Question: Copyright issues for media use

[Suzanne Lustie]

I teach classes for the University of Phoenix. They are very clear that
we can only use video from YouTube because of copy right permission
issues.

Some of these other films and media sources mentioned on Making Curriculum Pop look awesome but as far as I
know when I teach at a for profit school or university I can't use
anything but YouTube without paying big copyright money--is this
correct? Perhaps someone has more information for me.

Thanks
Suzanne

P.S.  I just heard from Patrina that an attorney she contacted said even YouTube might have material that is in violation.  I was under the impression that YouTube screened for violations. 

[John Golden]

My go-to on everything copyright is Renee Hobbs from Temple U. She has a new book called "Copyright Clarity." If you go to the book's site -- http://www.mediaeducationlab.com/copyright -- you'll see tons of resources to help clarify fair use claims, especially in the realm of media literacy education. She has some practical case studies that might be relevant to folks' situations.

[Suzanne Lustie]

Thank you John, I just checked out the site and watched the video. I've been working with lots of misinformation it seems. When the budget permits I'll buy Renee's book so I can continue the clarifying process.
Suzanne

[Ryan Goble]

Also dig Renee's new book Copyright Clarity: How Fair Use Supports Digital Learning

[Alan Teasley]

Copied from an earlier post to another manifestation of this issue, per Ryan. Second response to follow.

Comment by Alan Teasley 10 hours ago
Delete Comment Most of what has been shared in response to this issue strikes me as wrong. Please consult the attached document "Code of Fair Use in Media Education," a 20-page document (distributed freely--see note at end!) from Renee Hobbs' Media Education Lab.Code of Fair Use in Media Education.pdf

[Alan Teasley]

Second re-post, initially in response to Patrina, to keep the clarification ongoing. Thanks to John G and NingMeister Ryan for posting links to Renee's new book.

+++++++++

Patrina:

Notice that I hedged my comment with "strikes me" because I wasn't completely clear about the circumstances under which you were screening the entire film.

Prior to the Media Lab's work published in the "Code of Fair Use" document, I had used the criteria that the film (or other copyrighted work) had to be (1) legally obtained (e.g., original DVD purchased or rented, not taped from television--whole other set of criteria); (2) used for educational purposed (goal/objectives tied to legitimate course outcomes (developing critical viewing skills, not entertainment); (3) with a teacher present; (4) in a setting normally used for instruction.

Under these criteria, I could use "Whale Rider" as part of a unit in a tenth grade World Literature classroom, but not screen "The Lion King" in the school auditorium as a reward for perfect attendance. For that "entertainment" or "reward" purpose (not instructional), I would need to pay a licensing fee.

My own understanding of the issues are evolving, but the main points of Renee's work seem to me to be (1) the advice to teachers has mainly come from the copyright owners and has been fear-inducing; (2) teachers' "fair use" exemptions may be broader than previously thought; and (3) teachers have different restrictions than students do.

I agree with other commenters that "YouTube" and other such sources cloud the issue because it's harder for teachers to know whether the material has been placed there legitimately.

Another issue for high school teachers is the problem of MPAA ratings for films. Many schools ban outright the use of any R-rated films. Does that mean I can't show a clip from such a film that has none of the sex, violence or language that got the film as a whole the R? These concerns have less to do with copyright and more to do with state laws regarding pornography or school district policies on selection of instructional materials.

Thanks for opening up the dialogue.

Alan

[Patrina]

From an earlier comment posted below:

Suzanne,

In a brief consult with a lawyer on a film in education nonprofit I'm working up, he noted that screening anything that takes away from the royalties or sales of the artist's original work is a copyright violation. I'd be a bit cautious with Youtube as some of the clips are pirated versions of copyrighted materials. This pretty much limits class viewings of copyrighted films to brief illustrative clips. I've been in classes where film viewings were assigned as homework--students could then seek them out on Netflix or the local library.

--Patrina

[Patrina]

A comment previously posted below:

Alan,

Which part of the response did you think was "wrong"? As noted before, I consulted a lawyer about the legality of screening entire films as a part of a non profit screening and discussion group and the response was that films can not be shown in their entirety without permission of the artist. He recommended and (I've seen in classes prior) showing brief clips in class and assigning entire films for outside of class. The Code of Fair Use you posted actually does not differ from this. The key points being:

"-Did the unlicensed use “transform” the material taken from the copyrighted work by using it for a different purpose than that of the original, or did it just repeat the work for the same intent and value as the original?
- Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?

If the answers to these two questions are “yes,” a court is likely to find a use fair. Because that is true, such a use is unlikely to be challenged in the first place."

--Patrina

[Peter Gutierrez]

Patrina & Alan, You both raise good points as far as I can see. I actually participated in the Code of Best Practices survey a few years ago, so I like to think I know something about this, especially as I've been a media lit and film teacher who has needed to screen stuff on occasion ... but now I'm realizing that I'm a bit rusty on some of these issues.

That said, they're not that tricky in principle -- it's just that all of us use language that tends to make things like this hard to talk about b/c we're often not precise enough. And the thing about lawyers is that often they're trained in copyright... without being trained in Fair Use; plus, many are apt to err on the side of being way conservative... so many issues that we just want to get simplified become oversimplified instead. And to be fair to lawyers: even when we may rightly say a "court is likely to find fair use" (above), lawyers often see their jobs as keeping us from going before a court in the first place, not having a sound argument when we do.

