Copyright © 1999. All rights reserved.Copyright © 1999.docx

Copyright © 1999. All rights reserved.
VRA Bulletin
Volume 39 | Issue 2 Article 4
1-31-2013
Transcript of Fair Use Guidelines Q & A Forum at
2012 VRA Conference
Cara Hirsch
ARTstor, [email protected]
Allan T. Kohl

Minneapolis College of Art and Design, [email protected]
Gretchen Wagner
ARTstor, [email protected]
Molly Tighe
Archivist, Mattress Factory Museum and Archives Consultant,
Pittsburgh Symphony Orchestra, [email protected]
Follow this and additional works at:
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This Feature Articles is brought to you for free and open access
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administrator of VRA Online.
Recommended Citation
Hirsch, Cara; Kohl, Allan T.; Wagner, Gretchen; and Tighe,
Molly (2012) "Transcript of Fair Use Guidelines Q & A Forum
at 2012
VRA Conference," VRA Bulletin: Vol. 39: Iss. 2, Article 4.
Available at: http://online.vraweb.org/vrab/vol39/iss2/4
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Transcript of Fair Use Guidelines Q & A Forum at 2012 VRA
Conference
Abstract
During the 2012 VRA conference, the question and answer
forum on the Visual Resource Association’s
Statement on the Fair Use of Images for Teaching, Research,
and Study included discussion of the context for
creating a code of best practice, an overview of the statement
elements, and audience member’s questions and
concerns about the statement’s application. Allan Kohl, Visual
Resources Librarian at the Minneapolis College
of Art and Design, discusses the VRA statement on fair use as
an extension of the VRA’s decades-long efforts
to provide guidance to its members on the application of fair
use. These efforts have included participation in
the CONFU conference in 1998, the creation of Image
Collection Guidelines document in1998, the creation
of Copy-photography Computator in 2001, and the creation of
Digital Image Rights Calculator in 2007. Cara
Hirsh, Deputy Counsel for ARTstor, relates these efforts to the
increasingly prevalent use of codes of best
practice within communities that regularly rely on fair use,
citing the documentary filmmaker community and
the Center for Social Media as examples. These codes of best
practice establish a community’s custom and
practice which, she notes, is looked to by courts when
considering whether or not a use is fair.
Gretchen Wagner, General Counsel, Secretary, and Vice-
President of Administration of ARTstor, follows with

an overview of the VRA Statement on Fair Use, noting the
experts consulted, the principles followed, and the
carve-out made for vendor-supplied images. While the majority
of the use case scenarios outlined in the VRA
Statement address non-controversial uses, Ms. Wagner notes the
inclusion of a use case scenario in which
images appearing in theses and dissertations are considered to
be fair. Audience questions cover topics ranging
from advocacy, limited duration and limited geographic
licenses, the crisis in academic publishing, and
concerns over risk assessments and open-web publishing. The
session concludes with a exhortation to share
the VRA Statement on Fair Use with colleagues, counsel, and
those concerned with the use of images in
teaching, research, and study.
Keywords
Fair Use, VRA Fair Use Guidelines, copyright, academic
publishing, image use, code of best practice
Author Bio & Acknowledgements
Allan Kohl, Visual Resources Librarian at the Minneapolis
College of Art and Design, and Cara Hirsh, Deputy
Counsel for AFTstor, are the current Co-Chairs of the VRA
Intellectual Property Rights Committee. Former
Co-Chair of the Intellectual Property Rights Committee,
Gretchen Wagner is General Counsel, Secretary, and
Vice President of Administration for ARTstor. Molly Tighe,
transcriber, is Archivist at the Mattress Factory
Museum in Pittsburgh, PA and Archives Consultant for the
Pittsburgh Symphony Orchestra.
This feature articles is available in VRA Bulletin:
http://online.vraweb.org/vrab/vol39/iss2/4

Whenever I return from a conference, I look over the notes I
jotted down for a refresher
on all the topics and tools covered. Usually, these snippets
serve as a sufficient reminder
of the salient points from each session; however, the topics of
copyright, intellectual
property, and fair use are extremely complex—and the
discussion that occurred in the
Fair Use Guidelines Question & Answer Forum at the 2012
Visual Resources
Association conference was so nuanced, that even the most
assiduous note-taker could
have easily missed a critical point. Given this possibility, the
session speakers and I, the
official note-taker, agreed that making a complete transcript
available in the VRA Bulletin
would allow the Visual Resources community to take advantage
of the expert advice and
detailed explanations that were offered during the session. It is
our hope that this
transcript will be a useful resource in conversations with other
members of the
information management community, with legal counsel, and in
advocacy efforts aimed
at encouraging fair and ethical uses of copyrighted material in
the academic and creative
sectors.
Molly Tighe
Archivist, Mattress Factory Museum
Archives Consultant, Pittsburgh Symphony Orchestra

Fair Use Guidelines Q & A Forum
Allan Kohl:
Good Afternoon and welcome to this afternoon's session
brought to you by the [Visual
Resources Association Intellectual Property Rights] Committee
about the Statement on
the Fair Use of Images in Teaching, Research, and Study. We'll
be providing a bit of an
introduction, background, an overview of the project and then
plenty of time for
questions and answers.
The concept of fair use is an important but frequently
misunderstood component of the
United States Copyright Law. Fair use allows for portions -- or
in some cases the entirety
-- of otherwise copyrighted works to be used for purposes such
as "criticism,
commentary, news reporting, teaching, scholarship, or
research."
Because the law itself offers only general parameters, and is not
specific as to the nature
and extent of fair use, various attempts have been taken to
provide greater clarity and
guidance. I’ll begin this session with a brief overview of some
of these attempts through
the past two decades to determine equitable fair use practices
for both rights holders –
content owners -- and for those of us who use this content.
Cara Hirsch will then continue with an account of recent efforts
by various entities to

document community practices in regard to their non-profit use
of still and moving
images, especially in the networked environment, and to
represent these practices in
formal statements reviewed and supported by competent legal
authority.
1
Hirsch et al.: Transcript of Fair Use Guidelines Q & A Forum at
2012 VRA Conference
Produced by The Berkeley Electronic Press, 2012
Gretchen Wagner will then give us an account of how the Visual
Resources Association
developed its own Fair use Guidelines: how we assembled
information for the statement,
how we addressed fair use jurisprudence in the statement, how
we described community
practices within the statement; followed by a brief walk through
each of the six use case
scenarios addressed in these Guidelines.
We’re going to try to keep our formal presentations relatively
brief so that we have lots of
time for your questions....
But first, a bit of a history lesson…
[“Long past?” said Scrooge. “Nay, your past,” replied the
Spirit.]
We’ll begin with the Conference on Fair use (better known by

its acronym CONFU), a
project of the Working Group on Intellectual Property Rights,
established under
congressional authority to advise the federal government on a
national strategy for
promoting the development of the National Information
Infrastructure, and to make
recommendations on possible changes to U.S. intellectual
property law and policy in the
emerging digital environment.
Following public hearings in November 1993 and the review
and analysis of both
solicited written comments and extensive public comments that
were submitted, the
Working Group released a preliminary draft of its report (the
“Green Paper”) in June of
1994. Following release of the Green Paper, the Working
Group heard testimony from
the public in four days of hearings in Chicago, Los Angeles, and
Washington, D.C., in
September. The Green Paper expressed significant concerns
over the ability of the fair
use provisions of the Copyright Act to provide the public with
adequate access to
copyrighted works transmitted digitally. While recognizing that
the principles underlying
the guidelines for library and educational use of printed matter
and music should still
apply, the Working Group believed it would be “difficult and,
perhaps, inappropriate, to
apply the specific language of some of those guidelines in the
context of digital works
and on-line services.”
Consequently, the Working Group convened the Conference on

Fair use (CONFU) to
bring together copyright owner and user interests to discuss fair
use issues and, if
appropriate and feasible, to develop mutually-agreeable
guidelines for fair uses of
copyrighted works by librarians and educators. Meeting
regularly in public sessions,
CONFU grew from the forty groups that had been invited
initially to participate in the
first meeting on September 21, 1994, to approximately one
hundred organizations
participating as of May 1998. Participants included content
owners and providers;
educational and cultural heritage organizations (who often acted
as both content creators
and owners on the one hand, content consumers on the other);
and user communities that
included among the latter the College Art Association (CAA),
the Art Libraries Society
of North America (ARLIS), and the Visual Resources
Association (VRA).
Eventually, after much acrimonious discussion and hard-fought
compromises, these
negotiations produced five draft statements, later expanded to
include a sixth:
2
VRA Bulletin, Vol. 39 [2012], Iss. 2, Art. 4

Digital Images
Distance learning
Educational multimedia
Electronic reserve systems
Interlibrary loan and document delivery
Use of computer software in libraries
The working groups met and negotiated throughout 1995 and
most of 1996, concurrently
with monthly plenary sessions to discuss issues and drafts of
voluntary guidelines with the
entire group of participants. However, it became apparent by
1998 that a significant
number of organizations—including the VRA—opposed
endorsement of the guidelines on
the basis that many of the proposed requirements in the
guidelines were viewed as
unworkable. Hence the CONFU process came to an ambiguous,
unresolved ending.
The year 1998 also marked the adjudication of a major case
concerning image copyright.
Bridgeman Art Library v. Corel Corp, now commonly known as
the Bridgeman case,
was a decision by the United States District Court for the
Southern District of New York,
which ruled that exact photographic copies of public domain
images could not be
protected by copyright in the United States because the copies
lack originality. Even if
accurate reproductions require a great deal of skill, experience
and effort to produce, the
key element for “copyrightability” under U.S. law is that
copyrighted material must show
sufficient and discernable originality.

