Shepard Fairey, Barack Obama “Hope” poster, 2008

Why Copyright? Why Visual Art?

Copyright exists to allow creative ideas to flourish. It promotes making and the dissemination of ideas by providing creators with protections against the misuse of their work. However, many people abandon projects due to copyright concerns. That is why the doctrine of fair use is so important, especially in the visual arts. Fair use allows the use of copyrighted materials without the permission of the copyright holder, and therefore gives more freedom for artists to express their ideas.

Art responds to ideas about our culture and society. For this reason, many works of art are inspired by the work of other artists. There is even a field of art dedicated to using pre-existing objects or images referred to as appropriation art. Appropriation art has been extensively used since the 1980s and raises questions about originality, authenticity, and authorship (Tate, “Appropriation.” Date accessed February 13, 2020. https://www.tate.org.uk/art/art-terms/a/appropriation). Fair use can be understood through the context of appropriation art. Whether art is considered fair use or not is determined by four factors.

Four Factors of Fair Use

1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes.
2. The nature of the copyrighted work. For example, a court will consider whether the work being copied is informational or entertaining in nature. Fair use is more likely to be determined if the material is copied from factual work.
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
4. The effect of the use upon the potential market for, or value of, the copyrighted work.

There is no clear formula of how the four factors should be considered in determining fair use. Grey area deliberately exists to assess each scenario on a case-by-case basis. See how this plays out in the two examples below.

Examples

David Smith, Cubi XXVII, stainless steel, 1965. 111-⅜ x 87-¾ x 34 in.

Lauren Clay, Cloud on My Single-Mindedness (Cubi XXVII), acrylic and paper, 2012. 30 x 24 x 12 in.

In 2012, artist Lauren Clay created a small piece, Cloud on My Single-Mindedness, using soft materials. This piece was a response to original work by artist David Smith that was 8’ by 10’ and made from stainless steel. Clay’s work is an interesting commentary on the abstract expressionist art of Smith. Although the two pieces are visually similar it was ultimately settled outside of court that Clay’s piece met the standards of fair use because the small size, soft materials, and colored surfaces were a feminist response to Smith’s large-scale, stainless steel piece.

Left: Patrick Cariou, Yes Rasta, 2000; Right: Richard Prince, Canal Zone, 2008.

In 2000, photographer Patrick Cariou published a book on Rastafarian culture in Jamaica. Appropriation artist Richard Prince used photos from the book without attributing work to the original artist. Prince’s work garnered over ten million dollars in profit. This case raises questions about the extent to which Prince transformed, or did not transform the piece, what his ultimate objectives were, and whether his work diminished the market value for Cariou’s work. Ultimately, an appeals court decided that Prince’s work was transformative enough to a reasonable observer.

The last example, especially, illustrates the difficulty of assessing fair use. When writing about, teaching about, or making art remember that fair use is generally favored under these conditions: 1. using material for educational purposes or personal study; 2. transforming the original work in a way that it adds meaning; 3. using only small portion of the original work; 4. being able to articulate the use of copyrighted material by the objective of the new piece; and 5. citing the source of the original work.

[Content for this post was inspired by Fair Use in the Visual Arts: Lesson Plans for Librarians, an open-access e-book produced by the Art Libraries Society of North America. To learn more about fair use in the visual arts consult the Code of Best Practices in Fair Use for the Visual Arts by the College Art Association.]

Creative Commons. Creative Commons for Educators and Librarians (Chicago: ALA Editions, 2020).

The recently issued Creative Commons for Educators and Librarians serves as the companion for the Creative Commons Certificate course (which I have not taken). At five chapters and 130 pages, it seems slight, but is always thorough and dense with references to additional resources (which are themselves annotated with Hypothes.is on the certificate website). Whether one is pursuing the certificate or not, this book is an excellent guide to understanding and using Creative Commons licenses.

Creative Commons (CC) is a set of copyright licenses, a nonprofit organization, and a movement (CC Global Network). CC got its start in 2001 as a response to the 20-year copyright extension passed by the U.S. Congress in 1998 (changing copyright to last the life of the author plus 70 years). Today CC licenses are international and used on 1.6 billion works on 9 million websites.

