Fair Use & Art History

12 Intellectual Property for Visual Resources: A Student Centered Case Study Approach

Meredith Wisner

Intended Audience: Upper-division undergraduates in art history, ideally in courses that require students to publish their work on the web

Session Length: 1-1.5 hours, with a short assignment that precedes the session

Code Section: Analytic writing

ACRL Frames: Authority is constructed and contextual, Information has value, Scholarship as conversation

Abstract

This lesson plan teaches students the fundamentals of copyright, fair use, and permissions using a case study as a platform to discuss how to find rights information for reproductions of works of art, and the variety of challenges they might encounter. The lesson works best for art history students working on a digital humanities project that includes publishing to the web, although it could also be adapted for students publishing in other formats. The focus of this lesson concerns reproductions of two- and three-dimensional works of art or craft, but it could also be expanded to cover reproductions of archival material or the host of copyright issues surrounding born-digital works.

Learning Objectives:

  • Students will come to identify their projects as a form of scholarly publishing in order to recognize themselves as entering a public scholarly conversation
  • Students will evaluate sources of visual information for their authority and reliability in order to find accurate rights information and high quality reproductions for their projects in compliance with CAA guidelines
  • Students will think critically about the principles of fair use in order to apply those principles when assessing their own use of copyrighted materials
  • Students will learn the elements of a formal permissions letter in order to confidently ask permission for copyrighted materials they wish to use outside of fair use
  • Students will learn to consider implicit bias in copyright law, institutional copyfraud and the ways in which they can agitate against these systems

Materials

  • Instructional videos on copyright, fair use, visual resources, and citations basics for text and visual resources
  • Slide presentation (see appendix 10)
  • Library guide
  • Handout: quick guide to copyright and fair use

Lesson Plan

Preparation

This lesson plan requires that students come to the session with a basic understanding of copyright, fair use, and how these concepts operate when working with visual resources, primarily those sourced from cultural institutions. The session takes a flipped-classroom approach by using a pre-assignment that covers these concepts. Ideally this allows for a higher level of discussion on the practical aspects of applying fair use and gaining permission for copyrighted work.

Because this session is heavily reliant on a sample case study that uses a series of interrelated reproductions, it is important to choose images that illustrate a wide variety of issues that students might encounter as they make selections for their own projects. As an example, one might choose sample images for a case study by using reproductions found in collections within and outside the United States through simple browser searches, in Wikimedia Commons, or at institutions who have taken an open approach to their public domain collections. Although this session relies on live searching and discussion, slides are used to reinforce ideas, increase accessibility for visual learners, and to provide a back-up should a technical problem arise.

Pre-assignment

Prior to class, select videos for students to watch that cover copyright, fair use, using visual resources, and citing sources (including image captioning). Provide questions for students to encourage active viewing. The questions work best when salient to the particulars of the session, and should be woven into the discussion during the session itself. Examples might be:

  • Can we use a work of art that is still under copyright as long as we cite it?
  • How does the fair use clause work?
  • What do museum databases offer that Google Image Search does not?

Copyright and Fair Use (15 minutes)

Welcome students, and state the objectives for the session. Ask them questions about where they are in the process of image gathering for the course. Introduce yourself and your personal and professional experiences with copyright.

Ask students the ways in which they encounter copyright law in their own scholarship. Draw parallels between their work and that of professionals in their field. Discuss the ways traditional modes of scholarly publishing marginalizes younger voices, voices of women, queer folks, folks of color and other marginalized communities.1

Discuss citations as a patriarchal construct, but one required in order to engage in traditional forms of scholarship. Acknowledge its place in tamping down the perspectives of marginalized communities, but note its value as a way to visualize a scholarly conversation and offer attribution.2

Discuss the limitations of copyright protection, its variability around the world, and that the U.S. fair use doctrine applies only to scholarship in United States. Discuss how the fair use doctrine works and how it functions to help scholars determine if and how they can use copyrighted materials legally.3 Ask students if providing attribution for copyrighted works protects them from violating copyright: discuss further if necessary.

Publishing and Web Publishing (10 minutes)

Introduce the web as a site of varying behaviors when it comes to copyright. Explain that we might share an image on social media without attribution, but then also write a Wikipedia article using the same image and provide a full citation. Information conveyed in different contexts is shared and appreciated differently.

