Copyright and Writing

How might you more effectively integrate multimedia components into your assignment?

“Let rhetoric be an ability, in each case, to see the available means of persuasion.”
– Aristotle, 
Rhetoric (1.2.1)

With great resources comes great responsibility.

Composition does not merely refer to the writing of words on a paper or in a word processing document but also includes the holistic act of using all forms of media (images, videos, sounds, and texts) in a variety of different mediums (paper, blogs, websites, YouTube, podcasts, etc.). Embedding images into your blogs posts, remediating text into images, and cutting and remixing video and audio are now daily realities in the writing classroom. If Aristotle were still around today, he would surely adjust his working definition of rhetoric to encompass not only the ability to see but also the ability to use the available means of persuasion—and there’s a lot out there.

However, when you begin to use these resources in your own compositions, you’ll find that it’s not as simple as taking whatever you like. When we start composing with sound, audio, video, and image, we’re much more likely to bump into legal guidelines as well. Copyright laws address which resources you can use, why you can or cannot use them, and how much of them you can use. The best way to ensure that you are using digital resources ethically—and legally!—is to stay informed. Unfortunately, staying informed on issues surrounding copyright laws can be very complicated, as sources that explain the laws tend to be intentionally vague, technical, and political. Below you will find a series of main points that attempt to provide a basic framework for understanding current copyright laws as they pertain to the multimedia resources you will inevitably be using throughout your time in composition and beyond.

Educational versus Commercial Use

As seen in the video, there is a big—and I mean big—difference between using content for educational purposes versus using content for commercial purposes. Because we are in an academic context, both students and teachers alike have more free range in how they can use content. Movies can be shown, music can be played, and readings can be distributed as handouts because they are for strictly educational purposes and take place in face-to-face classroom settings. However, do not assume that the practices for using content in school are the same when you post material to the world online, share it outside of class, or even if you are trying to make money on campus.

Fair Use Doctrine

Content used for educational purposes falls under the copyright doctrine of fair use. Fair use is the right to use copyrighted material without permission or payment under some circumstances.

And for people who love to make things, fair use is good news! It reminds us of the original purpose of copyright law as described in the U.S. Constitution: to encourage people to compose new works. After all, if people thought their writings, videos, and sounds could be reused freely by anyone, many composers would be unable to sell their work and make a living, so they might stop composing altogether. But that right to protect work you create shouldn’t be 100% restrictive; there should be times when others can legally use parts of your work as they make new compositions. That’s the whole point: encouraging people to make creative new compositions.

That’s where fair use comes in. It says, in effect, “If you’re careful about how you use copyrighted work, you can do so without asking for permission from the creator of the work or the copyright holder. Be careful, but go and create new things!”

But there’s a problem: the fair use doctrine is tough to apply exactly. From a legal standpoint, decisions revolve around four factors. Your answer to each of these questions will determine whether or not your use of content will indeed be characterized as fair use.* (There are also excellent online resources to help you think through where you stand on each of these factors. One of the best is “Thinking Through Fair Use” at the University of Minnesota’s University Libraries site.)

  1. What is the purpose of your use of the copyrighted work? You first need to consider whether or not your use is for commercial or educational purposes.
  2. What is the nature of the copyrighted work? This question really comes down to whether or not the work is fact-based or creative. Ideas or facts cannot be copyrighted, but if you begin to enter into the area of creative expressions, then you will need to further qualify your work.
  3. How much of the original work are you going to use? Typically, you can only use a small portion of the work and from a numerical standpoint this varies. The rule of thumb is generally at around 10% of the original source is available for fair use, whether it is an audio file or video file.
  4. Will you harm the market for this product by using this material? Not surprisingly, copyright laws are in place to protect the personal “property” of the original creator. If the original creator is in a position to lose money from your use of the content, then chances are your use of the content will not fall under the fair use doctrine and you may be reprimanded.

Ultimately, like many legal regulations, the question of fair use comes down to a matter of intent. If you are using copyrighted content for school projects that won’t circulate beyond the classroom, then chances are you will fall well within the fair use doctrine. But knowing the information above is important if you intend to use copyrighted material for commercial or non-academic purposes—including if you share your academic work online for anyone to see.

Public Domain: Not All Content Is Created Equal

While fair use refers to ways that you can legally use copyrighted material, public domain describes content that is freely available to use in your country however you want. Jane Austen’s Pride and Prejudice is in the public domain, so you can do whatever you want with the text: add zombie scenes into the story, make a movie from the story and share it online, record yourself reading the entire novel and posting it online, copy and paste the entire novel into a blog post, or whatever else you can imagine. With a copyrighted book, you couldn’t do any of these things without the permission of the copyright owner.

In the United States, deciding what is public domain and what isn’t is sometimes tricky. The short version is that if something was published before 1923, it’s in the public domain; do whatever you like with it. If it was published after 1989, it won’t enter the public domain until 70 years after the author dies. If it’s in between 1923 and 1989, you’ll have to do some online searching to make a determination of the work’s copyright status.