So what are Creative Commons licenses?

CC licenses are legal tools that function as an alternative for creators who choose to share their works with the public under more permissive terms than the default “all rights reserved” approach under copyright. (p. 7)

Creative Commons licenses give everyone from individual creators to large companies and institutions a clear, standardized way to grant permission to others to use their creative work. From the reuser’s perspective, the presence of a Creative Commons license answers the question, “What can I do with this?” and provides the freedom to reuse the work of others, subject to clearly defined conditions. All CC licenses ensure that creators retain their copyright and get credit for their work, while still permitting others to copy and distribute it. (p. 39)

To be clear, CC licenses are not an alternative to copyright (in the either/or sense), but are used with copyright, and are actually dependent upon it. Creative Commons licenses are intended for copyrightable works (text, image, sound, even 3D models), but are not appropriate for software, which has its own set of tailored licenses, and are generally not recommended for data (instead, CC0 or the Open Database License can be used).

The basics of using the licenses are covered well in the book, such as how to apply a CC license to your own work, and how to attribute the CC-licensed work of others. For your own work, you can use the license chooser, which determines a license based on how you respond to a couple of brief questions. Once you have decided on a license, you can mark your work with it, preferably by linking, or writing it out if the work is offline. Issues such as what to do if you change your mind, or find your work used in an objectionable way, are also covered. Everyone who uses CC-licensed works should familiarize themselves with the best practices for attribution and use automated tools whenever possible.

A long-time issue with CC licenses is the meaning of “noncommercial,” which the book clarifies:

It is important to note that CC’s definition of NC depends on the use, not the user. If you are a nonprofit or charitable organization, your use of an NC-licensed work could still run afoul of the NC restriction, and if you are a for-profit entity, your use of an NC-licensed work does not necessarily mean you have violated the license terms. (p. 51)

Creative Commons has a NC interpretation page for those who would like to explore all of the details. The NonCommercial stipulation has been the subject of the few court cases about CC licenses, including a recent case that was decided after the book was published. The good news is that the courts have always accepted and enforced CC licenses. A related question that comes up is whether CC-licensed works can be sold. The book itself is a good example; while freely available in PDF, the print version is for sale. This model is increasingly being used to publish scholarly books, such as those in the TOME project (of which Virginia Tech is a participant).

The public domain mark and the public domain dedication (CC0) are not licenses but describe the legal status of a work. The book helpfully lists the four ways that works enter the public domain (p. 27): the copyright expires; the work is not eligible for copyright; the creator dedicated the work to the public domain through the CC0 tool; or the copyright holder did not comply with registration formalities at the time (today copyright is automatic). Though not required, CC recommends attribution for these works as a community norm in their Public Domain guidelines. Finding public domain content is facilitated by the CC Search tool, which was also made available in a browser extension shortly after the book was released.

The book’s final chapter, which covers open access (OA) and open educational resources (OER), is a mixed bag.  The section on OA sometimes lacks clarity and includes a few puzzling statements.  For example, we learn that only “some” articles that pass peer review are published by the journal (p. 94), and that under funder open access policies, “researchers must retain their copyrights” (p. 96), which is not how the policies of U.S. funding agencies work. Nor do all open access journals use “liberal” licenses such as CC BY (though some funders may require it). In general, the OA section is a bit confusing in places, and would have been more effective if OA publishing and OA archiving had been introduced early on and clearly differentiated.

Fortunately, the section on open education and OER is stronger. The advantages of OER over proprietary, temporary online access to learning resources are described well, as are the compatible licenses (CC BY is recommended; the ND licenses are not OER since they prevent editing) and the “5R permissions” they make possible (retain, reuse, revise, remix, redistribute). Tips on finding and evaluating OER are outlined, as is the importance of sharing an editable, accessible version of the work.

