Fair Use & Art History

11 Tracking Transformative Use in Your Writing About Art

Bridget Madden

Intended Audience: PhD students who are working on their dissertations or publishing articles or other scholarly writing

Session Length: 45 minutes to 1 hour, although this can be adjusted depending on the number of student examples you take during the session

Code Section: Analytic Writing

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

Abstract

The goal of this lesson plan is to provide graduate students with information about copyright and fair use of images they plan to use in dissertations or journal articles. Students should come prepared with examples of images they’re working on or submit to the instructor in advance. The first part of the session defines copyright term lengths, public domain, and other related topics including open image collections and copyfraud. The instructor demonstrates how to determine copyright status with examples of the students’ images and invites student participation and discussion in this demonstration. The second part defines fair use and presents section “One: Analytic Writing” of the Code to students for review. The instructor demonstrates fair use analysis and invites students to offer their rationale for or against fair use on the examples of images under copyright from the first section. The instructor then introduces a spreadsheet tool that can be used to keep track of the images they plan to publish, document their fair use rationale, and hopefully help ease the transition from dissertation to published book. This lesson plan is good for PhD students at any stage of their dissertation writing or for students planning to publish journal articles. The lesson can also be used to highlight visual resource services and/or other local library services from which students may benefit. Be sure to send the students the slide deck with links to tools and resources after the session is over.

Learning Objectives

  • Students will understand the basics of copyright and be able to determine the copyright status of a particular image.
  • Students will become familiar with the Code and will be able to define fair use and analyze whether their intended use of an image is considered fair.
  • Students will be able to adapt a spreadsheet tool to keep track of image copyright status and their fair use rationale.

Materials

The lesson plan requires a slide deck with relevant copyright tools listed (including Peter Hirtle’s Chart Detailing Copyright Term in the US; Lolly Gasaway’s Chart When U.S. Works Pass into the Public Domain, and the Digital Slider) and Google Sheets spreadsheet tool to demonstrate and share with students. You may use this publicly available, sharable spreadsheet “Tracking Images and Fair Use” in your session or adapt it to make your own version. Likewise, the author’s slide deck is publicly available via Google Slides and you are welcome to use or adapt it as you see fit (for static versions of the spreadsheet and presentation see appendix 9).

The lesson also relies on examples of images that students are planning to use in their project. Depending on your audience, either solicit examples from students via a Google Form in advance of the session or ask students to come prepared with an example to share with the group. Here is an example of a Google Form that can be used or adapted if you choose to collect examples in advance of the session.

Lesson Plan

Introduction and overview of session (5 minutes)

  • Ask the students to introduce themselves and briefly describe their writing project

Basics of copyright (5 minutes)

  • I start by demonstrating how to determine if something is in the public domain or if its status is copyright protected. Since the concept of fair use does not apply to images that are in the public domain or otherwise available for use through a license, it is important to determine the copyright status of a particular image.
  • Define issues of copyfraud and museums claiming restrictions on images that are otherwise in the public domain. Describe open image collections and Creative Commons as well as educational licensing programs such as the Artstor Images for Academic Publishing (IAP) program.
    • Emphasize that if images are in the public domain an image file can be obtained either from a museum (may need to ask permission) or they can scan from a high-quality publication source. A local visual resources center or creative lab should be able to help students by scanning the images they need.
    • Mention to students that they may want to formally request permission even when fair use applies to preserve their relationship with an artist, foundation, or repository. Resources for requesting permission are at the end of the slide deck.

Student examples of copyright analysis (10 minutes)

  • Either ask a few students to volunteer an example of an image they are planning to publish in an article or use in their dissertation or select from examples that students submitted before the session. As a group, go over the examples and determine whether something is protected under copyright, demonstrating whatever tools seem most useful for the specific example at hand, for example the Digital Slider.
    • You may not need all the tools in the slide deck, but the idea is to have them available if you do. If you send students the slide deck or post the tools on your website students will be aware of them and can pursue them on their own in the future. Contribute any additional tools you think would be useful for your users.
  • Note which images are protected under copyright law to refer to them later in the session

Overview of fair use and discussion of the Code (5 minutes)

  • Define fair use; briefly go over the four factors.
  • Present section “One: Analytic Writing” A to the group and highlight what the Code covers and what its limitations are.
    • Emphasize how the Code simplifies the four factors and looks at whether or not the use is transformative within a set of best practices.
    • Encourage students to use images that are sized appropriately for their specific use because image size requirements differ for dissertations and publications like journals and books. For the ProQuest PDF dissertation, 72 dpi and 1500 pixels on the long edge should suffice. Most publishers request 300 dpi for printing journals and books. (This information appears at the end of the slide deck if students want to refer to it.)

