I think the increasing number of digital projects that we see in education

also kind of brings this to the fore, and one of the challenges can be that for

a website that is part of a digital project it's very common to have images.

It's almost considered a necessity to have images.

And there can be cases and I'm thinking of one in particular,

where there was a desire to use photographs of writers on a website.

And it wasn't that the photographs were being commented on.

It wasn't that the photographs were integral even to

the functioning of the website, or the, the scholarly purpose of the website,

they were really there to be decorative.

They didn't have, you know, historical marker or significance.

You know, it was a desire just to represent these authors you know,

in photographs on this website.

And so in that case, any photo would do.

It wasn't that I need this particular photo of this particular writer,

and so in that case, we are actually seeking out photos for

which we can get permission to use in that way.

And distribute on that website.

So we're not trying to make a fair use argument,

because we don't think it's a strong fair use argument.

There are other cases where, you know,

things are directly tied to the scholarship or directly tied to

the integral academic argument within that project.

But in this case, you know,

it is really much more an illustrative or decorative use as images.

>> That really illustrates nicely,

making the transition from one question to another in our framework for analysis.

You've looked at this and said, we are going to do the fair use analysis.

Eh, when we've done it, we are not sure that it is fair use, so

we're simply going to move to our next option.

Find a way to get it done.

In this case, the way to get it done is to ask for permission.

>> Mm-hm.

>> And I think Ann has an illustration of that framework that's really good, so.

[LAUGH] >> Yeah, Yeah.

>> And, and as I think you've also noted in other lectures,

sometimes the way to get it done is a hybrid.

>> That's right.

>> Of, of a variety of approaches, yeah.

So recently I have been working with

a post-doc who is doing a digital humanities project.

And what he wants to do in the project is to take memoirs of World War II and

amalgamate it with geospatial data to allow people either in person,

in different places where events of the war happened, or on a map to

be able to access memoirs of World War II when they're looking at or

an particular places where these things happened.

So for example a person might be looking at a map of Berlin and

they would be able to identify that in this place in Berlin

this is where the memoirist was picked up to go to a concentration camp.

This is where the memoirist was in a battle.

This is where someone else learned that the war had ended.

>> Hm. >> Things, things like that for a,

a lot of different places in Europe.

He also said, you know, I'd like to make a mobile app about this.

>> [LAUGH].

>> And I'd also probably like to sell the mobile app.

So we, we had a combination of things.

We had a commercial/non-commercial use.

We had a variety of texts that he wanted to use.

Some of them published in the US.

Some of them published abroad.

Some of them published right after the war, some of them published very recently.

Some of them published by major publishing companies, others self-published or

published by very small publishing houses, so we had all kinds of, of things,

as it were, that he was dealing with, and of course he was also dealing with

>> Mm. >> Were published in the US.

In fact, many, many, many were not.

So this was a, a good chance to work through a lot of the framework questions.

Something else this case brings up is the fact that a lot of times,

and I'm sure this happens to you all, someone will say,

I want to use something and something, and I want to know if it's okay.

And my fir, you know, the question I ask back over and over again, is tell me more.

>> Tell me more. >> About your project.

>> When lawyers say.

>> Yes,. >> It depends,.

>> Yeah. >> What we mean is you have been told

as enough yet.

>> We need to know some more things, what's the first something,

what's the second something, who are you, what are you doing, and

the more of those that you can answer the better we can help you out.

You know, sometimes you don't know all those things up front like

one of my questions was what, what memoirs are you going to use?

A whole lot of lump, you know, is, is as far as he could go.

>> [LAUGH]. >> So far but everything he could fill in

helped me work with him on the framework is the work protected by copyright?

And so we, you know,

we needed to know was, were works published with formalities?

Were works pub, where were they published?

Had they been published at all?

Some of these issues that we talk about when we talk about international copyright

where some of these memoirist people who got special copyright terms in Europe?

They had all of those kinds of situations.

>> When did they die is a very important [CROSSTALK] piece of

information they have.

>> When did they die.

Yes, yeah.

And so, a specific exception in copyright law that covers my use, probably not.

>> Yeah, after that one I think it's.

>> We, we really, we didn't really find anything that works and so

a license that covers my use.

It could be that some of these authors would grant a license, but

there's certainly no place you can go and say, okay I want to use a large amount

of an unspecified but perhaps large amount of a memoir in a geospatial project,

not really a li, a license mechanisms that set up at this point.

>> But it's possible too,

I would want to find out where he's getting the geospatial data.

Because that may be from a data base that is subject to a license and

you'd have to do to look into that.

Maybe he's getting it from someplace where that's not an issue.

>> Yeah.

>> But that's one way that question might be relevant.

>> Yeah, yeah, and

sometimes the geospatial licenses are confined to non-commercial uses.

>> Right.

>> Right. >> So there's that too.

Yeah.

>> So a website. >> Yeah.

>> Might be okay but the mobile app for which you charge may be not.

>> Right, Right. >> May not be so much, right.

Is my, is my use covered by fair use?

And this is where I asked a whole lot of questions.

>> Sure. >> Tell me more,

tell me more, tell me more.

How much do you want to use all of these questions about

how, how, you know, how much am I going to use, how is it going to be presented?

All of those things meant that, in some cases,

probably we were looking at fair use, and probably sometimes, we weren't.

>> Right.

>> The, the risk question came in again,

you know, that probably some of these authors were okay with, or even very,

very happy to say, you know, I told my story to the world.

You know, I witnessed these horrible things, and

I don't want the world to forget them.

Other people probably wanted some, were going to want some money.

So it, we were looking at a, you know, sort of a gamut of authors and,

and motives and needs.

Do I need to get permission?

So, you know, we're all over the place there.

And again, we can't answer that question anywhere close to accurately,

until we know exactly which works.

And a lot of times,

you have to sort of work both ends against the middle with that.

Well I want to use everything I can use so you start asking and

then the world gets bigger or smaller depending on the answers you're getting.

>> That's also a really nice illustration of working right through the questions.

>> Right. Because if you start with getting

permission you have a monumental task ahead of you.

But if you've eliminated some because they're in the public domain, and

there are some where you're only using a small amount and

you think it's fair use, by the time you get to the question or

permission you have a much more realistic vision of what you need to do.

>> Yeah, and you need, a lot of times, to get permission, a fairly specific idea.

>> That's right. >> That you can give the rights

holder about.

>> Yes. >> What you want.

>> That's right.

>> That's right. >> True.

>> Yeah. To ask specific permission.

>> Right. >> Because you don't want to

ask permission only for a website and then turn around and

realize you don't have permission, then, for a mobile app or for some other, or

a commercial use instead of a, a non-commercial use, you know?

>> And in this situation then he might need permission to display text,

but also to be able read, you know,

perform essentially parts of the text as well, so yeah.

>> So the more you define the project,

the more clear the answer to these questions can become.

But, asking the questions in the order presented can also bring clarity

to the project.

>> Right. >> And it's a real reminder

that the questions are simple but the answers are not.

>> Right. >> Correct.

>> The, the, it's a really good framework for thinking about things, but

it doesn't, it helps reduce the complexity but

it doesn't make it go away with a project like that.

>> Right. >> Yeah.

Well, we hope that these examples that we've given you and the ways that we have

worked through it, and particularly the example that Ann has given,

really using the framework questions, will really help give you some grounding in

applying fair use and navigating your way through copyright questions.

And hopefully, this will really propel you forward in becoming a copyright maven.

Applying Fair Use, Part 3

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