Although I have been familiar with CC licenses for several years, both creating and using works with the licenses, I learned more than I expected from this book. Moral rights (for example, the rights to be identified as the author of the work and to protect the work’s integrity) exist in many countries, and continue indefinitely even after a work is in the public domain. Because CC licenses only address the copyright of a work, they have no effect on moral rights and other related rights. While U.S. fair use is evaluated according to a 4-factor test, I learned that the Berne Convention, which standardizes copyright law internationally, also accommodates fair use under a 3-step test. And it was surprising to learn that not all countries allow creators to waive copyright by making a CC0 (“No rights reserved”) public domain dedication.

Creative Commons for Educators and Librarians is filled with so many links to additional resources that most readers will benefit from using the PDF version over the print version.  Even so, there are several links that don’t resolve properly because they are either partially linked or they span two lines. While this problem is relatively easily remedied by the reader, another issue runs deeper. The abundance of links in this book likely means that some will be “404” in a year or three from now. I always wonder about YouTube links as well, since Google can choose to do anything it likes with those videos, including deleting them. Preservation, including web archiving, is often overlooked yet is essential to openness.

Creative Commons licenses are a brilliant idea and an excellent fit for academia, where sharing knowledge and receiving credit are far more important than making a profit from one’s work. Hopefully guides like this one will encourage more teachers and researchers to use CC licenses on their works and enable truly efficient knowledge sharing.

Creative Commons for Educators and Librarians is licensed CC BY 4.0 and can be downloaded in PDF, or checked out from Newman Library, or purchased in print at the ALA store. Neither the book nor this blog post constitute legal advice.

COVER DESIGN: ROBERT BROWDER; COVER IMAGE: (C) MICHELLE YOST. TOTAL INTERNAL REFLECTION (COLOR ADJUSTED AND CROPPED BY ROBERT BROWDER) IS LICENSED CC BY-SA 2.0

The University Libraries at Virginia Tech is pleased to announce publication of Electromagnetics, volume 2 from the Steven W. Ellingson and the Open Electromagnetics Project at Virginia Tech.

Electromagnetics, volume 2 by Steven W. Ellingson is a 216-page peer-reviewed open textbook designed especially for electrical engineering students in the third year of a bachelor of science degree program. It is intended to follow Electromagnetics, volume 1 as the primary textbook for the second semester of a two-semester undergraduate engineering electromagnetics sequence. 

The book and its accompanying ancillary materials  (problem sets, solution manual, LaTeX source files, and slides of figures used in the book) are open educational resources: freely available and openly licensed (CC BY SA 4.0). Freely downloadable versions are available at https://doi.org/10.21061/electromagnetics-vol-2. A softcover print version is available via Amazon. A screen-reader friendly/accessible version will be available in late January 2020.

Focus of the book: The book addresses magnetic force and the Biot-Savart law; general and lossy media; parallel plate and rectangular waveguides; parallel wire, microstrip, and coaxial transmission lines; AC current flow and skin depth; reflection and transmission at planar boundaries; fields in parallel plate, parallel wire, and microstrip transmission lines; optical fiber; and radiation and antennas.

Publication of this book was made possible in part by the University Libraries at Virginia  Tech’s Open Education Faculty Initiative Grant program and by collaboration with Virginia Tech Publishing, the scholarly publishing hub of Virginia Tech.

Suggested citation: Ellingson, Steven W. (2020) Electromagnetics, Vol. 2. Blacksburg, VA: Virginia Tech Publishing. https://doi.org/10.21061/electromagnetics-vol-2 CC BY-SA 4.0

About the author: Steven W. Ellingson (ellingson@vt.edu) is Associate Professor of Electrical & Computer Engineering at Virginia Tech in Blacksburg, Virginia in the United States. He received PhD and MS degrees in Electrical Engineering from the Ohio State University and a BS in Electrical & Computer Engineering from Clarkson University. He was employed by the US Army, Booz-Allen & Hamilton, Raytheon, and the Ohio State University ElectroScience Laboratory before joining the faculty of Virginia Tech, where he teaches courses in electromagnetics, radio frequency systems, wireless communications, and signal processing. His research includes topics in wireless communications, radio science, and radio frequency instrumentation. Ellingson serves as a consultant to industry and government and is the author of Radio Systems Engineering (Cambridge University Press, 2016).

