Copyright for Faculty

To best position yourself to assert a fair use argument when using images, consider doing the following:

• Link to the images if possible rather than making an electronic copy available to students. Linking to materials is ordinarily not a violation of copyright but rather a technological instruction for locating materials.
• If copying an image, use the lowest image resolution possible to achieve your purpose.
• Avoid copying images from materials created and marketed primarily for use in courses such as the one at hand (e.g. from a textbook, workbook, or other instructional materials designed for the course). Use of more than a brief excerpt from such works on digital networks is unlikely to be transformative and therefore unlikely to be a fair use.
• Make sure that the images serve a pedagogical purpose. Avoid using images as "windowdressing," or for aesthetic purposes only. 
• Place the images in the context of the course, explaining why they were chosen and what they are intended to illustrate. Recontextualize the images when appropriate through the addition of study questions, commentary, criticism, annotation, and student reactions.
• Limit access to the images to students enrolled in the course.
• Notify students that images are being made available for teaching, study, and research only.
• Provide attributions to known copyright owners of the images and any works depicted in the images.

Professor Lee is teaching an online photography course. His colleague Professor Jones had showed him an image from the Associated Press of tourists in Red Square wearing face masks to protect themselves from the smog during the the 2010 Russian wildfires. Professor Lee felt that this photograph was a particularly good example of image composition and depth of field. He decided to use the photo in his online lecture notes for the class, which he makes available on his personal website without access restrictions. In the text surrounding the image, Professor Lee clearly stated his purpose in displaying the image, explaining in detail how the image exemplifies the photographic concepts he is discussing. Is this fair use?

Analysis

1. Did the use "transform" the material taken from the copyrighted work by using it for a broadly beneficial purpose different from that of the original, or did it just repeat the work for the same intent and value as the original?

Yes, Professor Lee's use is transformative. The original purpose of the photo was to illustrate how bad the air quality was in Moscow during the wildfires. Professor Lee's purpose for using the photo is to illustrate concepts and techniques in photography.

2. Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?

Because Professor Lee's use is transformative, and because it is necessary for him to use the entire image in order to illustrate the photographic techniques he is presenting, the material taken is appropriate in kind and amount, even though the image is a creative work.

Fair use: Yes.

Note: The fact that Professor Lee's lecture notes are freely available on his website does not in and of itself undermine his fair use argument. However, his use is more likely to be challenged by the rightsholder than if he had used a course management system like D2L to limit access to only the students in his class. Access restrictions are not a requirement of fair use, but they demonstrate a good faith intention to limit the use of the image to educational purposes.

Professor Banerjee is teaching a face-to-face management course that has an online component. His lectures are captured on Panopto and then posted in D2L for students to review. The videos also capture Professor Banerjee's PowerPoint slides. At the end of a lecture on management styles, he included a Dilbert cartoon strip as the final slide. The strip depicts Dilbert wearing Mickey Mouse ears for Halloween and stating that he is dressed up as "someone's management style." Professor Banerjee intended the cartoon to be a bit of comic relief related to the topic. Is this fair use?

Analysis

1. Did the use "transform" the material taken from the copyrighted work by using it for a broadly beneficial purpose different from that of the original, or did it just repeat the work for the same intent and value as the original?

No, Professor Banerjee's use is not transformative. The original purpose of the comic strip was to amuse the reader, and Professor Banerjee is essentially using the strip for the same purpose—to amuse his students. 

2. Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?

Given that the comic strip is a creative work and that the use is not transformative, the material taken is not appropriate in kind and amount.

Fair use: No.

Note: If Professor Banerjee had displayed the Dilbert strip in the context of a lecture on the depiction of management in contemporary popular culture, explaining why he was using the strip and specifically what the strip illustrated, this would likely be a fair use. 

Professor Sanchez is a tech-savvy art history professor. This semester, he is teaching a large lecture class on 20th century sculpture. He records each lecture on video and posts the videos on YouTube for his students to refer to, as well as for anyone else who might be interested in the topic. During each lecture he uses photographs of modern sculptures that he took himself in museums and public spaces around the world. As he displays each photograph, he places the sculpture in historical context and discusses the themes evoked by the artwork as well as the techniques used by the artist. He often highlights similarities and differences between works. The photographs of the sculptures are captured, along with his commentary, in the lecture videos. Is this fair use?

Analysis

Before beginning a fair use analysis, it is important to understand that while Professor Sanchez owns the copyright in his photographs (unless he took them as part of his job at SCC), copyright in the sculptures themselves is held by the sculptors. (Since these sculptures were created in the 20th century, most of them will still be under copyright.) Professor Sanchez's photographs of the sculptures are essentially derivative works, as in a film adaptation of a novel, and without a fair use case would require a license from the sculpture's rights holder.

1. Did the use "transform" the material taken from the copyrighted work by using it for a broadly beneficial purpose different from that of the original, or did it just repeat the work for the same intent and value as the original?

Professor Sanchez's use of the sculpture photos in his lectures is transformative. The original purpose of the sculptures is aesthetic, and Professor Sanchez is displaying his photos of the sculptures for educational purposes. His lectures place each sculpture in a broader context of 20th century sculpture. The professor's fair use argument would be strengthened if he limited his lecture videos to students enrolled in the course, but it is by no means invalidated by the availability of the videos on YouTube.

2. Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?

Because Professor Sanchez's use of the images in his lectures is transformative, and because it is necessary for him to show the entire sculpture in order to discuss it, the material taken is appropriate in kind and amount, even though the sculptures are creative works.

Fair use: Yes.

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