Student examples of fair use (10 minutes)

  • Of the examples the students volunteered earlier, take a couple of the images that were protected by copyright and do a fair use analysis as a group. Allow students to suggest reasons for and against fair use for each example based on what they’ve read in the Code.
    • Guiding questions could include: Ask the students to explain more about how they will use the image. Will it be published in a journal or will it go in your dissertation? How does the image relate to your argument? Use the concepts from Section One of the Code to aid in the fair use analysis. How do the limitations presented in the Code relate to your use?

Introduce a tool for documenting fair use decisions (5 minutes)

  • Discuss rationale for documenting fair use decisions
    • A limitation from Section One of the Code says that a writer employing fair use “should be justified by the analytic objective, and the user should be prepared to articulate that justification.”
    • Substitute your local campus dissertation policy: Our local campus Dissertation Office permits students to include images in their dissertation under fair use and encourages students to keep track of their fair use reasoning.
  • I devised a simple tool in Google Sheets to give students an idea of how they might keep track of their fair use reasoning along with some other logistical information about the images they need for their project, whether it is a dissertation, an article, or another publishing project. This helps meet the fair use guidelines of the Code and provides students with a tool to keep track of their images which may prove helpful for future publishing projects—sometimes years go by before a dissertation gets turned into a book.
    • For my fake dissertation project here, I’ve included examples of a public domain image, a copyrighted image I’m claiming fair use to use, an image that I’ve decided to request permission for out of courtesy to colleagues at a foundation. You can substitute any examples that are useful for your audience.
    • I have grayed out fields that do not need to be filled in. For example, fair use does not apply when images are in the public domain or if students have obtained them through a Creative Commons or other license, such as Artstor IAP.

Other Tips for Using Images (5 minutes)

  • Briefly provide other tips for fair use of images, including size, resolution, and accuracy, which are other limitations in Section One of the Code.
    • A possible resource to include: If the software is available for student use, Adobe Photoshop Lightroom is helpful for batch resizing of images.
  • Include a slide with resources for requesting permission in case a student opts to obtain permission rather than rely on fair use.

Conclusion

  • Ask for any remaining student questions or reflections.

Reflection Essay

This lesson and the spreadsheet tool grew out of copyright consultations with individuals and other informal presentations given to smaller groups of graduate students in the art history department. It was codified into a larger group presentation for advanced history PhD graduate students in February 2016. Whether I use the structure of the lesson with a group or an individual, the experience is always different because it depends on the images that students are using in their own work. There is a risk that students won’t want to share examples of images they’re using in a group setting, but I have not encountered that problem when presenting to groups of PhD students—they have been eager to offer their examples for the group to consider and their active participation makes the experience more meaningful.

Using examples from students rather than preparing examples in advance could be considered another risk because you might not know the answer right away. However, populating your slide deck with a variety of copyright and fair use tools and resources will allow you to talk through any question together. The slide deck can then be sent to attendees after the lesson and students appreciate having the complete set of resources for future use. Similarly, giving students access to the spreadsheet tool can serve as an example for what they might want to do for their own project. I make sure to emphasize that they only need to take the parts that are useful to them and their workflow. Nothing is mandatory or required, it’s just an idea to help articulate fair use rationale per the Code’s advice. It also serves the purpose of keeping track of other administrative information and files that other students and faculty have told me are problematic if they’re not planning to publish their writing for a few years.

At the end of the session, I make sure to provide tips and other information about using images fairly since the Code includes limitations about the size, resolution, and accuracy of images. This is a great opportunity to plug local visual resources services that are available to students, such as the creation of high-quality digital images that would be accurate, sized appropriately, and cataloged with the correct citation information. I also include some resources for requesting permission if a student decides that is required for their project.

License

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

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