A September 2018 blog post regarding Volume 1 of this series is available here. 

Express your interest and subscribe to updates about the Electromagnetics series.

Understanding and Negotiating Book Publication Contracts, prepared by Brianna L. Schofield, Robert Kirk Walker, Katherine Bridge, Alfredo Diaz, Karen Graefin vom Hagen, Anna Kuksenkova, Henry Nikogosyan (Berkeley: Authors Alliance, 2018).

The latest and largest of the series of guides from the Authors Alliance covers publication contracts for all types of books (previous guides on open access, rights reversion, and fair use were covered on this blog).  The guide covers contracts from both trade and academic publishers so some aspects of the discussion will be more relevant for trade books rather than academic books.  (Also worth noting is that neither the book nor this blog post constitute legal advice, and in the interest of full disclosure, I was one of the Kickstarter backers for this book.)

The guide is the product of interviews with many authors, publishers, agents, and copyright experts, as well as more than fifty survey responses from authors.  Some of those responses are captured in text boxes for “success stories” and “cautionary tales”; in addition, fictional “literary lessons” are also set apart from the main text.  A book publication contract “outlines what rights you as an author are granting to your publisher and on what terms” (p.4): it is certainly not something to accept as easily as software terms of use.  Indeed, the authors insist that signing a contract without negotiating is a mistake.  A book publication contract must be in writing and signed, and it is especially important to save copies of it for future reference.

Prior to negotiation, authors should determine their goals for the published book.  Is it important to retain copyright, or to be able to re-use the content in certain ways, or to keep the price low, or to have final say on design choices like cover art?   The guide recommends that authors “devote extra attention to clauses in their contracts that affect the long-term availability of their books” (p. 14).  The guide explains what “in print” and “out of print” mean in the era of print-on-demand and digital publishing, and recommends a threshold of yearly sales to be called “in print.”  If a book does not meet that threshold, an author may be able to regain rights to the book.   At a minimum, don’t assign rights to the publisher that the publisher can’t use.

Copyright is a bundle of rights: “the exclusive right  to reproduce, distribute, make derivative works, publicly perform, and publicly display the work.” (p. 51).  The grant of rights from an author to a publisher can come in three forms: assignment (copyright transfer), an exclusive license, or a non-exclusive license, but most contracts will involve either assignment or an exclusive license.  Regardless of which form the grant of rights takes, the scope of those rights can be limited, for example, by language, geography, format, and/or duration.  Duration may particularly be worth considering, since the current term of copyright is life of the author plus 70 years.   If a publisher goes out of business, for example, it may be difficult if not impossible to recover rights for the book.  In an interesting “success story” on limiting duration of rights, an author granted exclusive rights to a publisher for five years, after which rights were non-exclusive.  This allowed the author to post an openly-licensed version online, while enabling the publisher to recoup costs during five years of book sales (though there is some evidence that the online availability of books can help print sales).  If a publisher won’t  accept a limitation on the duration of rights, an author can ensure that there is a rights reversion clause or a “license-back” in which certain specific, limited rights are returned.  It’s also possible to include a “revert-back” clause, sometimes known as “use it or lose it” clause, in which rights that are unused by the publisher in a certain period of time revert back to the author.  Another way for authors to hold on to rights is to include a sentence specifying that any rights not granted in the contract belong to the author.  Subsidiary rights, which are specific rights that the publisher can license to a third party (such as translation or movie rights), can be an important revenue generator, and are usually shared with the author.  If a publisher is unwilling to change the subsidiary rights language, an author can stipulate a right to approve these licenses, or at least be consulted.

