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Visual Copyright: Five Best Practices for Teaching with Images
William M. Cross, M.A., J.D. Digital Copyright Specialist
The photographer Ansel Adams famously quipped that "nothing is worse than a sharp image of a fuzzy concept." For many instructors who have excellent content expertise, the knowledge of legal rules governing use of visual images and film may well be quite fuzzy. In addition to a lack of overall understanding regarding the legal aspects of using someone else’s work, there is also a common perception that it is both difficult and expensive to get permission to use copyrighted material. Hopefully the following five topics can help bring issues of visual copyright into focus so that we can all make full and safe use of images in instruction.
1. Assume It's Copyrighted
The first question you should ask when considering using an image is whether it is under copyright. Many assume that copyright only exists where you see the little © symbol. Not so; under current law, copyright protection is immediate and omnipresent. With a few exceptions for very old works and some government documents, as soon as a work is fixed in a tangible medium of expression, copyright automatically exists. What this means is that most images found online, in books, in magazines, and pretty much anywhere you might find them, can be assumed to be under copyright. As such, they are owned by a person or corporation and permission must be granted for anyone else to use them.
2. Know Your Exceptions
Fortunately, copyright law recognizes the unique role that education plays in society, and establishes several exceptions to the control granted to the copyright holder when we make educational use. Section 110 of the Copyright Act delineates two specific educational exceptions to copyright. In situations where these apply, an instructor may use any work without permission.
Face-to-Face Teaching
The first exception, Section 110(1), is often called the "face-to-face teaching exception." This exception allows an instructor to display or perform a copyrighted work without permission as part of classroom instruction. For example, a chemistry professor could display a chart or table, or an English professor could recite a poem in front of the class, without fear of a copyright violation. This exception does not permit copying or distributing images and, as the name suggests, only applies to face-to-face teaching in a classroom or similar place devoted to instruction.
Instruction Online
The other major educational exception, called the "TEACH Act," is described in Section 110(2). This exception applies where instruction is being done online through a web page or course management system such as Blackboard or Sakai. For text and static images, the TEACH Act is fairly comparable to 110(1) discussed above. Works can be displayed or performed in amounts comparable to in-class use, and the context must be analogous to a classroom, in that access must be limited to enrolled students being overseen by an instructor. TEACH also limits use of music and video to "reasonable portions" of a work.
The law does not provide a simple answer to the commonly-asked question of what makes a portion "reasonable". Most popular guidelines based on using only "such-and-such a percent of the work" are based on institutional policy, not legal language. In general, it is "reasonable" to use an amount equivalent to what you might use in class that is necessary for the instructional activity you are engaging in.
An instructor might use this exception to show students a collection illustrating the specific techniques of Impressionist works in Blackboard or to host brief video clips contrasting several different productions of Hamlet on their password-protected web page. In each case, the appropriate amount would be as much as is needed to make the instructional point clear: four or five Impressionist works that highlight the main techniques, for example; or five to seven clips from different productions of Hamlet running several minutes each, as needed to illustrate the production design, costumes, directorial choices; and so forth. A good-faith effort to tailor your use to the subject being taught and to confine the amount to roughly what you might do in a physical class session will generally guide you correctly.
3. Understand Fair Use
The other primary exception available to instructors is fair use. Unlike the exceptions described above, this exception is not directed specifically at instructors. Instead, it is a general exception for socially-valuable uses that specifically mentions education as a privileged type of use. If a use is fair it can be made without permission. Also unlike the exceptions discussed above, the conditions for applying fair use are not explicitly spelled out. Instead, fair use is an "equitable rule of reason" that looks to the unique facts of each use to determine if that use is fair (i.e., reasonable).
We are given four factors to consider when determining if a use is fair or not: the purpose and character of the use, the nature of the material used, the amount and substantiality used, and the effect on the market of the original. In simpler terms: ask what you are doing, what you are using, how much you are using, and if your use devalues the market for the original.
Use that is often made in instruction - that is educational, uses only some of the original, and does not compete with the original in the marketplace - is often fair. Use that is commercialized, that borrows the heart of a creative work or appropriates wholesale from the original is less likely to be fair.
4. Respect the Creator and Your Students
When it comes to teaching and learning using copyrighted materials, there are three principal players involved: the instructor, the creator of the material, and the student. As scholars, we are both creators and users of copyrighted works. Integrity within higher education presupposes that we respect the work of individuals who have created the images we wish to use. Attribution and permission may not always be required by the law, but it is good practice to give credit where due and seek permission where needed. By the same token, creators should, and often do, respect instructors that wish to use their work in good faith by granting permission for such use readily and with a minimum of restrictions.
Additionally, instructors should be respectful of their students' need to use works in class and in their own work. Being overly-deferential to copyright holders can diminish your ability to be an effective instructor and to let your students creatively engage with the material. Copyright in education is all about balance.
5. Ask your Librarian
This is a complex area, and the short descriptions noted above offer only a snapshot of these issues. The good news is that you are not alone. The libraries on campus have many resources in the areas of using digital media and obtaining copyright available to assist you. The Course Reserves staff can help you collect and present works to your students. The Media Resources Center has gathered and licensed an excellent collection of images and videos for your use. Our Reference and Instruction department can guide you through instructional design and coordinate e-learning for your classes. And, as your Digital Copyright Specialist, I am always available to answer your questions and explain issues in visual copyright and beyond.
Follow these best practices, and you will be well on your way to using striking images and illustrations to engage your students in a way that respects the individuals who spent both time and resources to create the work that drew your interest.
