Tuesday, April 22, 2008

A Lesson on Reflection: MORE Copyright Confusion...

One of the things I love most about my job is the opportunity to learn and reflect on new ways of doing things with a really AMAZING group of educators. One of the projects I have been working on is a research project on the animal kingdom with several of the biology classes in our school. The objective was to teach the kids to use research skills to become experts on a particular phylum or class and then to build a web page based on how this phylum or class fit into the animal kingdom. In addition they were to create a "guide" some questions that were of importance if someone were to learn about their particular class. In essence we were creating a virtual zoo that users could visit to see what they learned.

Within the project... students use library data bases and google docs to research, wikispaces to discuss and plan, noodletools to cite our information, flickr as a way to find images that we could use under Fair Use Guidelines. Wee discussed the ideas of transformativeness...and yet the morning after we posted the drafts to our podcast server for the students to check their work for accuracy, we received a few somewhat threatening emails from Flickr users regarding our "theft" of their content.

-----Email 1-----
It is not legal or moral to use what belongs to others.
At least when it is without permission. I realize that in making my photos public on the photo sharing site Flickr.com I've left myself open to pirates taking my photos and using them with out permission to do so but it is especially disheartening to find people within the realm of education so flagrantly disregarding copyright law and decency. Had you asked to use my photo for your project i would have gladly dug out the original and sent you a higher quality image for your site.
I cannot help but wonder if in addition to biology your school is also teaching children that theft morally justified. I will be searching your site for the use of other stolen images and notifying the Flickr users involved.

----Email 2-----

What does it teach your students to ignore copyright symbols and simply take what they want from the web?
I am referring to one of my images used without permission on: (note site page removed to protect identity of writer)
I have been asked to use my images by many others, I've always given permission to students and non-profit organizations. To use a copyrighted image without permission (credited or not) is stealing.

Now as you can tell by my last post, I am really questioning the ideas of copyright and fair use, so I crafted this response and sent it off to the users...

Thank you for contacting us. Copyright is designed not only to protect the rights of owners, but also to preserve the ability of users to promote creativity and innovation. As a school moving to a 1:1 laptop environment we are working hard to teach our students ethical use as content creators. One of the things that we stress STRONGLY with our students is the ideas of Fair Use and transformativeness... I have been involved with a study through Temple Media Lab http://www.mediaeducationlab.com/index.php?page=265 and have spent a lot of time discussing with teachers and students their role when creating transformative content using materials that belong to others as we design our project. You can read about how I have been struggling with these issues as well

Traditionally Educational use of media had to pass four tests to be appropriate and fair according to U.S. Code Title 17 107:

1. the purpose and character of the use, including whether the use is commercial or nonprofit
2. the nature of the use
3. the amount of the use
4. the effect of the use on the potential market for the copyrighted work.

However, what is fair, because it is transformative, is fair regardless of place of use or even purpose. Even in commercial use there have been instances where permission has been denied and works have been used in a transformative way. Peter Jaszi a copyright attorney and professor of Law at The American University, who is a partner in the Fair Use for Educators study, points to Bill Graham Archives vs.Dorling Kindersley (2006) http://fairuse.stanford.edu/primary_materials/cases/GrahamKindersley.pdf as an example of how courts liberally interpret fair use even with a commercial publisher. In summary, Dorling Kindersley wanted to include images of posters owned by the Bill Graham Archives in a book they were writing, Grateful Dead: The Illustrated Trip, a cultural history of the band. They sought permission to use the posters and although permission was refused, DK choose to use the images anyway. A suit was filed against DK for copyright infringement and the the case was thrown out, based on DK's claim of fair use. You see, the posters were originally created to promote concerts the new use of the art was designed to document events in historical and cultural context. The publisher added value in its use of the posters and such use was transformative.

We have worked through the project to have the students use images from Flickr and for the student to use advanced search to find images whose license under creative commons states that they are free to modify, adapt rework. http://creativecommons.org/licenses/by-nc/3.0/us/ If you are concerned about permissions, there is a way in flickr for you to set the protection on your images so that they are copyrighted and may no be downloaded with out permission. Images posted in this way do not provide a download link and if a user attempts to download them they receive a file that is called a spaceball.gif...the image will not copy and can not be downloaded. In addition one of the requirements of the project was for them to site these images by linking to the page in which the image was taken. In this way under fair use we were not only transforming the original work (changing the intended purpose) but crediting the user and linking to their other work (adding value).

If there was an image that a student really wanted to use, and it was copyrighted (not freely available under creative commons), we did ask the students contact the users. If you can refer us to the specific web page(s) that contained your images, I will be happy to check to make sure that they have correctly linked back to your work or have the student replace your photos with others, especially if you did not intend for your images to be available under creative commons.

Right now, we are in the revision phase (students are peer evaluating and making content changes etc) but I am out of the district and cannot make any changes to the site until I get back. Please let us know what pages / images are yours and how you would like us to proceed whether the students may use the images as linked or you would like us to find replacement images. I might suggest however, that you check how your work is licensed on the flickr site so you do not have a situation like this occur in the future.
I look forward to your reply.


