC. 21 January 2008. Web. 25 February 2011. http://observatory.designobserver.com/entry.html?entry=6467slide 10Lodato, Peter. Near Opposites sheet rock, en./wall: 2 rectangles. 1980. Painting. Private collection. ARTstor. ARTstor, n.d. Web. 17 February 2011.slide 11LeWitt, Sol. Trial proof for a plate from the portfolio Color Grid, Using Straight, Not Straight, and Broken Lines. 1975. Etching. Fine Arts Museums of San Francisco, San Francisco. ARTstor. ARTstor, n.d. Web. 11 February 2011.slide 12Bronson, AA, Partz, Felix, Zontal, Jorge. Copyright. 1987. Painting. Private collection. ARTstor. ARTstor, n.d. Web. 11 February 2011.
  • bibliographyCopyright Advisory Office, Columbia University. ―Fair Use Checklist.‖ Columbia Copyright Advisory Office. Columbia University Libraries, 14 May 2008. Web. 2 March 2011. http://copyright.columbia.edu/copyright/files/2009/10/fairusechecklist.pdfNOLO. (2007). ―Copyright Overview.‖ Stanford Copyright and Fair Use Center. Stanford University Libraries, October 2007. Web. 23 February 2011.Hirtle, Peter, B. ―Copyright Term and the Public Domain in the United States: 1 January 2011.‖ Cornell Copyright Information Center. Cornell University, 3 January 2011. Web. 2 March 2011.Lessig, Lawrence. ―CC in Review: Lawrence Lessig on CC & Fair Use.‖ Creative Commons. Creative Commons, 26 October 2005. Web. 25 February 2011.Harper, Georgia K. ―CONFU: Background.‖ Copyright Crash Course. University of Texas Libraries, 2007.Web. 28 February 2011. http://copyright.lib.utexas.edu/confu2.htmlU.S. Copyright Office. (2010). Copyright registration for works of the visual arts. (Copyright Office Publication No. 40). http://www.copyright.gov/circs/circ40.pdfWorld Intellectual Property Organization. ―What is Intellectual Property?‖ World Intellectual Property Organization. n.d. Web. 1 March 2011. http://wipo.int/about-ip/en/World Intellectual Property Organization. WIPO Intellectual Property Handbook: Policy, Law, and Use. Geneva: WIPO, 2004. Web. 1 March 2011.