Following the CONFU dead end and the Bridgeman decision,
the VRA decided to take
independent steps to provide its members with appropriate
guidance regarding copyright
and fair use issues specific to image collection and utilization.
Beginning in 1998, the
Intellectual Property Rights Committee began work on
formulating a document called the
“Image Collection Guidelines” (originally known as the
“Standards of Good Practice”),
subtitled “the Acquisition and Use of Images in Non-profit
Educational Visual Resources
Collections.” This document addressed issues relating to both
analog and digital images,
as many of us still remained heavily vested in slides even with
the relentless advance of
the digital era.
With the publication of the completed Image Collection
Guidelines as a text-based
document in 2001, the IPR Committee undertook to develop a
parallel tool intended to
take advantage of web technology. The so-called Copy
Photography Computator was an
early iteration of an interactive decision-making query program,
guiding the user through
successive related risk-assessment steps.
A similar, but much more fully developed and nuanced
structure, was used in IPR’s next
major undertaking, the Digital Image Rights Computator, or
DIRC. The DIRC query
program addressed both image rights issues and various possible
use scenarios. The
DIRC prototype was introduced in 2006 at the CAA, ARLIS,
and VRA conferences; the

final version was implemented the following year in 2007.
Incidentally, all of these VRA
3
2012 VRA Conference
projects are available for your use on the VRA web site under
the IPR section of
“Resources.”
At much the same time, the Center for Social Media at
American University in
Washington, D.C., under the guidance of Peter Jazsi, of the
Washington College of Law
at American University, began promoting the formulation of fair
use guidelines by
various user communities. Peter Jazsi was already well known
to the VRA, having been
the keynote speaker at our 23
rd
annual conference in Miami, in 2005, where he warned us
about “The Vanishing Middle in Copyright Policy Discourse.”
The mission of the Center for Social Media, supported by a
number of major foundations
and the National Endowment for the Arts, is to promote truly
public media, with
particular attention to documentary film and video in the

rapidly-evolving networked
digital environment. As part of this mission, the Center for
Social Media has encouraged
and supported the development of fair use guidelines such as
the:
Documentary Filmmakers’ Statement of Best Practices in Fair
use;
Code of Best Practices in Fair use for Online Video;
Code of Best Practices in Fair use for Scholarly Research in
Communication;
Code of Best Practices in Fair use for Academic and Research
Libraries (Association of
Research Libraries).
The Center for Social Media has also provided a common point
of dissemination so that
each new document in this growing body of guidance generates
a complementary
synergy with the others.
For more on the recent history of these fair use guideline
statements, I would now like to
call upon the current Co-Chair of the VRA Intellectual Property
Rights Committee, Cara
Hirsch.
Cara Hirsch is the Deputy General Counsel for the ARTstor
Digital Library. In this role,
she works closely with ARTstor's General Counsel to refine
ARTstor's intellectual
property and other legal strategies for the organization. She is
also responsible for
drafting and negotiating a wide range of content, licensing and
third party vendor
agreements, and supervising the legal due diligence on the

ARTstor collections.
From 2004-2008, Ms. Hirsch was an associate at the law firm of
Weil, Gotshal & Manges
LLP, where she specialized in both intellectual property and
complex commercial
litigation. At Weil, Ms. Hirsch worked on a variety of matters
including drafting a
position paper and congressional testimony on behalf of a major
trade organization in
connection with a proposed legislative change to copyright law;
litigating breach of
fiduciary duty cases and copyright and trademark infringement
disputes; and negotiating
and drafting a variety of intellectual property agreements. Ms.
Hirsch also provided pro
bono representation to artists and musicians through Volunteer
Lawyers for the Arts and
New York Lawyers for the Public Interest.
4
Ms. Hirsch received her J.D. from Fordham University School
of Law, where she was on
Dean's List and served as the Writing and Research Editor for
the Fordham International
Law Journal.
Cara Hirsch:

Thanks so much, Allan.
I'm going to keep my comments brief so we have ample time for
Q & A at the end. But
first, I wanted to go a little more in depth about the history of
the development of all of
these new fair use guidelines.
Going back to the 1800s, fair use has been recognized by courts.
One of the things that
courts have consistently looked at in determining whether one
could rely on fair use is
custom and practice within a community where there was clear
evidence of this. The
VRA is already out in the forefront of these issues in
developing DIRC (the Digital
Image Rights Computator) and Copy Photography Computator,
which documented the
VR communities’ consistent image-based community practices
going back for 150 years.
In recent years many other communities have also tried to put
pen to paper to create
documents that lay out their own customs and practices in the
form of codes of best
practice.
This morning’s session on legal issue surrounding the use of
video in educational,
scholarly and archival contexts, included discussion by one of
the first drafters of the first
set of best practice guidelines, Gordon Quinn, a member of the
documentary film
community. The documentary film community differs from our
community in that they
did not previously have a consistent set of best practices or
standards that could be
referred upon when relying on fair use. Over the course of

time, this led to a lot of
problems. In order to show and distribute their films,
documentary filmmakers were
typically required to have errors and omissions insurance.
However, historically, when
documentary filmmakers wanted to rely on fair use in their
films, they were frequently
denied that insurance. This really hampered the ability for
documentary filmmaking to
thrive and it only got worse over the years.
One particularly dramatic example of how this impacted the
community involves a
filmmaker named Jonathan Caouette who created a great film
called Tarnation. It was
widely known as a very low budget film. His total cost in
making the film was $218.
This total includes production costs, editing clips, gathering all
material, etc. Because he
couldn’t rely on fair use, though, he was forced to clear rights
to all of the content in the
film. The amount of money he spent on copyright clearances
for that film was $200,000.
To address these issues, several years ago, the documentary film
community, along with
several very prominent legal scholars, sat down and put together
a set of best practices,
the Documentary Filmmakers’ Statement of Best Practices in
Fair Use
1
. This was the
first of the codes of best practices for relying on fair use. Once
the statement was issued

it was widely acclaimed. One of the amazing things that
resulted was that the insurers
1
http://www.centerforsocialmedia.org/fair-use/best-
practices/documentary/documentary-filmmakers-
statement-best-practices-fair-use
5
2012 VRA Conference
who issued errors and omission insurance decided that
documentary filmmakers who
wanted to rely on fair use could now get errors and omissions
insurance so long as they
followed the guidelines in the code of best practice. So, the
code has been very powerful.
Since then, there have been a number of communities, including
our own VRA
community, that have drafted sets of best practice guidelines for
relying on fair use.
Hopefully, these will have a similar impact in solving each
community’s issues and the
grey areas surrounding their reliance on fair use.
Aside from the VRA’s own best practices statement, which we
will discuss today, there

are a couple of other best practice guidelines I would like to
mention, that may be of
particular use to our community. The first one is the Code of
Best Practice for Fair use of
Online Video
2
. The second is the statement on Fair Use for Scholarly Use for
Research
in Communication, which deals with fair use for academic and
research libraries
3
. These
are both available through American University’s Center for
Social Media's website. I
encourage you to visit their site since there are many other
helpful resources there, as
well.
I’d now like to turn over the microphone to Allan, to introduce
the next speaker.
Allan Kohl:
Thank you Cara. And now for the inside story on the
formulation of the VRA's own fair
use guideline statement, I'd like to call on Gretchen Wagner.
Our predecessor as Co-chair
of the IP Rights committee, Gretchen is General Counsel,
Secretary and Vice-President
of Administration for the ARTstor Digital Library, responsible
for all legal matters at
ARTstor. Before joining ARTstor, Ms. Wagner was the
Assistant General Counsel to
The Andrew W. Mellon Foundation, where she drafted and

negotiated numerous
agreements with educational institutions, museums, and US and
foreign governmental
entities involving the licensing and distribution of intellectual
property. She also worked
on a wide range of non-profit tax and contractual matters.
Before working at the Mellon
Foundation, Ms. Wagner worked as an associate at a large law
firm, Davis Polk &
Wardwell, where, among other things, she provided significant
pro bono representation
on immigration and criminal matters for indigent clients.
She received a J.D. from Columbia Law School, where she was
an editor of the Columbia
Law Review, a Harlan Fiske Stone scholar, and was recognized
for her contributions to
public service. She received her B.A. from Yale.
Gretchen Wagner:
I was just thinking back to when Allan described the
development of the Copy
Photography Computator and Digital Image Rights Computator
a few minutes ago, and it
2
See: http://www.centerforsocialmedia.org/fair-use/related-
materials/codes/code-best-practices-fair-use-
online-video
3
See: http://www.centerforsocialmedia.org/fair-use/related-
materials/codes/code-best-practices-fair-use-

scholarly-research-communication
6
struck me that these are themselves fair use statements. So, the
VRA had the foresight to
see the value of these fair use statements early on.
Today, I want to talk about the latest fair use statement
developed by the VRA.
For starters, I want to talk about the need for this statement.
Many of you are intimately
familiar with the uncertainty surrounding the application of the
fair use doctrine,
particularly following the rise of digital technologies and the
Internet. At the same time,
what some of you may not know so well is that this community,
and the educational
community at large within the U.S., has been relying on fair use
for roughly a century in
connection with using images for research, teaching, and study.
I attribute the uncertainty around fair use in this context to the
conscientious and
incredibly scrupulous nature of this community. Visual
resources professionals want to
abide by the law; they want to do the right thing. So, the aim in
developing this fair use
statement was to address this uncertainty around fair use in

