Copyright? More like copyWRONG, amirite?

My copyright-infringing masterpiece

Not so fast, E.T.

I designed a BEAUTIFUL etext for my junior and senior film classes via iBooks Author. It opened with a snippet from Raging Bull’s fight montage. The cover featured E.T. and Eliot flying past the full moon, an iconic image from one of America’s most beloved films. A slideshow of stills from Rosemary’s Baby walked students through different shooting angles, just a few clicks away from Citizen Kane and mise-en-scene, my favorite section of the piece. It was a text filled with sight and sound, the type of book students in my day couldn’t have ever imagined would exist. Immersive, interactive, filled with quizzes and clickable images…I really felt like I had accomplished something. I showed it to a few people over the summer and the response was uniformly positive. It was, I decided, the beginning of a brave new era.

I was painfully incorrect in that assessment. If anything, recent developments like the DMCA and TEACH Act have hamstrung educators in entirely new and awful ways, and we should be fighting back.

I’ve always lobbied under the delusion that my teaching materials were protected under the fair use provision of United States copyright law. And they were, more or less, until the horrendous TEACH Act was put into place in 2002 to strip mine not only our classroom materials, but out ability to grow and change with the times. Think you can make a handout with the Mona Lisa on it? Not according to the TEACH Act, which allows teachers to use material only as a part of mediated classroom activities, meaning you’re either in the room or, in a distance learning environment, on the digital stage lecturing. Want to include a still image of Douglas Fairbanks in your ebook? No you don’t, at least not if you want to stay out of copyright hell. At least you can show clips from his films, right? Well, kind of, but not really. You can show “reasonable and limited” portions of his work. What does that even mean? NO ONE KNOWS.

You can use photocopies of an interesting op-Ed in the New York Times, but only if it’s spontaneous. So if you plan your lessons out more than two hours in advance, you’re out of luck. Better start writing your own op-eds. The TEACH Act goes so far as to restrict converting material from analog to digital. So if you’ve ever scanned a document for class distribution, watch out: the Federales may be at your door. My favorite provision is the one that tells schools how far they need to go to protect major corporations’ rights:
“The institution must implement some technological measures to ensure compliance with these policies, beyond merely assigning a password. Ensuring compliance through technological means may include user and location authentication through Internet Protocol (IP) checking, content timeouts, print-disabling, cut and paste disabling, etc.”

Got all that? You MIGHT be able to use a grainy still picture from the set of The Cabinet of Dr. Caligari, provided you hire James Bond and Q to run your network security.

You might think this isn’t relevant for you, since many teachers are not creating digital resources quite yet, but I strenuously disagree. Yes, much of the TEACH Act is geared towards distance learning, but for those of us attempting to flip classrooms and create compelling digital resources for kids, it cuts us off at the knees. The TEACH Act expressly forbids making digital course packs, reserve materials, etc., that use copyrighted material. Which leaves you praying fair use will protect you, which is probably won’t, given the utterly subjective nature of the four fair use criteria. One of the criteria is how your work affects the market for the work you’re “borrowing” from. Well, I have absolutely no idea if my twenty second Raging Bull clip will bankrupt United Artists, but an argument could be made that my textbook’s use of the clip makes subsequent licensing less valuable, especially if they are selling licenses to massive textbook producers like Pearson or Houghton Mifflin.

So how do I find out? I get sued! That’s the only way to find out if your operating within the strictures of fair use. And, lest you think I’m just a lazy teacher looking to steal material, I contacted two of the pre-eminent minds in education law and neither could tell me how far fair use would extend. I also contacted a number of major studios. Of course they all tripped over themselves to assist an educator and expose their best work to a new generation.

I’m kidding, they either said no outright or asked for thousands of dollars. Except for one man…Charlie Chaplin(‘s estate). One of my favorite actors of all time(‘s estate) is allowing me to use two pictures of my choosing, and I genuinely appreciate it. I also think it’s an excellent way to give a new generation of students access to material they otherwise might never see. Why don’t the major studios agree?

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3 thoughts on “Copyright? More like copyWRONG, amirite?

  1. Patrick: What did you end up deciding to do, just not utilize the course text? I agree there are not ‘bright lines’ for fair use, but we definitely DO have a lot of rights under fair use provisions of US copyright law, especially as we create non-commercial, transformative works using small excerpts of original media materials which do not diminish the marketability/monetization of those original works. The copyright chapter of my book, “Playing with Media: simple ideas for powerful sharing” addresses some of these issues and might be helpful to you:
    http://playingwithmedia.com/pages/copyright

    I have asked Renee Hobbs, who founded the Media Education Lab that is really into helping teachers with copyright and fair use issues, to reply to this post and chime in too.
    http://mediaeducationlab.com/about-us

    Don’t give up! While there is not a lawyer out there who can guarantee you won’t get a cease and desist or takedown request from a copyright holder if you choose to use your course materials, there definitely ARE great resources and people you can draw on when it comes to exercising your fair use rights. I’m not a lawyer but I definitely have studied these issues a lot and continue to. I’d love to see a copy of your eBook if you want to DM me a dropbox link to it. I’d be glad to share my opinion on the copyright aspect of you using the work, if that would be helpful.

  2. Sorry to hear that you are suffering from copyright confusion, and the only solution to that is Copyright Clarity. There are so many errors and misstatements in this post, but that’s because you have not had the opportunity to gain a solid understanding of how educators claim fair use and what your rights and responsibilities under the law. Read the Code of Best Practices in Fair Use for Media Literacy at http://mediaeducationlab.com/copyright

    • Renee, I would urge you to consult with the legal minds that help make these determinations, the majority of whom believe fair use is not enough to protect educators from takedown notices at best and prosecution at worst. Dr. Charles Russo wrote the book widely considered the preeminent text on education law (The Encyclopedia of Education Law). He does not share your opinion, though I wish more lawyers and judges did.

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