On the CELJ listserv (Council of Editors of Learned Journals) this week, an editor asked about how many images she could use in an author’s piece of scholarship analyzing those images. She wanted resources for where to go to learn more about Fair Use. (This is a great step forward based on my familiarity with the list’s previous lack of interest in anything “fair” or “open”. So I was happy to let this be my first response on the list after recently rejoining.
Good advice from lots of folks so far. I’ll chime in and say that I’ve found — in editorial work and teaching about copyright and Fair Use in my digital media & digital publishing classes — that the Center for Social Media’s “Code of Best Practices in Fair Use” set of documents is *highly* useful. They are always adding new documents to the list, but so far, they include
- Documentary Filmmakers’ Statement of Best Practices in Fair Use
- Code of Best Practices in Fair Use for Online Video
- The Code of Best Practices in Fair Use for Media Literacy Education
- Code of Best Practices in Fair Use for Poetry [ooh, this one’s NEW! :)] (http://www.centerforsocialmedia.org/fair-use/best-practices)
and perhaps the most relevant for this discussion:
- Society for Cinema and Media Studies’ Statement of Fair Use Best Practices for Media Studies Publishing
Now, I know we’re not all Cinema and Media Studies folks (I’m not). But Martha’s question borders on this field in that the scholar she’s talking about *needs* the images to make her argument. (And many literature and other scholars do more and more these days.) This last document (and most of them in the list) discusses the four principles of Fair Use extensively and provide case scenarios for how to use media in scholarship and claim it under Fair Use.
(Four principles of Fair Use: http://www.copyright.gov/fls/fl102.html
• The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
• The nature of the copyrighted work
• The amount and substantiality of the portion used in relation to the copyrighted work as a whole
• The effect of the use upon the potential market for, or value of, the copyrighted work)
While one respondent here (can’t remember who) said Fair Use is difficult to argue in court, what I would like to add to that statement is that Fair Use is not nearly tested enough in court, so we don’t have a lot of case law to point to. Presses often require use & reproduce permissions to cover their financial butts (so to speak), not because they are interested in the game of allowing scholars to actually do the work of critique we are required to do.
Unfortunately, many times, Fair Use requires us to stand up and push back against the status quo of mega-publishing corporations. That’s not fun for a lot of folks. But small steps, like if you have the ability as editor to revamp your copyright and permissions policies for your journal, will work towards better allowing our authors to do what they need to do.
On a final note, there is overkill when it comes to trying to claim Fair Use. e.g., does the author *really* need all 17 of those images? Or will two or three suffice? This is a rhetorical question (and not in that unanswerable way, as I’m sure y’all know). I mean, what is the rhetorical situation of the piece of scholarship that requires it to need certain copyrighted pieces of “text” in order to make its argument? If the author can justify it, and you can approve that justification without much reading into things, then that might be a good case for Fair Use. But, yeah, there’s no “right” answer here. Practice makes perfect 😉