scenarios commonly faced by
educational users of images, and to provide those users a good
faith, documented basis
for robustly relying on fair use in those situations.
Before we get to the meat of the document, I want to briefly
review what this statement is
and is not about. For starters, the VRA statement on fair use is
about still images, not
video. As Cara and Allan acknowledged earlier, there are other
fair use statements that
have been produced about video, and you should read them if
you have questions about
fair use in that context.
The VRA statement on fair use covers six use case scenarios
relating to teaching,
research, and study. Obviously, there are many other kinds of
use case scenarios that we
could have included in the statement. We chose to focus on the
six most common
situations faced by educational image users; five of these
scenarios had been described in
previous fair use statements, including the Digital Image Rights
Computator and the
Copy Photography Computator. One use case scenario had not
been covered in previous
fair use statements, but we felt that it was very important to
address that last situation
given the impact of current copyright clearance requirements on
scholarship in that
context.
The VRA statement on fair use is about US law. Fair use does
not exist outside the
United States. So this statement is intended to cover uses that

are occurring primarily
within the United States.
The VRA statement on fair use is not about contracts. I want to
just stress that for a
moment. According to many courts, contracts can trump
copyright and fair use. So it is
important to review your contracts to make sure, before you
sign them, that they don't
explicitly or implicitly override your fair use rights. In crafting
the ARTstor Digital
Library contract terms of use, we expressly said that nothing in
that contract would trump
fair use. But, there are other contracts where those rights are
not protected. And you may
7
2012 VRA Conference
well want to negotiate the terms of those contracts to expressly
protect your fair use
rights.
The VRA statement on fair use is not about the public domain.
If you have an image
where the copyright has expired, you don't have to rely on fair
use; use it for whatever
purpose you want and you will not be violating copyright law.
The VRA statement on fair use does not define the outer

boundaries of fair use.
Teaching and research are preferred uses under the fair use
statute, as noted in the
preamble to the fair use statute, so you should not think of this
statement as defining the
limits of fair use. There are many, many different uses that are
not described in the
statement that are fair.
I want to spend a minute talking about the process of
developing the statement. We were
very fortunate, because we were able to build on the tremendous
expertise and previous
work conducted over many years by VRA leaders, including
Christine Sundt, Allan Kohl,
Macie Hall, Ben Kessler, and others who I affectionately call
"the wise ones." Cara and
Allan talked earlier about the documentary filmmakers
statement being one of the first
statements to come out on fair use. Actually, as I noted earlier,
I would argue that VRA
had some of the first statements on fair use with the Copy
Photography Computator, the
Digital Image Rights Computator, and the Image Collection
Guidelines. In essence,
these are statements on fair use. They are on the IPR resources
page of the VRA website
4
and they are a tremendous source of guidance. We drew heavily
from these documents,
as well as the longstanding expertise of the many members of
the IPR committee and
others in developing the latest statement. We also drew on

experiences described in
previous conferences, from the common practices of this
community that had been
documented over time, and from the clearly documented reasons
for relying on fair use in
such situations. So, we drew on all of this information in the
investigatory phase in
understanding the community’s longstanding practices in
relying on fair use, and in
formulating the use case scenarios that were addressed in the
statement.
After the statement was drafted and vetted by the IPR
committee, it was reviewed by a
group of legal experts. The members of the Legal Advisory
Committee were: Robert W.
Clarida (previously Cowan, Liebowitz & Latman, now Reitler,
Kailas, and Rosenblatt),
Jeffrey P. Cunard (Debevoise & Plimpton),
Jackie Ewenstein (Ewenstein & Young), Georgia K. Harper
(Scholarly Communications
Advisor, The University Libraries, University of Texas at
Austin),
Virginia Rutledge (PIPE Arts Group; Former Creative Commons
General Counsel), and
Jule Sigall (Associate General Counsel – Copyright, Microsoft;
Formerly Associate
Register for Policy and International Affairs at the Copyright
Office). We were very
fortunate to have such a stellar group of copyright scholars and
practitioners serve as
advisors to this project. These advisors reviewed the statement
to ensure that it was
consistent with the law, and it should be a source of comfort
and reassurance to those
relying on the statement that it has been “blessed” by such

preeminent copyright lawyers
and scholars.
4
http://www.vraweb.org/organization/committees/ipr/ipr_resourc
es.html
8
Turning to the statement itself, I want to give you a brief
overview of the introductory
sections, before we talk about the different use case scenarios.
I'm not going to spend
time today on the four fair use statutory factors, as they are set
forth in the statute and
described in the statement. But it is worth noting that the first
part of the VRA statement
does give a brief overview of the fair use doctrine, and
provides, in essence, a legal
overview of why these uses of images are fair. This section
does not provide references
to the case law, but if you want to get a sense of the relevant
case law, citations and links
to the relevant cases are on the IPR resources page of the VRA
website.
The introductory section – which provides an overview of why

these uses are fair - is
heavily focused on the first and fourth factors of the fair use
statute. We spent a lot of
time talking about the nature of the uses that are being made,
and in particular that these
educational uses are cited in the preamble to the fair use statue
as being the types of uses
that are likely to be fair. These kinds of uses are also at the
heart of the First
Amendment. When a scholar is displaying an image to critique
that image or the work
depicted in that image, for example, that kind of speech is at the
core of the First
Amendment, and is therefore more likely to be fair.
In addition, you will see that in other fair use statements, there
is often a discussion about
uses being transformative, which tend to support a finding of
fair use. There is no
question that the uses that we're making here are almost always
transformative. When
one is taking an image created for aesthetic purposes and
making an educational use of it,
and placing that image in a different context, that use is very
likely to be transformative.
We did not spend a lot of time on the second or third factors of
the fair use statue,
because they tend to be less relevant in this context. We did
note, however, that often
you need to use the entire image to make your point, and that
courts have repeatedly said
that this should not weigh against a fair use finding in such
instances.
We also then spent a fair amount of time on the last factor,

which deals with the affect of
the use that one is making on the copyright owner’s market for
that work. In particular,
we discussed in that section our community’s century-long
tradition of relying on fair
use, and the fact that, in many instances, copyright permissions
simply cannot be
obtained. For example, we have many orphan works represented
in our image collections,
especially in the context of photographic works or non-western
art objects.
More importantly, it is often impossible to obtain permissions
in a manner that is
conducive to teaching. Copyright owners, though they may
support educational use, are
not accustomed to licensing images for those purposes.
Engaging in conversations about
licensing for educational use with copyright owners is often
useful and there may be
many reasons to do so, but in most instances this process is not
efficient enough to
facilitate teaching. As a result, the community has by necessity
relied on fair use for
many decades.
9
2012 VRA Conference

It is important to note, however, that the VRA fair use statement
expressly carved out
those images that are created by photographers or other vendors
and licensed to the
educational community. For those images, the community has
generally not relied on
fair use and the statement urges users to conform to those
existing practices. These
organizations and individuals provide a tremendous service to
the community by
providing high resolution images specifically created for
educational needs. In the
statement, we recognize the importance of these services.
The VRA statement on fair uses also includes a number of other
suggestions about
utilizing terms and conditions of use or about limiting the
audience accessing these
images. None of these suggestions are required under fair use.
However, good faith is
increasingly becoming an important part of the fair use analysis.
And these measures
may be one means – in addition to relying on the fair use
statement itself – by which
educational image users can demonstrate their good faith.
Now, I want to briefly summarize each of the six use-case
scenarios outlined in the
statement:
The first one is focused on preservation and the need to have
access to images used for
teaching and research over the long-term.
The second use case scenario is focused on teaching, both in
person and online. It should

be noted that, while users may be able to rely on the TEACH
Act, in addition to fair use,
the TEACH Act does not define the outer parameters of fair use.
So, this scenario
envisions a broad set of pedagogical uses of images that we felt
should be fair.
The third use case scenario involves the use of images on course
websites. Increasingly,
as we heard this morning in the video use session [titled
Navigating the Use of Video in
Educational, Scholarly, and Archival Contexts], course web
sites are not only becoming a
part of the fabric of teaching, but our student and faculty expect
to use them. They are, in
many ways, innovative and interactive mechanisms for teaching
and learning, and are
now an important component of the pedagogical landscape. We
felt very strongly that the
use of images in these contexts is often highly transformative
and should be fair.
The fourth use case scenario deals with adaptations. We see all
kinds of adaptations of
images in the educational context. A faculty member might alter
the sense of perspective
in an image to demonstrate the importance of perspective as a
concept. Students in a
design class might copy or alter brushstroke techniques or do
mash-ups or other kinds of
adaptations. We felt very strongly that these kinds of
adaptations should be fair.
Here, academic context matters. If you are using an adaptation
by putting it on a shower
curtain and selling it, the fair use analysis is likely to be

different. But, if you are offering
it in the academic context for teaching, research or study, or in
the context of an on-
campus exhibit, that use should be fair.
10
Sharing images across campuses for teaching and research was
the fifth use case scenario
in the VRA statement on fair use. Images are often shared, as
educational users from
different institutions collaborate online, or as faculty work at
multiple institutions. If
each institution is relying on fair use to access the same work,
then using one shared
image file of that same work (rather than each institution
scanning its own image of that
same work), should be fair. So, we wanted to recognize here
that collaborations are
occurring in a variety of both formal and informal contexts and
that those collaborations
are still consistent with fair use.
As noted earlier, there is one carve out here from these
guidelines that has to do with
respect to vendor images that are licensed to individual
educational institutions. If you
were sharing one of those images with your colleague at another
institution, you could