But don’t miss this point: not everything on the Internet is in the public domain. Just because you can view the content on the Internet, which is provided for free in many places, it does not automatically give you the permission to disseminate the content for whatever reason. It is your own personal responsibility to ensure whether the content is copyrighted and it is up to you to figure out what the appropriate ways are to use the content.

But almost always, it makes more sense to take a careful approach. If you don’t know that you can legally use content, don’t use it—especially if you’re sharing it online beyond the closed doors of a classroom environment. Say that a photographer takes a beautiful picture and posts it on her blog. Even if the picture and the blog say absolutely nothing about copyright, you still don’t have the legal right to use that picture in your own work (unless your use can justifiably be described as fair use). Let me say that again: you can’t just grab something from Google Images and use it in your own blog. Most of those images are copyrighted—they’re not in the public domain.

Copyright, Copyleft

Copyright laws are a highly political issue. Without going into too much detail, it is important to realize that there are very liberal ways to think about copyright (oftentimes people will call it “copyleft”) and more conservative approaches. On the extreme ends, the liberal side would prefer a vast widening of what is in the public domain, making it much easier for remixers to legally use that content, and the conservative side would prefer a strengthening of copyright laws that protect the rights of content creators to strictly control what others do with their compositions.

A common way to resist the strict limitations of copyright laws is to find content (and license your own content) through Creative Commons. This not-for-profit organization basically provides a safe space on the Internet for composers to share their compositions with only some copyright rights reserved, instead of reserving all rights. For instance, I can very easily license anything I’ve created (a book, video, photo, sound file) with a Creative Commons license that tells others exactly what they can and can’t do with it. Maybe I want people to use it however they want as long as they don’t sell it. Maybe I want people to repost my work wherever they want as long as they don’t change anything about it. Creative Commons offers many flexible options.

And even better: you can search for the works of others that are licensed by Creative Commons, avoiding the legal problems of deciding if a use qualifies as fair or not. That is, if I’m looking for a photo of Washington D.C.’s Union Station, I have two basic choices:

  1. Search for an image (say, with Google Images or Flickr) with no restrictions on my search. This may lead me to a copyrighted picture that I then have to either A) use illegally or B) use and decide whether or not my use qualifies as fair.
  2. Search http://creativecommons.org/ (which includes Google Images, Flickr, and other sites) for images that the creators have already been labeled with the explicit ways that I’m allowed to use them through a Creative Commons license.

Option 2 is usually a no-brainer. Why not search for material that I can use without worrying about copyright law? The only time I would choose Option 1 is when I’ve found material that is definitely copyrighted but which is so perfect for my project that I want to find a way to use it fairly. (And in that situation, I still need to acknowledge the source. Remember, citation guidelines are the same regardless of the legal situation I’m in.)

Personal Responsibility: It’s Up to You

Unfortunately, pleading ignorance in copyright laws is not possible. You yourself are always responsible for knowing copyright laws and for acting both legally and ethically with the use of others’ content. This is no different than plagiarism in the university: whether or not you read the plagiarism section attached to the course syllabus does not change the fact that copying and pasting content from websites and including it word for word without any citation in your own paper is still considered plagiarism. At this point in your life, simply saying, “I didn’t know,” doesn’t cut it. If you are ever in doubt about the appropriate use of content, always as for permission. If you are confused as to whether or not your use of content falls under the fair use doctrine or is part of Creative Commons, always ask permission. Always.

To stay informed, keep in mind these valuable websites. They provide a wealth of information and scenarios about copyright law:

creative commons
thecopyrightsite.org
centerforsocialmedia.org
fairuse.stanford.edu

Putting It Into Practice: Copyright Concerns in Composition

The above list of websites is by no means exhaustive and is simply intended to give you a brief introduction into the wild and wacky world of copyright laws. This topic can be very confusing, so it might be easier to understand these laws, regulations, and requirements in the context of the projects and practices you will actually be engaging in during your academic life, particularly as it relates to writing classrooms. Let’s break it down into practice.

Blogging

Often, a part of your grade in writing courses is assigned to informal, public, or online writing. This may take the form of a blog or other social networking site.

Let’s say you are blogging and wish to embed an image from Google into your post. Your post is about photography and you want to include a really cool photo from one of your favorite photographers. What do you do? How do you attribute source to the image?

Let’s think about the citation/ethical issue first, before we get to the copyright issue. In blogs, as with most web spaces, the way to attribute the content is to make sure that when the reader of your blog post sees the image, they are then able to click on the image and be led to the website or source from which it came. (Quotations usually work the same way online: you provide a link to the space where you got it.) Often a photo caption can also do this work, giving the name of the photographer and the title of the photo so others can find it if they want.