A section of the guide covers an author’s obligations, such as those relating to the manuscript’s length, delivery date, and procedures for copyediting, proofreading, and indexing.  Contracts typically require permission to use third-party material included in the manuscript (which is also common in the copyright transfer agreements for peer-reviewed journal articles).  While this generally applies to only those materials that require permission, an author might ensure that the requirement does not cover all third-party material, which overlooks fair use of copyrighted works, as well as materials that are openly licensed or in the public domain.  For the book’s copyright, the contract should specify which party will register the copyright and when.  Although copyright is automatic under U.S. law, registration within three months of publication will protect against infringement and allow for statutory damages.

What about the money?  Academic authors shouldn’t expect much here.  Advances, however, are common in trade publishing, and are credited against income from book sales.  Royalties are usually expressed as a percentage of the publication price, net income, or net profit– it’s important to understand each calculation (there’s a chart on p. 204).  Both trade and academic book contracts may include an escalation, or an increase in the royalty percentage once a sales threshold is reached, and most contracts provide for regular accounting statements to be sent to the author, and should be insisted upon even if you don’t expect significant sales.

Understanding and Negotiating Book Publication Contracts, like the other Authors Alliance guides, is a clear, easy-to-read guide focused on an author’s control of their works, particularly the ability to make the work available in whatever form the author wishes.  The guide is a valuable resource for all authors, and is an open access book (licensed CC BY) available online in PDF.   Those readers who prefer print can order a copy ($30) from the Authors Alliance, or check it out from Newman Library.  For more information, see the Authors Alliance’s Publication Contracts resource page, which includes a link to author success stories in negotiating book contracts.  Also of possible interest is the Model Publishing Contract for Digital Publishing, a Mellon-funded project of Emory University and the University of Michigan.

(Thanks to Peter Potter, director of Virginia Tech Publishing, for reviewing a draft of this blog post.)

OER are More than Just $Free

Open Educational Resources (OER) are expert-authored and freely-shared learning materials available in various formats. They are not just textbooks and they enable much more than resources which are “low” or zero cost. OER are licensed to be customized, can be used in-part or as a whole, and can be adapted, combined and re-shared (with proper attribution) to create something new that fits a particular purpose. This transformation affordance significantly sets them apart from resources that are temporary (rented), or described as low-cost, zero-cost, or affordable.

Open Educational Resources (OER) are freely and publicly available teaching, learning, and research resources that reside in the public domain or have been released under an intellectual property license that permits their free use and re-purposing by others. They include full courses, course materials, modules, textbooks, streaming videos, tests, software, and any other tools, materials, or techniques used to support access to knowledge. – adapted from the Hewett Foundation

By using, curating, and sharing OER, course-material selectors can reduce cost-related barriers faced by their students and beyond. Course materials cost far now than more than even 20 years ago. College textbooks have among the highest rates of price increases among U.S. goods and services according to the U.S. Bureau of Labor Statistics. These costs are real for students and have significant personal, ethical, and academic impacts.

Used with Permission. © 2018 Mark Perry, American Enterprise Institute https://www.aei.org/publication/chart-of-the-day-or-century

Affordances of OER, beyond financial savings

Open educational resources afford control to institutions and course-material selectors in making course materials permanently available to ALL learners, even after they leave school.

By virtue of their open license or Public Domain status, OER allow adaptation and customization. (While there are many open licenses, including open source software licenses, Creative Commons licenses are the most-well-known open licenses.)

Imagine being able to update course materials on the spot to enhance relevance to current events, or to clarify a concept. Imagine giving learners the freedom and responsibility to exercise higher-order level thinking skills and demonstrate their knowledge by evaluating, adapting, or creating new materials. In order to drive these points home, the University Libraries at Virginia Tech hosted the recent 2018 & 2019 Open Education Symposiums. Hosted in the spring, each symposium feature leaders, practitioners, explorers, students, and champions selected in part of the basis of their ability to illuminate affordances of open educational resources. The following recordings document major events held during the 2018 and 2019 symposiums.