very well be impacting the livelihood of someone at Archivision
or Scholars Resource,
for example. So, we expressly noted that the sharing of those
licensed images was not
covered by this fair use statement.
The last use case scenario addressed in the VRA statement on
fair use is slightly different
from the previous five scenarios. This use case scenario had not
been covered in the
Digital Image Rights Computator or in the Copy Photography
Computator. With this
case scenario, we focused on the use of images in dissertations
and theses.
Traditionally, the community had relied on fair use to include
images in dissertations and
theses. As part of their academic requirements, students
submitted these papers to their
academic libraries, where theses and dissertations were stored
and accessed on an
ongoing basis. Reliance on fair use to incorporate images into
those theses and
dissertations went unchallenged.
With the development of online databases that stored and
disseminated these theses and
dissertations, however, the database publishers have required -
as a risk mitigation
measure - that students clear copyright for all images in those
dissertations and theses. At
the same time, some educational institutions are requiring that
students submit those
dissertations or theses to these online publishers as an academic
requirement. The result
is that the student is caught between having an academic

requirement of having to post
his or her dissertation or thesis in an online database in order to
graduate, and the
publishers’ contractual requirements that students clear all third
party copyrights in their
papers, meaning that one cannot rely on fair use if one wants to
graduate.
As a result, there is evidence of students redacting images from
their dissertations or
theses. Obviously, this makes no sense; if one is trying to make
an argument about a
particular image or an aspect of an image and cannot include
that image, then obviously
this will impact the import of that argument, and the ability of
others to analyze or
critique that argument. We have also heard about delayed time-
to-degree requirements
and even instances in which students were choosing their field
of focus based on
perceived copyright clearance requirements.
11
2012 VRA Conference
Given the importance of the First Amendment issues at stake in
this context, we felt that
these uses should be fair, and that, as a community, we should
be asserting fair use more

robustly in this situation.
So, those are the six use case scenarios. The Statement has
been very well received and
has generated a lot of interest since its publication. I have
participated in several panels
and other sessions in which I’ve described the fair use
statement, including participation
in a fair use panel for the National Association of College and
University Attorneys, in
which over six hundred participants attended via webinar. So, I
would encourage you to
share this with your counsel, with your colleagues, and with
your faculty.
Allan Kohl:
I would like to mention that one of the focus sessions at the
College Art Association
meeting in February 2012 dealt with the crisis in academic
publishing due to scholarship
being impeded by these perceptions regarding rights. As
Gretchen mentioned, in some
cases, students are constraining their research and publication
over perceptions about the
difficulty in obtaining clearance. Clearly, pushing back is
necessary.
Along those lines, one of the convergences between the VRA
and that of the Fair Use
Guidelines statement by the Association of College and
Research Libraries was this issue
of dissertation and thesis publication. I would like to bring to
your attention the fact that
on February 26 this year, the College Association Board of
Directors voted unanimously
to endorse both the VRA and the Association of College and

Research Libraries’ fair use
guidelines. The academic scholarly community is clearly in our
court on this issue.
What we would like now to receive your questions.
Jenni Rodda (New York University):
I have one really short question, which will probably elicit a
long answer: How do we
push back?
Gretchen Wagner:
We'll I'm going to ask you a questions first, how do we push
back against whom? Are
you talking about publishers? Because, in some ways, I think it
is important to reach out
to artists and photographers; in most instances, they are
supportive of educational use and
are not seeking to charge for such uses. But I do think it’s
important to educate
publishers on the real risks associated with relying on fair use
in publishing dissertations
and theses where images are incorporated in reliance on fair
use.
Jenni Rodda:
My question regarding pushing back has to do with dissertations
and theses. At my
academic institution, it is a requirement for graduation that
students submit their
dissertations to ProQuest, one of the big aggregators of
dissertations. In order to have
your dissertation published through ProQuest, you have to
choose one of four separate
licenses, each of which requires you to have some copyright
clearance for every image

that appears in your dissertation. If we're going to push back
against ProQuest or UMI or
12
one of the other big dissertation publishers in a way that is
protective for everyone, how
do we do that?
Gretchen Wagner:
Great question. I think we need to have with meetings with them
to show them the impact
of their contractual requirements on scholarship, which
ultimately impacts their bottom
line financially. We might also collaborate with them to try to
obtain insurance that
would cover the fair use of images in dissertations and theses,
as was the case for
documentary filmmakers.
Audience Member:
I’m a photographer and I make my photographs available for
educational, non-
commercial use from my website. Though I’ve never denied
any publication request, I
do reserve that right, particularly for photographs depicting
religious buildings or objects,
which need to be handled with sensitivity. Given the carve-out
for vender supplied
images, do you have any suggestions about structuring access to

photography on my
website or about protecting against misuse of my photography?
Allan Kohl:
The question, and an important one for those with artwork and
for content providers, is
how do you make the decisions between whether a use is in the
arena of a legal decision,
whether the moral rights of content creators are affected, and
about the appropriate nature
of a particular use in a particular context.
Gretchen Wagner:
I know many copyright owners struggle with exactly this
question. One way they've
handled this is to develop licenses, like creative commons
licenses. But one way of doing
this is to say something like, “I allow you to make these kinds
of uses of these images. If
you want to make other kinds of uses, I expect you to contact
me.” Requesters could fill
out the form on your website listing the allowed kinds of uses,
and the uses for which
additional permission are required. This is one way of trying to
help facilitate broad use
for educational purposes, which it sounds like you are
supportive of, but which would
outline the terms under which you'd like your images to be
used.
Audience member [continuing]:
I'm happy to license my photography for academic purposes.
However, I become
concerned that my interests, and the interests of other content
producers, won’t be taken
into consideration when pushing back against publishers. When

claiming a use as being
educational, are the interests of content producers being
adequately considered?
Gretchen Wagner:
All rights have to be balanced with competing rights, and all
rights have limitations. But
to the extent that you are talking about being able to license
your images to the
educational community, we do have a carve-out within the fair
use statement for these
kinds of images. The carve out is for those individuals who are
actively licensing their
images for education purposes and who see that it is a means of
trying to make their
13
2012 VRA Conference
living. We don't want to destroy the services that you and
others are providing or your
intellectual livelihood. On the other hand, the vast majority of
rights holders are not doing
what you are doing. In those instances where we have tried to
obtain permissions, we still
haven't been able to obtain permission for educational use. I
was engaged in a
permissions effort early on at ARTstor and, despite repeated
attempts to obtain
permissions, I just didn't hear back from many rights owners.

In other instances, rights
holders have gotten back to us and permitted us to use their
images, but the process was
long and time consuming and involved many individual
conversations. It wasn’t a
process that would work for the needs of faculty. So, we need
to have room for fair use
in those contexts.
Sarah Falls (New York School of Interior Design):
Last year at ARLIS, we did a panel on e-books publishing
regarding the crisis in arts
publishing in the academic community. This is a layer to fair
use that is similar to the
theses and dissertation issue, but also different. The number of
e-books available for art
libraries is really low and it is a challenge to sustain a
developed collection. I really have
to pick and choose among available titles.
As we all known in art libraries, it is crucial that image and text
be together. At ARLIS,
we also had a paper given about image redaction and the amount
of redacted images the
speaker was finding in vendor provided databases for full text
journals. Anecdotally, one
of our faculty members told me that her publication would not
be available electronically
because the publisher refused to pay for the electronic rights,
which cost much more than
print rights.
Is this anything that VRA is dealing with? It is different from
dissertations and a little
different from academic publishing, but there is a vast amount
of content out there

published by faculty members. These faculty members aren't
making money off these
publications, but are publishing for tenure. Ostensibly the
venue, like Scholars Resource
or ProQuest, would make money. So, how can we tow that line?
How can we push back
so that our faculty can publish electronically, so that the images
are not redacted from
academic publishing, and that we have a good selection of e-
books to offer to our
students?
Gretchen Wagner:
I have two comments. First, this question is not only about
copyright but about contracts.
And contracts for the online use of images are often
problematic, such as terms providing
durational limits on the licenses.
The second point I would note is that there are efforts underfoot
to address these issues,
particularly in the fair use context. So, I hope that more
guidance will be forthcoming
shortly, and I hope that I and others can share more with you
about this soon.
Written audience question read aloud by Allan Kohl:
14

Under the preservation scenarios, the first of the 6, we find the
following situation: a
university owns a laser disc of a full-length film. Can we
convert this to DVD and then
put the entire film on course website for a limited period of
time, such as a semester?
Allan Kohl:
If this question were brought to me, and it has been brought to
me at MCAD, my first line
of response would be to ask if the same title is available in an
authorized form that can
you buy on a DVD. That wouldn't really be an instance of fair
use because we are then
replacing a legitimate commercial transaction.
As to the second part of the question about putting the entire
film onto a course website
for a limited time, most have taken the path that since a course
website is limited to
enrolled students and is password protected, that it is a safe
environment for this sort of
material. But, I'll defer to my colleagues if there is another
answer.
[Gretchen Wagner and Cara Hirsch agree with Allan Kohl.]
Next written question read by Allan Kohl:
Can online sites providing images for educational uses publish
images of works that are
still in copyright like those of Picasso and Warhol?
Allan Kohl to Gretchen Wagner: Since you've negotiated with
those estates, I'll let you
answer this.