That being said, even when you follow the ethical guideline of citations by providing a link, you’re not really fulfilling the legal requirements of the law if you don’t have permission to use the image. Just because you found the image somewhere online, you can’t legally post it to your own blog. Your options are 1) find the email address of the photographer and ask if you can repost it, 2) choose another picture, or 3) decide if your use is fair. And as we said above, option 3 can be pretty tricky. Your use is more likely to be fair if you’re writing critically about the photograph (as opposed to just using it as a nice decoration), if you crop out the parts you’re not discussing, and if you show a good faith effort to allow the photographer to keep making money from sales of the photo (say, by linking to a purchase page). But even then, you might be found in violation of the photographer’s copyright.

In short, when reposting images on public spaces (like blogs), it’s always safest to search for Creative Commons licensed content.

Remediation

One of the key concepts students of rhetoric and writing should be aware of is remediation; that is, you should be able to use and adapt content from other sources, reinterpret the material, and change the purpose and even audience of the content. Oftentimes, students will take audio and video clips from previous sources and “remix” them into new, original creations.
If you intend to use audio or video clips in any of your remediations, then what you need to pay attention to is the actual length of the clip being used. Generally, less than 30 seconds or 10% of the original content will allow you to fall under the fair use doctrine and protect your work—but even this is a guideline, not a rule, as all fair use guidelines are.
It’s also worth mentioning that parody or critique is far more likely to be seen as fair use than any other kind. So if you are making some kind of critique of an original that requires the use of the original in some way, you are on safer ground. Be sure to critique or parody the source using only the source itself and not content from other sources. It is less likely to be considered fair use if you’re using other content in addition to the content you are critiquing or parodying.

So here’s an example: Jonathan McIntosh (real person) was troubled by the gender roles he saw in the first Twilight film. He didn’t like the idea that the vampire Edward was stalking Bella and that this didn’t seem to be a problem. McIntosh wanted to remind people that behavior like Edward’s, in real life, would be seen as despicable and hurtful. So McIntosh planned a video remix that pitted Edward against Buffy from Buffy the Vampire Slayer. These characters never really met on screen, but McIntosh knew he could take clips from the movie and the shows that would make it look like they were talking to each other. And McIntosh knew that the character of Buffy would never put up with the troubling, stalker behavior shown by Edward. She would stand up as a strong woman and put a wooden stake through his vampire heart, just like he deserved. This is the video that followed:

Now, McIntosh probably knew he was dealing with tricky copyright ground here. Both Twilight and Buffy are copyrighted. But the message he wanted to send (that Buffy’s approach to gender is more positive than Twilight’s) required him to use clips from those particular sources. He could have searched from public domain vampire footage or looked for Creative Commons-licensed videos about vampires, but then he would lose his whole point about Edward, specifically, being a problem that Buffy, specifically, could solve.

To show that he had “good faith” about these copyright issues—that is, to prove that he knew about fair use law and honestly believed he was doing the right thing—he posted a page called “FAQs on Buffy vs. Edward” that included this point:

Actually I believe that “Buffy vs Edward” is a great example of employing my fair use rights, and that any appropriated copyrighted material constitutes a fair-use. Fair use is the right (under U.S. law) to quote copyrighted material without permission or payment, in some circumstances. If you are using the work for a different purpose than the original and using just as much as you need for your transformed purpose, then you have the right to use it without permission or payment. In this case, the original works are clearly transformed to make my commentary and criticism. No one, for instance, will mistake my video for the movie Twilight. You can learn more about your creative fair-use rights at the Center for Social Media, they have a great Code of Best Practices in Fair-Use for Online Video which will tell you everything you need to know.

And just in case someone wondered if McIntosh was just saying that but was really profiting from the remix, which would contribute to his video being seen as not fair use, he followed the above language with this:

A: Nope, I am making no money whatsoever off the video. There are no paid ads on my site, or on the video anywhere that I originally uploaded it. If you see an ad on or before “Buffy vs Edward” it is a re-post by someone other than me who is trying to make a quick buck off my work. I created this remix because I feel strongly about the issues raised (and obviously because I am a huge fan of Buffy The Vampire Slayer). As with most creative fan works I made it out of love. I believe there should be somethings in our culture that are not monetized. Also, I really hate ads on online videos – a lot!

Because McIntosh was in the realm of fair use, he was free to post his video on YouTube for anyone to see without fear of being sued.

Conclusion

Is copyright law difficult and complex? Yes. Is there an overwhelming amount of information to know about the topic? Yes. Does having a cursory knowledge of copyright law make you a more informed digital citizen and a more responsible and ethical user of online and even traditional content? Yes. Technology has enabled composers to draw from such a wide range of content, with the amount of textual documents, images, videos, and audio clips at their fingertips surely in the billions. But again, with great resources comes great responsibility. Knowing copyright law is one of those responsibilities.

Works Cited

Aristotle. On Rhetoric: A Theory of Civic Discourse. 2nd. ed. Trans. George A. Kennedy. New York: Oxford UP, 2007. Print.

* Questions adapted from thecopyrightsite.co. The Copyright Site. U of Alabama, n.d. Web. 7 June 2011.