Our second post of Day Three of the 10th Anniversary of Fair Use Week with a write up from Carla Myers, fair use expert and creator of the Kraemer Copyright Conference (now also celebrating 10 years this summer!) Join Carla as she explores the critical relationship between library reserve systems and fair use. -Kyle K. Courtney

Fair’s fair! Celebrating the Ongoing Impact of Fair Use on Course Reserve Services

by Carla Myers

At 175 words, the fair use statute is fairly short, especially when compared with other sections of U.S. copyright law. It’s impact on libraries and academia is tremendous though, especially when it comes to course reserve services, which play a critical role in connecting instructors and students with required and supplementary learning materials used for teaching, research, and the creation of new scholarship.

While physical works such as books and DVD’s are circulated via print reserves under the first sale doctrine, copies of protected works library staff make and circulate via reserve services are almost always made available under the auspices of fair use. For example, an instructor may wish to have students read a selection from a book in preparation for an in-class discussion. Working through the four factors of fair use, library staff decide that their photocopying of the selection would be considered fair under the law and circulate it to students.

During the heyday of print reserve services in the 1980’s and 1990’s it was not uncommon for libraries to make hundreds of readings available this way. With the emergence of electronic reserve services in the late 1990’s and early 2000’s, many of these readings shifted format, with PDF’s replacing photocopies and students bring able to engage with the readings any time of day from any place they had an internet connection. Later, technology emerged that allowed libraries to make film and music available to students and instructors via media reserve services. No matter the format, several key factors remained the same in fair use evaluations for works instructors were looking to make available via reserve services.

The purpose and character of the use…

The first factor of fair use will weigh heavily in the library’s favor when works are being made available via reserves for educational purposes that support the teaching and learning mission of the institution.

The nature of the copyrighted work…

While more creative works generally receive greater protection than fact based works, a variety of works many legitimately be used for teaching and, as such, the use of works of fiction, popular movies, etc. would not necessarily weigh against a finding of fair use.

The amount and substantiality of the portion used…

The third factor places no limits on the amount of a work that can be reused and be considered fair. There are numerous cases where the courts have found that the reuse of 100% of a work to be fair, and others where the reuse of small portions of a work have been found to be infringing. Here, a use is more likely to be considered fair if the instructor requests and the library makes available only as much of the work needed to effectively teach the lesson or illustrate a point.

The effect of the use upon the potential market…

When considering the fourth factor, staff will likely wish to determine if a license can be obtained for the excerpt the instructor is looking to make available via print, electronic, or media reserve and factor its availability (or lack of availability) into their analysis.

Though it took almost twelve years to reach its conclusion, the Georgia State electronic reserves case confirmed that fair use, when thoughtfully exercised, can be used by libraries providing reserve services to their campus communities. In 2008, Cambridge University Press, Oxford University Press, and Sage Publications, with financial backing from the Copyright Clearance Center and the Association of American Publishers, filed suit against Georgia State University (GSU), claiming they had infringed copyright by posting selections from books they published to their library’s electronic reserves system and requesting, among other things, an injunction from the court to force GSU to stop making them available. The case was litigated over twelve years, and in 2020 GSU was declared to be the prevailing party. Of the original 99 claims of infringement put forward by the publishers, the judge ruled that 89 were fair uses. I encourage readers to review the opinions in this case as they provide interesting insights into conducting fair use analyses. They can be found alongside articles and resources summarizing the case on this LibGuide developed by Laura Burtle, Associate Dean for the Georgia State University Library.

Now Controlled Digital Lending (CDL) provides libraries with an opportunity to expand reserve services even farther by circulating full digital copies of works “in place of a physical one in a controlled manner.”[1] This an exciting development in general, but especially for those students enrolled in online degree programs as it can allow them to fully engage with the library’s print collection in a timely manner, whereas before they often had to rely on books traveling to them via the mail though home delivery services offered by libraries. Making course materials available via CDL also offers an alternate option for engaging with resources to students whose health and wellbeing may present them from leaving home at times, or who find themselves facing a personal or family emergency that results in unexpected travel away from campus. The legal theory behind CDL includes fair use, building upon the ways in which libraries have exercised this user right to connect patrons with services and resources.

Much of my professional career has been spent supporting reserve services and answering questions about the related copyright issues. I’m excited to share that in the fall of 2022 I published book on this very topic, Copyright and Course Reserves: Legal Issues and Best Practices for Academic Libraries, from Libraries Unlimited (978-1-4408-6203-8). One of the largest chapters is devoted to fair use, and I hope it will be helpful to those working in libraries looking to better understand how to exercise this user right.