Gretchen Wagner:
This question is about fair use of images that are under
copyright, like Picasso and
Warhol, which is expressly covered under the fair use
statement, and I’d urge you to read
it. With online sites, one thing to consider, and this is spelled
out in the statement, is
having terms or conditions of use or other means by which you
are limiting use to a
clearly academic audience. Terms and conditions of use are not
necessarily required
under fair use, but they are very helpful in demonstrating that
you are intending to use
this material or to make it available for these strictly
educational purposes. That can go a
long way in helping support an assertion of fair use.
One challenging piece of all of this is that open websites
distribute worldwide, but fair
use does not exist outside the United States. When you are
distributing online in an open
manner, a question arises as to which country’s law applies.
This is a fairly complex
question, and the answers are not always simple. So, I would
just urge you or your
counsel to consider that in thinking about open website use of
images. There may be
ways, through terms of use, in which you can more clearly gear
the website towards
educational audiences in the United States.
Dr. Kathleen Cohen (California State University):
I am in charge of a large website that many of you know, World
Images
5

, that contains
images from all over the world. I have taken down the images
of works by Picasso, the
5
http://worldimages.sjsu.edu
15
2012 VRA Conference
works by Matisse, and the works by Warhol among others,
covered by European and
American artist’s organizations, because I know Picasso’s and
Matisse’s works are under
European law and Warhol’s are under US law. I would like to
make the images available
to everyone, but I guess I must continue to take them down and
not show them on the site
even though people want to see them. With other contemporary
and modern artists, I put
the images online, list the artist’s name as the copyright holder,
and include the name of
the photographer. I tell artists that if they want to give contact
information, that I'll be
happy to list that information beside the image. If they want me
to take it down, I'll take it
down. That seems to be working because young artists want to
get their work out.

Christine Sundt (University of Oregon, Emerita):
The challenge of not being able extend fair use beyond the
boarders of the US is
something that I'm very interested in right now. In this
morning's presentation by Quinn
[titled Navigating the Use of Video in Educational, Scholarly,
and Archival Contexts], he
mentioned the Universal Declaration of Human Rights, Article
27 and I'm wondering if
we have explored this universal aspect of cultural heritage, the
aspects of user rights and
also creator rights, as a way of working around the fair use
limitation.
Written audience questions read by Allan Kohl:
Are images in on-campus and in online exhibitions curated by
either faculty, staff, or
students covered by use case scenario number four dealing with
adaptations?
Allan Kohl:
My first thought would be that if the documentation shows
multiple works, then it is
clearly in a critical context. In a critical context, there is a
transformative quality in a
sense of the juxtaposition of one work against another to create
a new level of meaning.
The display of individual works is one that I would be less
comfortable with especially in
a completely unrestricted environment, but I know that a lot of
campuses like to do this in
order to promote a particular exhibition. I'm not sure how to
address that situation any
more than I’m clear how to address the use of derivative works
in online student

portfolios.
Gretchen Wagner:
I tend to think that this would be covered under the third and
fourth scenarios, but it’s
important to note that the scenarios outlined in the VRA
statement are, in essence, a
broad set of principals. Within them, there are going to be a
variety of circumstances that
may vary somewhat from the use case scenario described in the
document. So, one of the
ways in which you should use this document is to look at it for
general guidance, and
then talk to others in your institution about whether your
particular situation falls closely
enough within one of these scenarios so that you can proceed.
If it does not fall within
one of these scenarios, it may still be fair use, and in those
cases, your decision is really
going to depend upon your own institution’s perceptions of risk
and existing practices,
because there are no hard and fast lines in this area.
Written audience question read by Allan Kohl:
16
This is about practice regarding what I would presume to be
students in undergraduate
situations: Are students doing works other than dissertations or

theses protected by use
scenario number 6, especially in regard to databases.
Allan Kohl:
For undergraduate work, this is more often a voluntary matter
though sometimes there is
a course requirement to publish a paper with images and in a
variety of contexts,
including the open web. So, again, I'm not sure how to respond
to this one.
Gretchen Wagner:
It is not clearly covered under use case scenario six, which is
really about dissertations.
But, I would say that the same transformative principals, of
taking an image and putting it
in the educational context and using it to convey points in a
transformative way, would
point strongly toward fair use.
Written audience question read by Allan Kohl:
Here is a scenario that we're going to have happen more and
more as academia shifts to
the use of adjunct faculty: If your VR collection creates digital
images for faculty, when
faculty leave your institution and ask for copies of these digital
images to use in their new
campuses, is this allowed under fair use?
Allan Kohl:
My initial response to this would be that just as institutions
have fair use rights, so do
individuals including individual faculty. This seems to me to
point towards one of the
scenarios in the guidelines, that of sharing images across and
between campuses as long

as the fair use assessment done originally for that image is
closely observed. Perhaps
someone has another opinion on that.
Gretchen Wagner:
In part, I would say that it depends on where those images came
from. If there are
contractual terms associated with the image, you may not be
able to take it to a new
institution, so keep that in mind. Sometimes institutions are
hesitant about sharing
images that were created with their resources, so that may be a
factor as well. And if
these are vendor images, then they would not be covered under
this Statement, as
described earlier. You may want to consult with others on your
campus and develop a
policy that would cover these kinds of situations.
Audience member: Very often you can’t.
Allan Kohl:
I might say that at my own institution there is a very lengthy
faculty manual that outlines
policies, not just for this situation, but also for work such as
syllabi and lecture notes and
that sort of thing. The faculty senate actually pushed against
administration on that point
several years ago because so many faculty are adjuncts who
teach at other institutions and
want to be able to take this material to their next stop along the
academic ladder. To say
that a syllabus belonged to the institution and not to the
instructor who created it wasn't
17

2012 VRA Conference
really strengthening the adjunct faculty member’s ability to
move on in their careers. So,
the compromise that was worked out under guidance from
counsel and approved by the
board of trustees was a sort of both/and: course content could be
used by the institution
under permanent implicit licensure, but belongs to the faculty
who created it because it
turned out that the faculty contract stated that they were paid
only to teach a class, not to
create course content.
Written audience question read by Gretchen Wagner:
We have another question here from Linda Reynolds at
Williams College regarding
undergraduate honors theses and electronic versions accessible
in college archives and
the question is: If a thesis contains images that are not yet in
the public domain, it is
suggested that students split the document and put images that
are not in the public
domain into a version that will not be accessible electronically.
Is this necessary?
Gretchen Wagner:
I would say that this is exactly the kind of requirement that has
impacted scholarship in a
very significant way and to a very negative effect. You can't

make an effective argument
about an image if the image is sequestered and people don't
have access to the image.
Others can't evaluate or critique your work. These are precisely
the types of
requirements, whether they are posed by publishers or by
institutions that are trying to
limit risk that we need to push back against. We need to have a
better solution.
Allan Kohl: Are there any additional questions?
Audience member:
Hello. I work at a small college. I am wondering if studio arts
faculty members could
assign their students to collect images from anywhere and
everywhere and put the images
in a place, either online (open WWW) or online within the
course software on campus
(closed to off campus; alternatively closed to anyone not in
their class). They would then
use this collection for class discussion. �
Does this collection have to be on a closed network within the
college or can it be on the
open web? Does it have to be up for only a limited time, or
could it evolve as a “curated”
collection over time and many sequential classes? If a student
were to graduate could
they download the collection and create a portfolio of their
discussion material to take
away with them? Is there any way that graduates could remain
“live” in the discussion of
the class, as an “art community”, after they are not in class
anymore?

Gretchen Wagner:
So this question is about course websites and uses in connection
with a course. We
wanted to emphasize, with the VRA statement, that use of
images in course websites to
facilitate teaching and education is generally consistent with
fair use. I would point you
to the suggestions made about restricting access or trying to
find ways to make it very
clear that this website is intended for educational use because
those efforts can help
demonstrate your good faith in limiting use of those images to
those that are educational
in nature.
18
Christine Sundt (University of Oregon, Emerita):
I think it is an excellent question. I would conduct workshops
with artists, with students
in journalism, with multi-media classes, with multimedia
classes, etc, and what I would
try to stress with them is the idea of balance between creation
and use. I would throw the
question back to the students: “How would you feel if somebody
took your work?” and
let them be the ones to help decide what they wanted to take and
how they wanted to use
it. I would really try to educate them about the necessity for a

sense of balance in giving
and taking that involves fair use.
Gretchen Wagner:
That is a really good point and courts approach this issue the
same way. In fact, I heard a
speaker at a previous session, Steve McDonald from Rhode
Island School of Design, say
“Pigs get fed at the trough.” The analogy doesn't work entirely
because the pigs get
slaughtered, but the idea is that pigs get fed at the trough and
hogs get slaughtered. You
want to be the pig, but you don't want to be the hog. You want
to find uses that are aimed
at educational use. You can ask what are the uses really
intended for. If the intention is
just to throw it up on the web and say, “We don't care and we're
just going to do what we
want to do,” then that's not going to be perceived so well by
courts or by others. You
don't want to be perceived as the hog in that situation.
Allan Kohl:
I’d like to send you forth with an exhortation: on most of our
campuses -- and it is true of
mine certainly -- people look to the VR person for copyright
information and suggestions
and advice. We heard earlier that Gretchen participated in a
webinar for the National
Association of Colleges and Universities Attorneys and many
hundreds of people
participated. They are hungry for this kind of information.
Many of them, not to cast
aspersions unduly, are interested in employment law and
whether someone will sue you if
you trip over a crack in the sidewalk. They may have not

thought a great deal about the
implications of copyright policy. They are looking for
guidance. They are looking for
real life use scenarios that you can document for them. This is
an area where we can
provide guidance with the broader perspectives that go beyond
the particular applications
of this semester or tomorrow's class meeting. So, let those be
our parting words for you.
Go forth and promote these guidelines and recall that everything
in life, including
copyright and fair use, is meant to strike an equitable balance
and our job is to help
ourselves—and to help others—find that balance.
19
2012 VRA Conference
Copyright of Visual Resources Association Bulletin is the
property of Visual Resources Association and its
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express written permission. However, users may print,
download, or email articles for individual use.

