On Wednesday the Duke Libraries’ Instruction and Outreach department held a retreat on the topic of “Digital Literacies.” The excellent keynote speaker for the event was Ellysa Cahoy from Penn State University. As part of the retreat, I spoke very briefly about copyright issues around the use of digital media. My comments ended up being very different than what I originally planned, based on the things I heard from Ellysa and the Duke faculty who participated in a panel talking about the kinds of new media assignments they were using. Ellysa has some kind words about the retreat in general, Duke’s superb instruction librarians, and my remarks in this blog post. On that latter topic, I want to take a minute to clarify and expand on what I said, because I believe the message is quite important.
As Elyssa says, my fundamental message was that faculty who are using creative assignments involving new media, and the librarians who work with them, need to embrace the space given to them by fair use. I hasten to add that I did not say that they should “not worry about using copyrighted material,” but I did encourage a degree of reflection about the nature of the use in question. Events like the lawsuit against Georgia State over electronic reserves and the news coverage about the conflict between UCLA and AIME over streamed digital video have a tendency to make librarians very nervous about all uses of copyrighted works. But all uses are not the same; our courts have been very receptive over the past three decades to uses that are perceived as “transformative.”
Transformative uses are, broadly speaking, uses of copyrighted works which create something new that has a different purpose than the original work involved. Transformative works are often identified as those which do not create any kind of market competition with the original work. Thus a parody of a 1950’s classic song by a 1980’s rap group is a transformative use of the original, and an historical work about the Grateful Dead makes a transformative use of original concert posters for Dead concerts when it uses them to illustrate a time line. One does not buy a history book instead of attending a concert, nor does one buy 2 Live Crew’s music as a substitute for Roy Orbison’s (although a truly eclectic music fan might buy both). In a fair use analysis, transformativeness strengthens the argument for fair use based on both the first fair use factor – the nature and purpose of the use – and the forth factor — the effect of the use on the markets for the original.
When students (or faculty) use media like film, music and video clips to create remixes, mash-ups and other kinds of commentaries, this is a strong example of fair use. These uses are quite different than the largely iterative ones like scanning a book chapter for e-reserves or streaming a video through a course management system. These may or may not also be fair use – that is a highly controversial issue – but they are very different from creative and transformative uses. When I realized that the retreat was discussing such student assignments as using advertisement illustrations in “story board” essays about popular culture or re-mix film and music clips to create PSAs for local non-profits, I changed the focus of my remarks from warnings about iterative uses to encouragement of these transformative ones. To my mind, these kinds of uses, where new scholarly and social valuable works are being created, are at the heart of the rationale for fair use in our law. While copyright law often seems to inhibit pedagogy, this is one area in which the normative interpretation of fair use offers strong support for creative teaching.
One thing I wanted to stress about transformative use and student assignments was the way in which the fair use analysis actually encourages good scholarship. It seems clear that the more integrated copyrighted material is into the basic argument or message of the new work, the stronger the argument for transformative fair use will be. To take one example, music added to a student-made video simply to produce a more pleasing product is much less likely to be fair use than music which contributes to the overall theme of the work in a direct way. Thus, a conversation with student and faculty creators about copyright and the importance of thinking through the fair use analysis is not only valuable in itself, it can actually support the creation of better, more coherent scholarly work.