Fair Use and WashU: Part 2

What’s that slow, steady rumble you’ve been feeling on campus this week? Why it’s Fair Use!

February 26 – March 2 mark this year’s celebration, coordinated annually by ARL, of the legal doctrine “fair use.” We celebrate because of how central the provision is to the work done in libraries, on campus, and for the academic enterprise writ large.

At base, the law is about balance (cue scales of Lady Justice), which holds true for copyright (balancing public interest with that of authors), as it does for fair use (weighing four factors).

Libraries are “creatures of [this] historical and statutory balance.” (Henderson, 2006). And our mission (to collect, preserve, and disseminate information) follows from that of the university (education, research, and the expansion of knowledge), which tracks the purpose of copyright (“to promote the Progress of Science and useful Arts”).

Suffice it to say we’re sufficiently intertwined.

Resources abound on the doctrine, and how it’s applied.


(See this post, too, for links gathered by Ruth Lewis)

Here I want to share an example of something, but for fair use, we wouldn’t have been able to do.

This project involves a textbook written by art history scholars and intended for use in instruction:

American Encounters was originally published in 2008. The market for art history books waxes and wanes, alongside broader economic trends. The work was taken out-of-print, and the publisher assigned rights in the text back to its authors. Students still want to study art and cultural heritage, though, and educators still want to teach them. But as the permissions savvy know, it’s easy to find yourself “awash in byzantine legal terms, constantly evolving copyright law, varying interpretations by museums and estates, and despair over the complexity of the whole situation.” (Bielstein, 2006). And to study works of art, you must in most cases be able to see them.

So we consider fair use. It isn’t a catch-all, and it certainly isn’t carte blanche (“educational use” alone justifies nothing). But it can serve as the basis to include individual third-party works in reasonable manner without formal consent.

American Encounters contains approximately 240 images portraying material created and published after 1923. Context is key, and each work must be examined one-by-one, in light of the four factors and statutory framework set forth by Section 107. This isn’t for the library to decide; it’s the authors’ job—and indeed they’re best positioned—to evaluate each use. Full-page reproductions and works used as cover pieces, frontispieces or other pages with little text should be removed. The size and quality of the images should be sufficient to accomplish the purpose, and not more.

Full explication of the assertions is beyond the scope of this post. It’s certainly important to put your reasoning to paper, and to document all decisions ex ante. Here the AAMD Guidelines for the Use of Copyrighted Materials and Works of Art by Art Museums, the Code of Best Practices in Fair Use for the Visual Arts, and Fair Use for Nonfiction Authors were invaluable guides. These documents reflect the very real way in which individuals throughout the educational ecosystem are tasked with and empowered by making fair use decisions every day.

If you have questions about copyright, and for related resources, visit Digital Library Program Services Copyright Help page here.

Jonathan Rissmeyer, Senior Artist, UCSB Library Copyright Advisory Committee


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