The problem is that it's a slippery slope, so that for-profits, non-profits, schools, doc filmmakers, librarians get cautioned away from certain practices, then make up their own pseudo-rules that become the new boundaries... and then we get even more cautious because these rules get repeated now as "law" and so fair use gets more and more eroded and diluted... which is what Renee was motivated by: the atmosphere of outright fear that had crept into certain academic circles.

Fair Use, to my understanding, is a broad right that puts the good of society ahead of copyright owners under certain conditions. Everything else flows from that general principle -- the issue of profit, duration/amount of material used, whether its transformational in intent, etc. These are all different metrics used in the service of that broad (and powerful) idea -- to make it workable and practical.

Like the original poster, I have a problem w/ some (actually quite little, probably) of the content on MCPOP b/c I feel some of it does violate copyright: when a book publisher or media publisher, whether trade or K-12/high ed, does market its products to ed audiences and we simply post a free version of it, we're violating copyright -- Fair Use is not an issue. That is, when National Geographic or PBS produces a "nature" doc (ie a video) or Disney produces a DVD on "counting with Mickey Mouse" but then we encourage educators to use sites where this content is free (but not provided by the rights holders), well, there's no excuse for this. We're not transforming anything, we're just acting like standing in front of students gives us a license to steal.

On the other hand, when I screen Dark Victory -- in its entirety, not in illustrative clips -- for a class on gender roles in Golden Age Hollywood film, that's completely Fair Use: it's analyzing and deconstructing the media as media (ie media literacy). My school and administrators may frown upon this ("Let's use instead one of the approved-for-classroom-use movies we already own [and which we paid a lot for, btw]"), but that doesn't detract from the Fair Use claim.

And then on the other hand again, if I were to screen clips of Dark Victory -- clips that are pre-selected/edited to illustrate gender issues -- from Holt McDougal's media literacy program or Pearson's new one (which I happened to work on), a program whose DVDs I borrowed from a colleague or whose content I grabbed off some Web site or ning, then that's not Fair Use... there's no societal benefit to my simply being cheap and not paying for the program.

And the funny thing is, technically, being a nonprofit doesn't really enter into it per se except for the "societal good" part; that is, a non-profit's mission is apt to align with this idea, yes... but so can a for-profit's on occasion. That is, McDougal and Pearson paid the rights holders to use certain movie clips but that's an issue of prudent legal advice and conservative business practice, not the letter of the (Fair Use) law. For example, if I were a nonprofit using Hollywood clips, the same standards would apply: being a nonprofit is not an automatic shield, nor is making money an automatic evil. After all, look at "parody" -- that's fair game b/c works of parody are said to benefit all of us culturally... and if they happen to make the producers of Scary Move 9 millions of dollars, too, that's fine as well. They're still allowed to use copyrighted images and ideas in their work.

Anyway, as I said, I'm probably very rusty on this stuff... so I welcome disagreements and folks correcting me where I'm off.

-Peter

[Suzanne Lustie]

Well at least my feeling like I was in a mine field was not totally without merit. :)
Suzanne

[Antonio Lopez]

I think Phoenix University assumes that YouTube polices its videos, but the process is selective. Usually it's innocence until proven guilty. That is, someone has to report a copyright violation before it gets removed. There are algorithms, however, that google runs that can detect copyrighted material. For one of my classes, for example, I posted a clip from Saturday Night Live, which got removed right away. YouTube gave me the option to make a fair use claim, which I did. The video was restored afterward (you can view it here: http://www.youtube.com/watch?v=1qV7WdygUkc).

As Lawrence Lessig points out in Remix, there is too much ambiguity in copyright law that can make anyone into a potential violator. For the most part, I do not know of a single media literacy educator who has been asked not to use any copyrighted material. Is it because we are free and clear of the law? I'm not sure if that is the case, though I interpret fair use liberally in my favor. I think part of it is that it's not worth the trouble to go after media educators. It may be a case, though, of the other shoe not dropping (yet).

[Frank W. Baker]

I think Renee Hobbs (et al) have covered this topic in their latest copyright report.  See the references to "transformative use" under Fair Use. 

On another topic: I have started to create a database of streaming web videos (including YouTube) that could be used to teach elements of media literacy.  You can find the list here.

[Fred Haas]

Suzanne:

Your confusion is completely understandable and justified. All of the Renee Hobbs material is absolutely top shelf and will greatly enhance your understanding and demystify a lot of the confusion. However, University of Phoenix may have overly restrictive policies that are misguided and uninformed. Legal teams have obligations to protect their clients and the safest way is always to say, "No, you can't do that."

In this arena, you, as an educator, have certain rights to fair use of copyrighted material. That is simply fact. Moreover, copyrighted material can and has been used with the provision of fair use to even make money. Hobbs even highlights a case on this precedent. So the fact that you work for a for-profit may not be the mitigating factor. Where you are likely going to have the greatest problem is exercising your rights within a university that has put undue restrictions on you as an employee, be they invalid or not. This might make you more vulnerable to consequences with your employer than subject to copyright infringement or a lawsuit

Good luck,

Fred