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Fair Use and Copyright for Online Education: Examples: Images

Presents copyright concerns regarding online instruction and offers guidance in applying fair use when appropriate.

Two key fair use questions

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?

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

— Association of Research Libraries, Code of Best Practices in Fair Use for Academic and Research Libraries (2012)

Tips for using images in online education

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.

Resources for using images in online education

Disclaimer

The examples below are intended to model the thought processes instructors should engage in when determining whether an intended use is fair given the particular facts at hand. A final determination of fair use can only be made in a court of law. This guide is not intended as legal advice. If you have legal concerns about a particular use at the University of Rhode Island, please contact the university's General Counsel

Images example #1

Professor Jones is teaching a MOOC on the relationship between humans and the environment in which anyone is free to enroll. One of the topics she is covering is the 2010 Russian wildfires that broke out due to record temperatures and drought in the region. The smoke from the fires produced smog that affected Moscow and other urban areas. Professor Jones found a newspaper article online about the fires, with an image from the Associated Press of tourists in Red Square wearing face masks to protect themselves from the smog. She wants to use this image in her online lecture notes to show just how bad the smog in Moscow was. 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 Jones's use is not transformative, since she is using the image for the same reason as its original purpose—to show the impact of the fires.

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

Given that the image is a creative work, that it was used in its entirety, and that the use is not transformative, the material taken is not appropriate in kind and amount.

Fair use: No.

Possible alternative: Professor Jones could substitute an image with an open license that would illustrate the effect on air quality in Moscow of the wildfires. To search for an open-licensed image, she could use Wikimedia Commons, Flickr Creative Commons, or an advanced Google Image Search.

Images example #2

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 Sakai 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.

Images example #3

Professor Banerjee is teaching a face-to-face management course that has an online component. His lectures are captured on video and then posted in Sakai 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. 

Images example #4

Professor Gottlieb teaches a class in wildlife ecology and management. She has "flipped the classroom," requiring students to read her lecture notes in Sakai ahead of time so that class meetings can be used for active learning exercises, field trips to the nearby forest, discussion, and student presentations. To make her lecture notes more visually appealing, Professor Gottlieb has broken up the monotony of the text by inserting miscellaneous line art drawings of animals that she scanned from a field guide to wildlife published in 1996. 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 Gottlieb's use is unlikely to be transformative. The original purpose of the line art drawings is to assist in identifying wildlife, and Professor Gottlieb's use is for aesthetic purposes. While these purposes are different, Professor Gottlieb's use does not serve a broadly beneficial purpose or add value to the drawings; the images serve merely as "window dressing" for her course content.

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

Given that the images are creative works and that the use is not transformative, the material taken is not appropriate in kind and amount.

Fair use: Probably not.

Possible alternative: From a pedagological standpoint, Professor Gottlieb could reconsider her use of images for a purely aesthetic purpose and instead use Wikimedia Commons, Flickr Creative Commons, or an advanced Google Image search to identify open-licensed visual content that would be directly relevant to the content of her notes. If she were determined to use images solely for aesthetic purposes, a search for open-licensed content would reveal that the U.S. Fish and Wildlife Service has a collection of line art drawings of animals that are in the public domain and therefore free of copyright restrictions (as are all federal government publications).

Images example #5

Professor Sanchez is a tech-savvy art history professor who is a big believer in Open Educational Resources. 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. In addition to the lecture videos on YouTube, Professor Sanchez has created a number of sets on Flickr to which he has uploaded his sculpture photographs in order for students and others to conveniently view them. 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, 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.

Professor Sanchez's posting of the photographs on Flickr is not transformative because the images are no longer in the context of his course lecture. The images appear on Flickr as aesthetic objects, essentially serving the same purpose as the original sculptures.

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.

Given that the sculptures are creative works and that posting photographs of them on Flickr is not transformative, the material taken is not appropriate in kind and amount.

Fair use: Yes for the lecture videos on YouTube; No for the images on Flickr.

Note: The URI Libraries has a subscription to ARTstor Shared Shelf, a product that allows faculty members to curate their own collections of images and limit viewing of the images to particular classes or to the broader URI community only. This would be a good alternative to Flickr in this instance.

Images example #6

Professor McCullough is preparing to teach an online course on Impressionist painting in which she plans to assign students to view numerous images of paintings from that period. While she was able to find most of the images she will need by using the institution's subscription to ARTstor, there were a handful of paintings that weren't available there. She searched Flickr and found straighforward photographs of some of the missing paintings, but the permissions were set to "all rights reserved." She downloaded the images anyway and placed them in a folder on the Sakai site for the course, figuring students can view them from there. Is this fair use?

Analysis

There are two potential copyrights involved in this case: the copyright in the paintings and the copyright in the photographs of the paintings.

In the case of the paintings, a fair use analysis is not necessary. The paintings themselves are in the public domain, because they were painted in the 19th century. (If the paintings were still protected by copyright, the professor would need to make case for fair use and would therefore want to be sure to place the photos of the paintings in a transformative context, as opposed to just copying them and placing them in a folder.)

With regard to copyright in the photographs, a federal court ruled in 1999 that a direct, accurate photographic reproduction of a two-dimensional work of art does not have enough originality to qualify for copyright protection. The underlying work of art may be protected by copyright, but not the photograph (Bridgeman Art Library, Ltd. v. Corel Corporation, 36 F.Supp.2d 191). Therefore, Professor McCullough is free to use the photographs she found on Flickr without seeking permission from the photographer or relying on fair use. 

Note: If Professor McCullough sought to use Flickr content that was legitimately protected by copyright without making a case for fair use, she could have included links to the images on Flickr in her course materials rather than copying the images by downloading them. Linking to materials is ordinarily not a violation of copyright but rather a technological instruction for locating materials.

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