Round One? Judge Issues Rulings in Long-awaited
Copyright Infringement Lawsuit Against Georgia
State University*
Linda K. Enghagen
University of Massachusetts at Amherst
ABSTRACT
Long-awaited rulings from the copyright infringement lawsuit
provide the most specific guidance
available to date regarding fair use of certain types of materials
in e-reserves systems and online course
management systems. Unless successfully appealed or
otherwise overturned, this case represents a
significant victory for Georgia State University specifically and
higher education in general. In addition
to rejecting the 1976 Classroom Copying Guidelines for Books
and Periodicals as an appropriate legal
standard for fair use, the case holds that semester-to-semester
use of the same material is permitted under
fair use. Further, at least for non-fiction books, this case
provides somewhat formulaic standards for
evaluating fair use. Finally, the potential financial implications
of this case are analyzed and suggestions
for institutional due diligence are recommended.
I. INTRODUCTION
While the trial ended in July of 2011, it took Judge Orinda
Evans eleven months to issue a ruling in the
closely watched copyright infringement case brought by
Cambridge University Press, Oxford University
Press, Inc. and Sage Publications, Inc. against Georgia State
University [1]. Originally filed on April 15,
2008 [2], this case represents the first time a university was
confronted with allegations of massive

copyright infringement resulting from posting copyright
protected works to its e-reserves and online
course management systems.
As characterized in the original complaint, the publishers
accused Georgia State University of engaging in
the "systematic, widespread, and unauthorized copying and
distribution of a vast amount of copyrighted
works...through a variety of online systems and outlets
utilized...for the digital distribution of course
reading material...without the requisite authorization and
appropriate compensation to the copyright
owners of such materials" [2, p. 2]. More specifically, the three
publishers claimed that “with the
University’s encouragement, hundreds of professors employed
by Georgia State … compiled thousands
of copyrighted works, made them available for electronic
distribution, and invited students to download,
view, and print such materials without permission from the
copyright owners. As of February 19, 2008,
the Georgia State Library’s electronic course reserves system
listed over 6700 total works available for
some 600-plus courses” [2, p. 3-4].
In many respects, the case against Georgia State University is
the extension to earlier lawsuits against
Kinko’s Graphics Corp. [3] and Michigan Documents Services
[4]—cases that resulted in publisher
victories. In the Kinko's and Michigan Documents Services
cases, the facts were straightforward and
essentially identical. Each involved a private business
generating profits from the sale of course packs for
which no permissions were sought and no royalties paid. Each
party attempted to defend itself claiming
permissions in the name of fair use allowed copying and

distribution of course pack materials selected for
use in specific courses by specific professors in non-profit
educational settings. In each case, the courts
disagreed. While acknowledging the end use of the course packs
was for non-profit educational purposes,
both the copying and distribution channels were viewed to be
for-profit in nature. Consequently, both
Kinko's and Michigan Documents Services lost their fair use
arguments and were found to be engaging in
copyright infringement [3, 4]. Though less well known, a third
course pack case against another
Michigan-based copy venture ended in a similar outcome [5].
In Blackwell Publishing, Inc., Elsevier,
Inc., Oxford University Press, Inc., Sage Publications, Inc., and
John Wily & Sons, Inc. v. Excel Research
Group, LLC d/b/a Excel Test Preparation, Coursepacks &
Copies, and Norman Miller, venture owner
Normal Miller attempted to avoid the problems of Kinko’s and
Michigan Documents Services by
implementing a self-service based model for course packs [5].
That is, at Miller’s copy shop, professors
provided a compilation of readings for a particular course from
which the copy shop then made a
“master” version. Students then purchased a copy of the course
pack by requesting the “master” which
they copied themselves at one of the shop’s copy machines.
Miller argued because students made the
copies themselves, there was no infringement on his part.
Disagreeing with Miller’s characterization, the
judge stated:
At bottom, this case is not seriously distinguishable from
[Michigan Documents Services]. The
fact that the students push a button on a copier in the manner
described is of no significance.
Excel’s assertion that it has no inventory and simply offers

copying services is not correct – it has
an inventory of copyrighted materials given it by professors,
some of whom even state in their
course syllabi that the material is available for ‘purchase’ at
Excel. … Simply put, copyright law
should not turn on who presses the start button on a copier.
Excel’s actions violate the
publishers’ copyrights [5, p. 13-14].
Apart from references related to digital distribution in the
lawsuit against Georgia State University, the
underlying allegations are remarkably similar to those in the
three (3) copy shop cases above. Georgia
State University professors compile course packs which are
made available to students without
permission from, or royalties paid to, copyright holders. As has
been made clear in all three (3) copy
shop cases above, when this is undertaken by a private business
profiting from the sale of course packs, it
constitutes copyright infringement [3, 4, 5] regardless of “who
presses the start button on the copier” [5].
Nevertheless, even at the time of the Kinko’s case, the judge
left room for a different outcome if the
copying and distribution occurred on-campus: “Expressly, the
decision of the court does not consider
copying performed by students, libraries, nor on-campus copy
shops, whether conducted for-profit or not”
[3, footnote 13]. This case begins to offer answers to the
parameters of fair use when undertaken on the
campus of a public, non-profit university.
II. SOVEREIGN IMMUNITY AND PUBLIC UNIVERSITIES
One somewhat unexpected aspect of the Georgia State
University case is it was brought against a public
university. This is somewhat unexpected because of limitations
found in the 11th Amendment to the U.S.

Constitution regarding the use of federal courts against state
governments. The 11th Amendment
sovereign immunity doctrine was designed to act as a check and
balance between the powers of the state
and federal governments; it protects states from being sued in
federal courts. The precise language of the
amendment is as follows: “The Judicial power of the United
States shall not be construed to extend to
any suit in law or equity, commenced or prosecuted against one
of the United States by Citizens of
another State, or by Citizens or Subjects of any Foreign State”
[6]. Consequently, in most instances, state
governments, and thereby state institutions and state officials,
cannot be sued in federal courts.
Nevertheless, like other provisions of the U.S. Constitution and
its amendments, this rule is not absolute.
There are limited circumstances under which such lawsuits are
permitted to proceed. This George State
University case fell within those limited circumstances.
In a September 30, 2010 ruling, Judge Evans noted that it is an
undisputed fact of this case that the state
officials being sued here “are arms of the State of Georgia and
they are being sued in their official
capacities” [7, p. 13]. In her ruling which permitted the case to
proceed, she acknowledged that the 11th
Amendment prohibition on federal court lawsuits against states,
state institutions, and state officials
applies when the suit is looking for monetary damages or
otherwise seeks a remedy for past wrongs.
However, this case did neither. In the lawsuit, publishers asked
the court to issue an injunction
permanently preventing GSU from continuing to commit what it
viewed as being copyright infringement.

In concluding that the lawsuit falls under an exception to the
general rule of state sovereign immunity,
Judge Evans noted: “… under the long-recognized exception to
this rule … suit against Defendants is
allowed to the extent that it seeks ‘prospective equitable relief
to end continuing violations of federal
law.’ The ‘ongoing and continuous’ requirement is satisfied
where there is a threat of future violations of
federal law that may be remedied by prospective relief” [7, p.
13].
While Judge Evans permitted the GSU lawsuit to proceed
against university officials, none were alleged
to have personally violated the law. Each was sued by virtue of
his or her position and related area of
responsibilities. From a legal standpoint, this is an important
distinction because sovereign immunity
does not necessarily apply to state employees who are accused
of personally participating in perpetrating
the violation. For example, in 2006, a copyright infringement
lawsuit brought against the trustees of the
California State University System and Robert Rauch, an
employee of San Diego State University
(SDSU) accused Rauch of personally infringing a copyright held
by a private marketing firm when he
prepared an economic impact study as part of his
responsibilities as the Director of SDSU’s Center for
Hospitality and Tourism Research [8]. Consequently, when
ruling on the application of sovereign
immunity in this case, the judge agreed that sovereign immunity
protected SDSU, but found it did not
protect Rauch.
State sovereign immunity extends to government officials that
are sued for damages in their official
capacity. An individual capacity suit against a government
official is one that directly attaches that
individual’s assets and is one that will not lead to monetary

liability of the state. The deciding factor for
ascertaining whether a suit is an official capacity suit or an
individual capacity suit is not how the suit is
labeled by the plaintiff, but rather the nature of the suit.
Where the suit is against the individual, the
individual is not automatically immune from suit by virtue of
the fact that the act was undertaken in the
course of his or her employment. … Based upon the [facts
alleged in the complaint] which includes
allegations that Rauch personally engaged in the infringing
behavior, the Court finds Plaintiff seeks relief
from Rauch in his individual capacity as well as official
capacity. Accordingly, Rauch is not entitled to
sovereign immunity from the suit seeking relief against him in
his individual capacity (citations omitted)
[8, p. 7-9].
In other words, while the case against SDSU was dismissed, the
case against Rauch continued— not in
his capacity as an employee of SDSU—but against him
personally. According to news accounts, the case
was ultimately settled with SDSU paying the marketing firm
$15,000 on Rauch’s behalf [9]. The critical
distinction made by the court in the case illustrates an important
but easily misunderstood dimension of
the sovereign immunity doctrine. It protects state institutions
and employees sued in their official
capacities, but does not necessarily protect state employees
accused of personally engaging in illegal
behavior even as part of or related to the responsibilities of
their positions.
III. POTENTIAL HIGH STAKES GOING FORWARD
Given the sovereign immunity protection for state institutions
and officials, the publishers could not
successfully bring this lawsuit asking for monetary damages for
the alleged past infringements.