Ask students to define their projects’ target audience. Using ideas from the previous discussion, ask what the expectations might be for their work. Point them to the library guide as a resource they can consult as their projects move forward, and offer one-on-one guidance should they need it. Cite the library as a source for information on intellectual property.

Discuss Code of Best Practices in Fair Use for the Visual Arts as a source for guidance about how to be a good actor when navigating copyright as a scholar in the arts. Discuss its creation, and how it considers, specifically, the needs of scholars writing about art.4

Case Study: Putting Principle into Practice (15 Minutes)

Using a reproduction of a work of art, ask students where they would go to find images to support their work. Demo a Google Image search for your selected image as an example of a common technique for finding visual images. Show students the array of images in any Google Image search, and ask them to consider challenges in meeting the requirements of the Code. For example, how do we locate reliable citation information within the array of websites represented in this search? How do we determine which images are accurate representations when confronted with so many versions? What is meant by “high quality” and how can we determine this using Google Image searching? Demonstrate tools like sorting by size, and the Usage Rights tool and discuss the reliability of that information.

Navigate to the institution that owns the artwork in the image you selected and lead a discussion about the pros and cons of using an institution’s collections database over sites like Google Image search. Show students how to find rights information for the image. If the image comes from a collection in a foreign country, use this as an opportunity to reinforce fair use as a US doctrine, and that it does not necessarily cover works from other countries. Discuss the Berne Convention. If the image is of an artwork that has entered the public domain, discuss how copyright operates for the work as opposed to its reproduction.

If the image is also reproduced in Wikimedia Commons, pull up the rights information provided in the Commons. Discuss Wikipedia as an open, collaborative platform, including its benefits and drawbacks. Discuss the Bridgeman Art Library, Ltd. v. Corel Corp. case and how in the US reproductions of two-dimensional works of art are not protected by copyright, while three-dimensional images are.5 Images in Wikimedia Commons use this case law to support their own fair use claims. Use this as an opportunity to discuss using images found via Wikimedia Commons. Ask them to consider what factors might inform this decision. If you’ve used an image from Wikimedia in your presentation point that out and discuss risks involved.

Discuss the proliferation of “no photography” signs in museums, and efforts by cultural institutions to control the access to reproductions of objects in their collections.6 Cover the museum/scholar relationship as a reason this kind of “copyfraud” is perpetuated.7

Navigate to an institution that participates in the openGLAM movement. Demonstrate how their collection databases differ from institutions that lock down their public domain images. Note how they provide clear rights information and contrast this with the confusing legal jargon used on other sites. Also show how these same institutions treat objects that are still protected by copyright.

Permissions (10 Minutes)

Discuss with student when it is necessary to ask permission to use copyrighted material, and strategies for locating a copyright holder’s identity. Describe the elements that go into writing a successful permissions letter. These including describing who you are and why you are making a request to use the copyright holder’s work, how much of the work you intend to use, how you intend to use it, and the extent of the use itself. Note that extent means both the duration of the use (for a limited time up to perpetual use), as well as the extent of the audience reached.8 Discuss with the class how fair use might be weighed differently in different contexts (classroom, scholarly publishing, and commercial publishing).

Intellectual Property Laws and Inequality (10 Minutes)

Conclude with an introduction to the inequities of copyright law across disciplines, and how intellectual property laws often fail to protect the creative output of women and minorities. For example, dressmaking as a discipline has been historically made up of women (and women of color). The fashion industry, as late as 2015, has endured weak copyright protections stemming from the view that dressmaking is more craft than art. Improvisational forms of music like jazz, while innovated by African Americans, was and is appropriated by white musicians who then “fix” the work in recorded medium thereby appropriating the work (recording being cost prohibitive step for many).9

Address how copyright protections in the US have expanded to protect corporations at the expense of individual creative and intellectual expression. Identify CAA’s Code of Best Practices in Fair Use for the Visual Arts and the assertion of fair use as a means to navigate power imbalances and challenge structures of inequity within the arts.

If students were asked to sign a waiver for their course that releases their copyright to the college or university, ask them how they feel about this. Draw comparisons to scholars signing similar waivers when publishing through traditional channels, and encourage them to challenge those requirements where possible.