Open Education Symposium 2019: Expanding Open Education in Colleges & Universities

2019 Keynote: Improving Access, Affordability, & Achievement with OER

MJ Bishop, Associate Vice Chancellor and inaugural director of the University System of Maryland’s Center for Academic Innovation

Despite the transformative power that technology has had in a whole range of businesses, the history of technology use in education over the last 100 years paints a rather bleak picture of the extent to which digital tools, in and of themselves, can lead to sustainable academic change. The issue is that we often miss the key affordances of the tools that can be employed to help solve learning problems. This presentation traces the lessons we can learn from the history of educational technology in order to explore the true promise — the true affordances — of openly licensed educational resources and the future they may hold for teaching, learning, and student success.

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2019 Lightning Round Talks and Poster Presentations

Presenters: Garnett Kinniburgh, Sue Erickson, Christine H. Terry, Robert Browder, Matthew DeCarlo, Lisa Becksford, Jason Lachniet, and Britton Hipple. Moderators: Alex Kinnaman and Kayla McNabb

Faculty, instructional designers, graduate students, and librarians from six institutions of higher education introduce their peer-reviewed posters with lightning-round style talks. Topics including: Creating open educational resources, linking open education and the career center, #openlearning19 a cMOOC for exploring open education, class book projects, introduction to Odyssey an open learning object repository, open software for graphic, and campus responses to the use of open educational resources.

View poster proceedings and event video.

2019 Panel Discussion: Facilitating Openness at the University: Connecting the Opens + Making Change Happen

Panelists: MJ Bishop, Benjamin Corl, Karen DePauw, Diana Franco Duran, Ellen Plummer, Nathaniel Porter, Peter Potter. Moderator: Anita Walz

This panel discussion begins with brief presentations of several “core open practices”: Open Access, Open Education/Open Educational Resources, and Open Data by experts from the University Libraries at Virginia Tech. Faculty, administration, and student panelists from diverse disciplines discuss their rationale for exploring and in some cases adopting and championing open practices, their perception of overlaps in philosophy and values between different types of open practices, perceptions of the value of open practices for individuals, disciplines, and institutions, and barriers, opportunities, and processes to adopting open educational practices on an institutional level.

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Open Education Symposium 2018: Open Pedagogy

2018 Keynote: Open Educational Practices: Equity, Achievement, and Pedagogical Innovation

Rajiv Jhangiani, Special Advisor to the Provost, Kwantlen Polytechnic University, British Columbia

This presentation draws on a diverse set of examples to make a case for why the shift away from traditional (closed) practices is not only desirable but also inevitable, and how open educational practices (OEP) support the modern university’s mission by serving academic achievement, faculty and student engagement, diversity & inclusion, pedagogical innovation, and the university’s Land-grant mission.

OEP support teaching, learning, and publication in an increasingly diverse faculty and student body. OEP encompass the creation, adaptation, and adoption of open educational resources, open course development, and even the design of renewable, real-world assignments where students are empowered as co-creators of knowledge. These practices leverage learning beyond socio-economic disparities and put engaged, active student (and faculty) learning at the center. These practices champion academic freedom, pedagogical innovation, applied approaches, and innovation. OEP represents learner-centered and learning-together approaches to education that radically enhance both agency and access.

2018 Panel Discussion: Getting Comfortable Working in the Open

Panelists: Matthew DeCarlo, Susan Erickson, James Harder, Jennifer Kidd, Kathryn Murphy-Judy, Carrie Hamilton, Savannah Aigner, Amy Nelson. Moderator: Anita Walz

Taking a transparent, public or open approach to one’s work as an instructor or academic can be daunting for even the most competent and skilled faculty. Faculty, students, and a librarian from five different Virginia institutions of higher education are involved in working in the open — in their teaching, publishing, creating with students, and/or building or leveraging learning experiences. Panelists discuss their motivations, opportunities leveraged, and challenges they encounter in taking non-traditional and open approaches to teaching, learning, and publishing.

Further Details

Virginia Tech’s Open education event recordings from 2014 forward are hosted in VTechWorks. Further details about past open education week events at Virginia Tech are also available.

Open Education Week is an annual celebration of the global Open Education Movement designed to raise awareness about the movement and its impact on teaching and learning worldwide. Open Education Week is organized by the Open Education Consortium. For further details see: https://www.openeducationweek.org #oeweek