I also sent it to my friends at Temple Media Lab and a summary of their response is below...

Wow! I am so impressed by your thoughtful and eloquent response to that Flickr user. I can certainly see why teachers would not want to use copyrighted materials after receiving angry emails like that. In my opinion, you are absolutely correct. While the extent to which the use of these pictures is transformative is debatable, I think you have a strong fair use argument and the links to the original sources on the pictures were a courtesy (although apparently not enough for this particular Flickr user).

She also shared a situation in which her boyfriend, a professional photographer took a photo of a local restaurant and put it on his website, where everything is marked with a Creative Commons “no commercial use”/ “attribution is necessary” license. The restaurant then took that photo for its commercial promotional materials without compensating him in any way. That is clearly unfair but it did give the kids an understanding about why photographers might feel that permissions are important.

So after the final drafts were turned in, the teacher posted a powerpoint slide with 3 questions....
  • During the virtual zoo project: How did we ensure that all necessary measures were taken to avoid using copyrighted information/ information?
  • How did ensure that the value of the pictures on our webpages was increased through our use?
  • Does anyone care?
We decided to capture their thoughts "live blog" style using cover it live so that we could continue to use this as a model and for point of discussion. Really I am glad that we got these emails, the lesson that we did initially on Fair Use and Transformativeness was not NEARLY as powerful as the students' reflections on the ideas we taught afterwards. I think what we REALLY learned was...

It is SO important when we look at anything we do, to consider the process and not just the product. Seeing the virtual zoo alone without the project requirements is not a reflection of what the students were given as a task NOR a reflection of the evaluation of the students' work.

Reflection is important. I think that had the students not had the opportunity to have to think about the idea of copyright and fair use from BOTH SIDES...content owner and content creator, they may

I am confident that as this group of students goes on to do other projects, they are going to think twice about the source and how they are going to transform the works they are using....and isn't that our goal, to produce students who have the ability to think about things at a higher level....

but don't just take my word for it...look at what the kids had to say

Even more refections & thoughts are here http://kushnerkorner.wikispaces.com/Zoo_Reflection

Would love to hear YOUR thoughts?

Blogged with the Flock Browser


  1. Hi Kristin -- this such an interesting issue and we were talking about copyright on Open PD this morning. I gave the example of John Connel's post where he was pulled up on using a photo from Flickr but not providing attribution. He has used the photo and made the photo link to the photo page of the photographer but hadn't written that "image was by .....".

    Now I'm not totally sure of how your students have used the photos but am wondering if they have done similar to John? Ideally we should always be including acknowledgment of the original source and what creative commons license they use. One of his readers has even created a Flickr Search engine that searches Creative commons and provides the HTML for attribution.

  2. Sue
    I will have to go back and check out that ustream event. It is such interesting territory we are in. Thanks for linking to that search engine. We used iweb to create the pages and now iWeb has that nice HTML widget. This might be a good option or since our kids use NoodleTools for citation for other parts of the project, it might be an option here as well. I think the bigger question is....do they have to ask permission or is using a linkback or citation enough? I know the answer legally just wondering what others think about it

  3. We are working on something like this with health care providers and health care in America. I always stumble when we go over copyright and use of multi media as it seems like a grey area. It is clear that the images are being used properly under the law. I just struggle with teaching our kids to do the right thing when people are not looking. Our school believe and enforces our ethics and moral policies. I think what you wrote was spot on and that if you post stuff to the web under a creative commons it is fair game. However, I still think there should be some level of moderation beyond the law that the kids should be taught. I like to teach our kids to take the high road and at least attempt to ask the owner to use the image, creative commons or not. Keep up the great work.

  4. Great point wilchek I think the lesson learned by the kids was just that...I have had a lot more questions by the kids since this happened. I think they really THINK they can just use whatever. The more they have personal experiences like this the more they will think twice about what they are using & posting

  5. Thank you for sharing this story. Does anyone know of any workshops on copyright and fair use for teachers.

  6. Anonymous11:04 PM

    I know this conversation is a little old now, but I just found this post through a Diigo conversation.

    I disagree with Wilcheck's point about asking even if it's Creative Commons. The whole point of Creative Commons is to make the process "frictionless," so you don't have to go through the work or requesting. While it might be feasible to ask permission for a few things here and there, it isn't realistic when you do a lot of work.

    The company I work for has less than 100 full time employees, but one employee does nothing but make and keep track of copyright requests. That's because it's so time-consuming and difficult to do so with works under traditional copyright.

    Wilcheck's point that anything posted under a CC license is fair game is right though (assuming it's the right license--no commercial use of NC-licensed works). I know that people don't always understand a CC license when they use it, but they really should.

    Kristin, you're right to be teaching your students both Creative Commons and fair use. Kudos to you for having these conversations with your students!