Introduce students to Creative Commons as a means to fine-tune the control they have over their creative work, while allowing others to more freely engage with their ideas.

Reflection

This session arose out of a need to support the intellectual property requirements for grant-funded digital scholarship courses at Barnard College. The Library, in partnership with its Instructional Media and Technology department (IMATS), saw this need as an opportunity to create instruction sessions on intellectual property that were tailored to specific courses, and also prepare students to navigate intellectual property (IP) in their future careers. This session was given as part of a series of labs offering students practical skills for developing digital humanities projects. Along with this lab I also taught a workshop on the collaborative use of Zotero citation management software.

Recognizing the impossibility of covering the entirety of intellectual property law in a single one-hour session, my approach for this course was to develop a case study that would take students through the process of finding images that suited the goals of their projects. The session is designed to center the students’ experience through facilitated discussion that circles the conversation back to their own varying levels of knowledge. This feminist approach to instruction is informed by the work and writing of Maria T. Accardi and her book Feminist Pedagogy for Library Instruction.10

Given additional time, a more effective way to empower students would be to introduce a follow-up workshop that offers opportunities for students to share their fair use and permissions questions with peers, and to collaboratively discuss solutions to those challenges in a facilitated environment. In future iterations of this class I would also point to the obvious inequity on display within each of my examples, noting the subjects shown as being members of a certain ethnicity and/or class (as two examples), and the events depicted as marked by symbols of privilege. We might interrogate as a class how bias is transmitted through these works, and how the intended audience of the works could impact meaning.

I also aimed to reframe the discussion around citation away from crime and punishment and toward the activity as a means to convey one’s place in a given scholarly conversation through collegial attribution. Kevin Seeber’s “The Failed Pedagogy of Punishment” helped clarify my thinking here.11

Finally, throughout the development of this session I became increasingly interested in the inequities inherent to copyright law. Copyright, as having arisen from the same patriarchal social structure that created the constructs of race and gender, is an important lens through which to interrogate IP, and one I hope to more thoroughly cover in future iterations of this session. I think this topic, while important for all students working with issues related to IP, is particularly critical for students researching connoisseurship, the development of guilds, the so-called “lesser arts,” and the artistic work of women artists, people of color, and other marginalized communities.

References

  1. Maria T. Accardi, Feminist Pedagogy for Library Instruction (Sacramento, CA: Library Juice Press, 2016), 24 – 25
  2. Accardi, 10, 24 – 25.
  3. Susan Bielstein, “What is Copyright?” and “Fair Use,” in Permissions, A Survival Guide: Blunt Talk about Intellectual Property (Chicago: University of Chicago Press, 2006), 12-34; 79-100. (Summer 2012), 806 – 816; April Hathcock, “Copyright,” New York University Libraries, last modified March 27, 2018. https://guides.nyu.edu/c.php?g=276785&p=1845968.
  4. College Art Association, Code of Best Practices in Fair Use for the Visual Arts. (2015), 1 – 19.
  5. Bielstein, 42 – 43.
  6. Kenneth D. Crews, “Museum Policies and Art Images: Conflicting Objectives and Copyright Overreaching,” Fordham Intellectual Property Media and Entertainment Law Journal 22, no. 4 (Summer 2012): 806 – 816.
  7. Jason Mazzone, “Copyfraud,” New York University Law Review 81, no. 3 (2006): 1026.
  8. Kenneth D. Crews, “Asking for Permission,”Columbia University Libraries, Copyright Advisory Office, retrieved on April 20, 2018. https://copyright.columbia.edu/basics/permissions-and-licensing.html.
  9. Kevin J. Greene, “Intellectual Property at the Intersection of Race and Gender: Lady Sings the Blues,” American University Journal of Gender, Social Policy & the Law 16 no. 3 (2008): 370-374.
  10. Accardi, 23 – 69.
  11. Kevin P Seeber, “The Failed Pedagogy of Punishment: Moving Discussions of Plagiarism beyond Detection and Discipline,” Critical Library Pedagogy Handbook, Volume 1, eds. Kelly McElroy & Nicole Pagowsky (Chicago: Association of College and Research Libraries, 2016), 131 – 138.

License

Fair Use in the Visual Arts: Lesson Plans for Librarians Copyright © 2018 by Meredith Wisner. All Rights Reserved.

Share This Book