Consequently, it might appear from a financial perspective, this
case is of little consequence to both the
publishers and GSU. However, that is not the case. The
financial ramifications of this litigation are
potentially high. In addition to the costs of the lawsuit itself,
there is the possibility of increased costs
associated with compliance such as those for permissions fees.
The following examines various financial
dimensions to this case.
A. Costs Borne for the Litigation Itself
While judges sometimes have the discretion to order a losing
party to pay attorney costs and fees of the
winning side, at least at the outset, both the publishers and GSU
must bear the cost of bringing and
defending this litigation. As it turns out, the publishers
received significant assistance in this regard.
According to court filings, the publishers identify both the
Copyright Clearance Center and the
Association of American Publishers as “having either a
financial interest in or other interest which could
be substantially affected by the outcome of this particular case”
[10]. While this filing does not specify
the nature of the interest either group has in the lawsuit, a
September 2010 Order revealed that the
Copyright Clearance Center (CCC) financed 50% of the
litigation’s costs [7, p. 10 at footnote 2]. When
the judge’s order made public the specific nature and extent of
the Copyright Clearance Center’s
involvement, it was not well received in academic circles. For
example, Charles B. Lowry, the Executive
Director of the Association of Research Libraries was wrote a
letter to Tracey L. Armstrong, the President

and CEO of the CCC, objecting to its involvement. Dated
November 11, 2010, Lowry wrote:
On behalf of the Association of Research Libraries, I am writing
to express
our deep disappointment with the decision by the Copyright
Clearance Center
(CCC) to underwrite 50% of the plaintiffs’ costs in the
litigation by three
publishers against Georgia State University. We learned of the
CCC’s action in
the recent ruling by Judge Orinda Evans of the Federal District
Court in Atlanta.
As the CCC notes on its website, the not-for-profit organization
was
founded “by a collaboration of content creators, content
publishers, and content
users.” The CCC also notes that it “serves the interests of those
who supply
content as well as those who use it.” Balancing the interests of
these communities
can be a challenging task, and many efforts have been made
over the years to
that end with the understanding that collaboration is a far more
successful
strategy. Unfortunately, this action by the CCC signals to the
content user
community that the CCC no longer seeks to serve the interests
of all of the
partners in the scholarly communications enterprise.
We write in hopes that the CCC will seriously reconsider, going
forward,
its role and participation in litigation against members of the
academic

community [11].
According to Publishers Weekly, when it contacted the CCC for
a response to Lowry’s letter, a CCC
spokesperson defended their involvement by pointing out that
the case is meant to clarify fair use and is
asking only for an injunction, not monetary damages. Further,
according to the spokesperson, “There is
nothing inconsistent, in our view, between acting as a good
faith intermediary to facilitate licensing while
at the same time supporting efforts to address outlying instances
of egregious copyright infringement”
[12]. In her May 11, 2012 ruling, Judge Evans further clarified
the origins of this litigation when she
noted that “the Court infers that CCC and AAP organized the
litigation and recruited the three plaintiffs to
participate. AAP and CCC are each paying one-half of
Plaintiffs’ litigation expenses including attorneys’
fees in this case” [19]. Whether either organization experiences
any negative repercussions as the result
of these further disclosures remains to be seen.
As noted earlier, it is true that the case does not ask for
monetary damages for the alleged copyright
infringements. However, in addition to seeking a permanent
injunction, the lawsuit does ask for
attorneys’ fees and expenses [2, p. 29]. Consequently, to the
extent GSU loses, it can be ordered to
reimburse the publishers for their costs; given the identification
of the CCC and AAP as parties who
underwrote the financial cost to the publishers, they stand to
receive some share of any reimbursement.
Further, the prospect remains the CCC and AAP may seek
recruitment of other potential publishers for

further litigation (i.e. test cases) against other institutions.
B. GSU’s Expenditures for Electronic Databases and CCC
Licensing Fees
The fees and expenses specifically associated with bringing and
defending this lawsuit represent a one-
time cost borne by those involved. Understanding the high
stakes nature of this litigation from a financial
standpoint requires a more detailed examination of GSU’s
practices and related expenditures in contrast
to the claims asserted by the publishers.
In her September 30, 2010 order, the judge noted that the GSU
library spends between $4 and $5 million
on materials, with roughly half of the expenditure going to the
licensing of electronic journal databases [7,
p. 10 at footnote 2]. In addition, over the ten year period from
1998 to 2008, GSU “paid $18,905.42
directly to the CCC for licensing fees” [Id.] In other words, in
addition to already spending between $2
and $2.5 million on licensing fees for electronic journals, GSU
also spent, on average, an additional
$1,900 per year in permissions fees to the CCC. Compare that
additional $1,900 per year in permissions
fees to the cost GSU would incur for an Annual Academic
Copyright License from the CCC. According
to Tom Allen, president and CEO of the Association of
American Publishers, such a license would cost
GSU $114,000 annually (not including the one-time
administrative fee): “What would be the annual cost
to Georgia State University if it subscribed to a blanket Annual
Academic Copyright License? The
answer is $114,000 in rights-holder royalties per year plus a
one-time, first-year-only administrative
charge of 20% of that amount. With an estimated 30,400
students at GSU, $114,000 works out to about

$3.75 per student. About the cost of one medium-sized
Starbucks drink” [13]. Even without the one-time
administrative fee, the annual license would cost GSU
$1,140,000.00 over ten years instead of the
$18,905.42 they paid.
C. Permissions Fees for the Alleged Infringements Per the
Publishers’
Calculations
In the actual lawsuit, the judge approached the permissions fees
question by first narrowing the alleged
infringements, and then asking for an evaluation of royalties
owed under the CCC’s permission system on
an item-by-item basis. In early August 2010, Judge Orinda
Evans ordered each side to start to get
specific. That is, the publishers were ordered to identify the
allegedly infringing works for three terms:
the 2009 Maymester, the 2009 summer semester, and the 2009
fall semester. The judge’s order directed
the publishers to compile the following information.
This list of courses must be grouped by semester and must
include:
1. The title of the course;
2. The instructor teaching that course during that semester;
3. The title of the work that was allegedly infringed when it was
electronically distributed for
use in that course;
4. The owner of the copyright of that work;
5. A brief description of that work including its total number of
pages and chapters; and
6. The number of pages and chapters of that work that were

electronically distributed for use
in that course during that semester [14].
The publishers were further ordered to compile information
concerning the costs of the alleged
infringements [15].
Georgia State University was given orders too. The university
was ordered to respond to the information
submitted by publishers and, in addition, to identify all books
and course packs students were required to
purchase for each course on the list [14, 15]. Finally, the court
ordered GSU to report the number of
courses taught during each of the three terms in question [14].
One can only imagine the bills each side
received from the hours of lawyers laboring at their hourly rates
to compile it all. What is more
interesting, however, is what the court documents reveal about
the dollars at stake for publishers and
copyright clearance companies such as the Copyright Clearance
Center (whose fee structure was used to
calculate permissions fees) [16].
The data for the 2009 fall semester provides a snapshot of the
revenue publishers believe they lost by their
book chapters being distributed via e-reserves without any
permissions royalties paid by GSU [17].
Based on GSU’s response, the school acknowledged thirty-one
(31) courses taught at GSU distributed a
total of fifty-seven (57) chapters from books identified by the
publishers. Interestingly, in the vast
majority of the cases (45 out of 57) only one (1) chapter from a
given book was distributed via e-
reserves. That represents over 95% of the cases. In two (2)
instances, one (1) chapter plus part of a
second chapter were distributed. In the remaining cases, there
were six (6) instances in which two (2)
chapters were distributed, two (2) instances in which three (3)

chapters were distributed, one (1) instance
in which four (4) chapters were distributed, and one (1) instance
in which eight (8) chapters were
distributed. Even in the eight (8) chapter case, only 186 pages
of the 1,126 page volume were ultimately
distributed. On the whole, the vast majority of the instances did
not involve copying massive portions of
individual books. Indeed, it is highly likely that many faculty
members believe taking a single chapter
from a book is comfortably within the parameters of fair use in
most situations. Clearly, the publishers
did not share the same view. It is easy to see why the publishers
viewed it differently when examined
from the perspective of the potential lost revenues.
Looking at fall 2009 data provided by GSU in its court filings,
the class sizes reported for the period
ranged from one to one hundred fourteen (1–114) students with
most courses having fewer than fifty (50)
students enrolled [17]. Based on the actual enrollment figures
for each course and the permissions fees
the Copyright Clearance Center charges for the chapters in
question (which includes a $3 service charge
for each permission request), GSU’s permissions bill for that
semester would have been $7,153.75.
Assuming fall 2009 represents a typical semester, this translates
into $14,307.50 for the academic year.
This excludes GSU’s summer and Maymester sessions, and
further, does not include permissions for
works posted to online classes or course web sites. Clearly,
with complete data, the permissions bill
would increase significantly. And that is just at GSU.
While that may not sound like an enormous expenditure for a
given institution, the revenues at stake
quickly become significant when put in context. According to
data from the U.S. Department of