 

When talking about fair use I always encourage folks to stick to the four factors when making their determination, avoiding arbitrary ‘guidelines’ that have nothing to do with the law (e.g., that fair use only allows you to reuse 10% of a work). However, I will tell those working in libraries that when making fair use determinations we also need to remember our mission and ensure we’re not letting fear of litigation prevent us from fully exercising rights granted to us by Congress in copyright law. In the few fair use cases brought against libraries (in which almost all the libraries have been the prevailing party!) the courts have viewed favorable thoughtful applications of fair use that balance the rights granted to creators of copyrightable work under the law and patron needs. There will be times when staff need to say “this request goes beyond the scope of fair use and we can’t make this work available through electronic reserves” though other options almost always exist, such as circulating a physical copy of the work via print reserves under the first sale doctrine. Hopefully, more often, after making a thoughtful fair use determination, library staff will find they can say “this request seem fair and we can make it available via reserve in support of our mission and that of our educational institution.”

Carla Myers serves as Assistant Professor and Coordinator of Scholarly Communications for the Miami University Libraries. Her professional presentations and publications focus on fair use, copyright in the classroom, and library copyright issues

[1] Bailey, L., Courtney, K. K., Hansen, D., Minow, M., Schultz, J., & Wu, M. (2018, September). Position statement on Controlled Digital Lending. https://controlleddigitallending.org/statement

I am delighted to present the third day of the 10th Anniversary of Fair Use Week with a guest post by copyright expert Sandra Aya Enimil from Yale University. In this post Sandra explores a bit of the pending Warhol decision through the lens of the subjects that may not always have rights in images that contain their likeness. -Kyle K. Courtney

Who Owns My Image? – A Fair Use blog about a Fair Use case (But this blog is not totally about Fair Use)

by Sandra Aya Enimil

It’s Fair Use Week and I was asked to write about a Fair Use topic, which I have done (here and here) for a few years now. This year though, I want to write about an issue that I have been thinking a lot about and it is related (tangentially) to an important Fair Use case on the minds of many. For this Fair Use Week 2023 blog , I am not fully discussing Fair Use, I want to discuss pillars of copyright law, and incredibly the important elements  of fixation and ownership.

Many people are following Warhol v.  Goldsmith, which was heard by the United State Supreme Court in October 2022. The case results from a dispute between the two artists, Andy Warhol and Lynn Goldsmith over a photograph of another artist, Prince.  Goldsmith is the original artist; Warhol received a copy of the image and created variety of colorized and enhanced versions of the image. Warhol, and later his estate, sold originals and prints of his versions of the image.  We now await a decision from the Supreme Court on whether Warhol’s use is Fair Use. There’s no doubt that a determination of what is transformative Fair Use is the main issue at play in this case.

The photo on the left was taken by Lynn Goldsmith and was licensed by Vanity Fair. Vanity Fair provided the image to Andy Warhol who then created the series on the right. The highlighted Warhol image was used in article after Prince’s death.

While I am curious about the forthcoming decision, something about the case had been bugging me and could not articulate it until I viewed a panel presentation from Professor Emily Behzadi about Warhol hosted by Jeffrey Prystowsky at Roger Williams University School of Law. Behzadi spoke about Prince as the subject of the photograph and the center of the controversy, but not one with the power of a copyright.

Her presentation made me recall another panel presentation by Professor John Tehranian on a similar theme:  cultural appropriation. Behzadi and Tehranian discuss race and gender implications regarding copyright authorship and the lack of copyright interest in images in one’s own likeness.  In photography, the person who snaps the photo, paints the portrait, who fixes the image in a tangible means of expression, is the copyright owner. In Warhol, Prince, or a representative, likely signed away his claim for any and all rights in the images taken by Goldsmith. While copyright was probably listed among the disclaimed rights, currently, a subject of a photo would typically never be considered a rights holder of the image unless they took the photo (selfies anyone?).   Goldsmith was and is the rightsholder of the images she took of Prince. The Warhol Foundation is making a Fair Use claim for the creation of the Prince series. Why doesn’t Prince, or now his estate, have any claim?

The interrogation of the assumption that subjects should have no interest in photographs is longstanding. A recent case, Lanier v Harvard, where the descendant of enslaved persons in a photographic collection[1] sought redress for use of the images, continued the conversation about the rights, not just of subjects, but of their descendants.

The descendant, Tamara Lanier, initially brought, among several claims, a copyright property interest claim. This claim was not allowed to move forward due to the issue of authorship and ownership (in June 2022, the Massachusetts Supreme Judicial Court allowed the case to proceed on a claim of emotional distress.). The photos were commissioned by professor and known white supremacist, Louis Agassiz on behalf of Harvard University. Harvard owns the copyright. The subjects, include ancestors of Ms. Lanier, Papa Renty and his daughter, Delia, had no property interest as subjects. Further as enslaved individuals at the time, they had no rights around consent or any other non-copyright rights photographic subjects might expect.