Education’s Institute of Education Sciences, in 2009–2010,
there were 4,495 colleges, universities and
community colleges in the United States [18]. Of these, 2,774
were four-year colleges and universities,
and 1,721 were 2-year institutions. It is reasonable to assume
that many of these institutions utilize some
combination of e-reserves, online classes, and course web sites
in a manner similar to GSU. If only one
thousand (1,000) of those institutions act similarly to GSU in
terms of volume and usage of course
materials, it means lost permissions revenue of $14,307,500.
And, this figure represents the lost revenues
to only three (3) publishers. By the numbers, the stakes are
clear—the outcome of the case will
significantly impact the business model of the academic
publishing industry for decades to come.
IV. LONG AWAITED FAIR USE RULING
Judge Evans issued an approximately 350 page opinion on May
11, 2012 [19]. In addition to laying out
the general factual framework of the case and providing a close
examination of the nature of the fair use
defense as a matter of law, the order provides the most detailed
analysis provided by a court to date of the
application of those rules to seventy-five (75) alleged copyright
infringements in an educational setting.
(At trial, seventy-five (75) alleged infringements were litigated.
The opinion analyzes seventy-four (74)
different alleged infringements. One excerpt was used twice;
that is, it was used in the same course
offered in two different semesters.) The judge found only five
instances in which she concluded that
faculty members posted electronic materials in a manner

violating fair use. As a result, it may be easy to
conclude that this is a major victory for GSU, in particular, and
higher education in general.
Nevertheless, a closer examination of her ruling reveals a far
more mixed outcome than might appear.
A. Finds of Fact
By the time the case went to trial, the basic question in front of
the judge was whether the application of
GSU’s 2009 Copyright Policy resulted in violations of fair use.
Under that policy, faculty members were
provided a fair use checklist to evaluate whether permissions
were required for use of copyright protected.
As described by Judge Evans, faculty members were instructed
to consider each of the four fair use
factors [19, p. 39]. If at least three of the four factors favored
fair use, fair use was presumed to apply. If
only one factor favored fair use, permission was supposed to be
obtained. And if two of the factors
favored fair use, they were instructed to weigh the facts on both
sides before drawing a conclusion. GSU
offered training to faculty in the application of the policy and
use of the fair use checklist. According to
trial testimony: “Professors who attended these sessions were
told that there was no across-the-board
answer to [how much copying was allowed under fair use], but
that under fifteen percent would likely be
safe and that under ten percent would be ‘really safe’ …” [19,
p.39]. At trial, the publishers raised
seventy-five (75) instances of alleged copyright infringement
arguing GSU’s policy and its application by
faculty members illegally exceeded the limits of fair use.
B. Framework for Fair Use Analysis
In laying out the framework for applying fair use, Judge Evans
established the threshold question to be

answered for each alleged infringement. That is, in each
instance, the relevant publisher had to prove
ownership of a valid copyright to the work allegedly misused
[19, p. 44]. If a publisher could not satisfy
that threshold, the claim of alleged infringement failed for that
reason and no fair use analysis was
undertaken. When ownership of a valid copyright was proven,
the court then undertook a detailed
analysis of the fair use factors. Before examining alleged
infringements individually, the court spelled
out its interpretation of the manner in which each of the four
factors should be applied.
1. First Fair Use Factor: Purpose and Character of the Use
Including Whether Such Use
is of a Commercial Character or is for Nonprofit Educational
Purposes
While Judge Evans pointed out that use for nonprofit
educational purposes did not automatically qualify
as a fair use, she did conclude that the first factor favored GSU.
In arriving at this conclusion, she noted
all copying was done as part of teaching and scholarship.
Further, she rejected the publishers’ argument
that the first factor must favor them because the copied
materials were “mirror images” and not
transformative [19, p. 49-50]. In doing so, she quoted the U.S.
Supreme Court’s decision in an unrelated
copyright infringement, which stated: “The obvious statutory
exception to this focus on transformative
uses is the straight reproduction of multiple copies for
classroom distribution” [19, p.50].
2. Second Fair Use Factor: Nature of the Copyrighted Work

Like the first factor, the judge concluded the second factor
favored GSU [19, p. 54]. In arriving at this
conclusion, she pointed out that each case of alleged copyright
infringement involved the use of excerpts
of books chapters that are works of nonfiction “intended to
inform and educate” [19, p. 52]. Generally,
courts find this factor to favor copyright owners when the
copied works are more creative in nature. In
contrast, works of nonfiction that are more factual in nature
receive less protection and their use is more
likely to be permitted under fair use.
3. Third Fair Use Factor: Amount and Substantiality of the
Portion Used in Relation to
the Copyrighted Work as a Whole
Undoubtedly, Judge Evans’ framework for the application of the
third fair use factor is simultaneously
one of the most useful and controversial aspects of this opinion.
It is useful in that it provides specific
and somewhat formulaic answers to some fair use questions.
For that same reason, it is controversial.
This portion of the opinion begins by acknowledging that this
factor requires both quantitative and
qualitative considerations [19, p. 55]. The judge then goes on
to make the following rulings of law:
The “Agreement on Guidelines for Classroom Copying in Not-
For-Profit Educational Institutions
with Respect to Books and Periodicals” is not legally binding as
the standard for determining fair
use [19, p. 55-59].
Copying that is de minimis does not constitute copyright
infringement [19, p. 59].
Determination of the portion used requires evaluating the

portion copied in relation to the entire
work. The entire work includes not only the text within each
chapter but also includes the
material “before and after the chapter text of the book” such as
the table of contents,
acknowledgements, preface, foreword, afterword, and indices
[19, p. 60].
While fair use does not permit professors to copy the “heart of
the work” without obtaining
permission, an excerpt it not automatically the “heart of the
work” by virtue of a professor
selecting it for classroom use [19, p. 67-68].
Fair use law permits professors to use the same excerpt from
one semester to the next [19, p. 71].
It is not necessary to obtain permission to use an excerpt of a
nonfiction book when the excerpt
used is not the “heart of the work” and no more than 10% of the
work and the work either has no
chapters or has fewer than 10 chapters [19, p. 88].
It is not necessary to obtain permission to use an excerpt of a
nonfiction book when the excerpt is
not the “heart of the work,” is limited to 1 chapter (or its
equivalent), and the book has 10 or more
chapters [19, p. 88].
4. Fourth Fair Use Factor: The Effect of the Use on the
Potential Market for or Value of
the Copyrighted Work
Judge Evans defines the primary concern of the fourth factor to
be “market substitution. Where the
copyrighted original and defendant’s infringing work are
identical, defendant’s infringing copy substitutes
directly for the copyrighted original” [19, p.73-74]. She notes
there are two situations that must be
considered relative to the market for or value of the copied

work: the market for the entire book and the
market for licensed permissions [19, p. 74-75]. When evaluating
the market for the entire book, the
copied excerpt must be looked at in contrast to the whole.
When evaluating the market for and value of
licensed permissions, this must be analyzed relative to whether
“licenses for excerpts of the works at issue
are easily accessible, reasonably priced, and … in a format
which is reasonably convenient for users” [19,
p. 75]. In the case of the market for permissions, she
concluded: “factor four weighs heavily in [the
publishers’] favor when permissions for digital excerpts are
readily available. If excerpts are not readily
available … factor four weighs in [GSU’s] favor” [19, p. 80].
C. Application of Fair Use Framework to Individual Claims of
Copyright
Infringement
In applying the fair use framework to individual claims of
copyright infringement, the judge first
determined whether the relevant publisher proved ownership of
a valid copyright to the allegedly
infringed work. If not, no fair use analysis was undertaken and
the publisher lost on that claim. Of the
seventy-five (75) cases of alleged infringement evaluated, the
judge found sixteen (16) instances in which
the publisher could not prove ownership of a valid copyright
[19, p. 89-337]. In many of these instances,
the problem related to the publishers’ inability to produce
contracts between the publisher and author(s)
documenting who owned the copyright.
The second issue analyzed in each case related to whether the
copying was “de minimis” and therefore

not a copyright infringement. The judge found this to be true in
ten (10) instances [19, p. 89-337]. In
seven (7) of these cases, an excerpt of a copyright protected
work was posted to an e-reserves system, but
was not actually used by students as evidenced by the low
number (usually three (3) or fewer) of “hits”
(number of times accessed). In addition, there were three (3)
other situations the court classified as “di
minimis.” One occurred when an excerpt of a book was posted,
but was also from a book the students
were required to purchase for the course. The second involved
a situation in which an excerpt was
posted, but the course was later cancelled due to low
enrollment. In the third situation, an excerpt was
posted but was later removed when the instructor realized the
library did not own the book from which
the excerpt originated.
For the remaining forty-nine (49) alleged copyright
infringements, the court evaluated each one by
applying the rules for each of the four fair use factors. After
doing so, the court found:
Twenty-four (24) instances in which GSU prevailed because the
excerpt posted was within the
limits established. That is, for books with fewer than ten (10)
chapters or no chapters at all, the
posted excerpt was less than 10% of the total pagination.
Nineteen (19) instances in which GSU prevailed because the
publisher did not offer a permissions
program for digital copies or the evidence showed the market
for permissions was small.
Five (5) instances in which GSU violated fair use. Each
violation involved the same type of
situation. In each instance, the challenged excerpt was taken
from a book that had more than ten
(10) chapters and in each instance the excerpt exceeded the

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