Attorney Josh D. Koskoff, left, Tamara Lanier, and Attorney Ben L. Crump, right. Massachusetts Supreme Judicial Court in Boston, November 2021. Photo by Raquel Coronell Uribe: https://www.thecrimson.com/article/2022/6/24/lanier-supreme-court-remanded/. Edited photographs of Delia and Papa Renty.

There’s also been engagement on social media, fascinatingly, on this issue as well. Consider the Twitter thread below by Dr. John Mason. Mason focuses on the person who is subject of the photograph and their agency, or not, in being photographed.

What would photojournalism & documentary photography look like — now & in the past — if the photographer's right to take someone's image were balanced by that person's right to say No?

— John Edwin Mason (@johnedwinmason) December 29, 2020

The photographer's right to take has been & is rooted in a connection to power–cultural, economic, political. The poor, the marginalized, & the oppressed have never had a parallel right to refuse to have their image taken because they lack & have lacked that connection to power.

— John Edwin Mason (@johnedwinmason) December 29, 2020

Say her name: Florence Thompson. When the well-dressed government lady in the big car stopped & asked if she could take her picture, she was in no position to refuse. She became the iconic face of the Great Depression, & she resented it. (Photo: Dorothea Lange/FSA) pic.twitter.com/pPxzsxcu67

— John Edwin Mason (@johnedwinmason) December 29, 2020

"I wish she hadn’t taken my picture. I can’t get a penny out of it. [Lange] didn’t ask my name. She said she wouldn’t sell the pictures. She said she’d send me a copy. She never did." https://t.co/7djZTLJvdD

— John Edwin Mason (@johnedwinmason) December 29, 2020

Actress and model, Emily Ratajkowski, echoed the sentiments of Florence Thompson, wondering why she, as a subject voluntarily or involuntarily, had no rights in images that contain her likeness. As with Prince, Ratajkowski likely signs releases for her commercial work as a model[2] and as a famous person, she is the subject of many photos where no permission is sought. She has even sued by a photographer for reusing an image of herself on her own social media page. Why can’t she have a copyright interest in the images of herself?

So, what is the solution? Should the person in the photo have rights in the image just as the person who created the image? Or perhaps following copyright considerations for oral history interviews, where the interviewee and the interviewer could both contribute copyrightable elements, should there be a joint or split copyright? Should we add a copyright interest for the subject of photos?

Many copyright scholars lament adding more rights to copyright law, arguing that copyright cannot be expected to “do it all.” In 1865, the category of photography was added to works that could be copyrightable[2] in the United States.[3] Forty years later audio-visual works (like motion pictures and films) were added. We have continued to add categories and refined definitions of author/creatorship, why not add another thing, a right for persons who appear in copyrighted works?

I can hear my copyright colleagues and researchers screaming at their laptops, “how is that going to work!?” I have no idea, how does any of this work?[4] But I do know, if a copyright interest for subjects in copyrighted works were added, Fair Use could apply to those copyrighted works.

Sandra Aya Enimil (she/her) is the Program Director for Scholarly Communication and Information Policy at Yale University Library. At Yale, Sandra provides strategic insight on licensing, scholarly communication, Open Access, copyright, and publishing issues. She is the Chair of the License Review Steering Committee and provides consultation on licenses of all types for the library. Sandra also provides information and resources on openness, Open Access, using copyrighted materials and assists creators in protecting their own copyright. Sandra collaborates with individuals and departments within the library and across campus. Sandra is committed to diversity, equity, and inclusion (DEI) and is interested in the intersection of DEI and intellectual property. 

This blog is cross posted on the Conversations on Copyright at Yale Library Blog: https://campuspress.yale.edu/copyrightconversations/

[1] Carrie Mae Weems appropriated the images of enslaved people from the Harvard Archives in her artwork. Harvard later threatened a lawsuit, Ms. Weems felt her use was a Fair Use said she welcomed Harvard to continue the conversation in the courts. Harvard acquired the artwork. https://legalleft.org/wp-content/uploads/sites/11/2014/07/Murray.pdf

[2] Ratajkowski disputes signing a license for a photoshoot for a certain magazine, the photographer has since released multiple books using photos that were not used for the magazine. Ratajkowski considers those photos to be unauthorized use of her likeness

[3] There was a lot of debate about the creativity involved in mid-19^th century photographs.

[4] In Burrow-Giles Lithographic Co. v. Sarony (1884), the Supreme Court confirmed that the U.S. Congress had the right to extend copyright protection to include photography: https://www.law.cornell.edu/supremecourt/text/111/53

[5] Basically we made up these laws, why not make up a few more?