General Rules of Thumb

General Rules of Thumb

Although you have to seriously consider copyright law, do not lose sight of education’s need for the free exchange of information. Always consider Fair Use by utilizing the four factor test in every case: 1) purpose of use; 2) nature of the work; 3) amount used; and 4) market effect. (See Fair Use Factors in Detail section)

Public Domain.* This applies to all media. In the case of images, there are dual copyright concerns; the underlying work of art and the photographic reproduction itself are subject to copyright. If securely in the public domain, use of such text and images is unrestricted. Be sure the work is securely in the public domain; typically, but not always, the creator’s lifetime plus 70 years. We urge you to consult Professor Lolly Gasaway's public domain chart or Cornell's public domain chart. See Images section for further details. To determine if an image is in the public domain, use the Copy Photography Computator. This program sets forth parameters of good practice and can assist in making good decisions about image use.

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Rules of Thumb for Text

Website

When abstracting information from another site, make an attempt to contact website author for permission. Document your request.
Limit yourself to portions rather than to the whole text.
Use the same citation guidelines as you would for other sources. See http://www.bedfordstmartins.com/online/cite7.html, http://www.apastyle.org/elecref.html.
Linking to another site is an alternative approach.
In general, incorporate the text of another website as you would like someone to do with yours.
After making a good faith effort to determine who holds copyright (or general rights), make a case by case decision as to how to proceed.

Protection of your Own Website

Use a password for access if appropriate. Keep in mind that your website is open to the world.
If it’s for a class, go through UCI’s Electronic Educational Environment. (Contact Dwayne Pack at dpack@uci.edu, or EEE )
Include notice of permission for use of any of your material.
Although you have your material in the tangible medium of your website, it's automatically copyrighted.
Keep careful records of any permissions correspondence.

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Rules of Thumb for Images

Digital images are being utilized in academic contexts for primarily five types of educational uses: faculty and class Web sites; instructional tutorials; image study and research; online catalogues; and projection in the classroom. These applications require different levels of image quality and varying viewing contexts, each of which comes with its own legal baggage in terms of copyright law. See the Visual Resources Association for good information on intellectual property rights and copyright specifically focused on image uses.

RECOMMENDED PRACTICES

For digitizing images try to get permission to use the electronic copy for educational purposes from the actual copyright holder. A photograph of a work of art actually embodies two copyrights, one for the original art and another for the photograph of the work of art. It is important that you consider both when determining the rights to an image. This is not as straightforward as it sounds, and you should proceed carefully.
Public Domain images (those in which neither the underlying work of art documented nor the photographic reproduction itself is subject to copyright) may be safely acquired by any appropriate means, including copystand photography or scanning. Use of such images is unrestricted and thus the most desired form of image to add to a Web page. Be careful that the image is securely in the public domain, (See Sonny Bono Copyright Term Extension Act in the Legislation section), or that you have permission from the photographer. If you are the photographer, you probably hold the copyright. If one of your students is the photographer, he or she holds the copyright; you need to ask permission to digitize it. For an excellent chart on public domain, see Prof. Lolly Gasaway's chart or Cornell's public domain chart.
There are Fair Use Web sites that will allow you to copy digitized images of public domain objects for reuse in an educational setting. There is some trust involved here in terms of the quality of the Web site and the interpretation of its right to use the image. Try the Finding and Using Images link on the UCI Visual Resources Collection Web page. To better understand the concept of a fair use Web site, see Digital Images and Fair Use Websites.
Large scale licensing is an option for the campus or the UC system. Licensing entails securing permission from the presumed rights-owners and asking for formal authorization to use their commercial product for educational purposes. The cost of such a privilege can range from minimal to expensive, and the contracts vary from straightforward to unsignable. Therefore it is best to collaborate on such ventures. The California Digital Library (CDL) has licensed hundreds of thousands of digital images, presently available on the CDL web site. If you would like additional information or would like to discuss commercial products available in your academic area of interest, please contact Maureen Burns (maburns@uci.edu) or send feedback to CDL.
It is a simple process to copy an image directly from the Web if you are pleased with the quality and if it suits your purpose. However, ask the Web site’s author or creator for permission to do so and explain your educational purpose.
Many museums have digitized their collections and will allow you to copy the image from the Web. They tend to prefer that you use their photography to control the quality of the image. Clarify or demonstrate to them your educational purpose. (Museum rights and reproductions people might want to see your use of the image on your Web site.)
Commercial vendors do exist for digital images. (Many of them are the same people you may have contacted for permission to use a photograph for publication, or they are vendors of slides). It is fine to use these sources, but beware of possibly high fees that might have to be renewed annually or other restrictions that might limit your use of the image. They probably have the copyright for their photograph of the art object, but may not own the art. In that case, it is wise to go directly to the museum. These companies tend to view technological progress as a burgeoning new market to be tested. Do not duplicate their commercial photography without permission.
A good clearinghouse from which to obtain rights and permissions of many represented contemporary artists is Artist Rights Society in New York.
If you cannot locate the image in any of the above ways, consider scanning from books and slides. However, keep quality issues in mind and remember that the publisher may have rights too. Generally, for images scanned from books, a site with only campus access is recommended. At UCI, for example, you can get a password from the EEE (eee@uci.edu) for course protection.
A good rule of thumb is to copy not more than 10% of the images from any given source and to make not more than one digital copy of the image. (See Basic Books v. Kinkos in the Legislation section.)
For digital images on reserve specifically for a class, it is prudent to prohibit access to the site when the class is not being taught or to remove the Web site temporarily (archiving it to retain the work).
Always acknowledge the source of the image just as you would in a publication.
Keep careful records of any image permissions correspondence (hard copies best).
Consider reciprocal links to the Web sites that you copy from, if appropriate. This is a courtesy, but may be a condition for use in some cases.
Thumbnail (125 x 125 pixels) and vignette (250 x 250 pixels) digital images, i.e. small scale, low resolution, are not as much of a concern in terms of copyright as large, high resolution images. They are considered of little intrinsic commercial or reproductive value. Thumbnails on the Web are typically used for reference. Recent case law has reinforced that thumbnail image linking on the Web is a fair use. See Kelly v. Arriba Soft.

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Rules of Thumb for Multimedia

Legal issues pertaining to Multimedia are complex, because means of expression are combined. Text, images, audio, video, and computer related material come together — all of which are protected under copyright law. Therefore it is very important that developers of multimedia projects understand the basic principles of copyright law to avoid infringing the copyright of others and to protect their own original multimedia creations.

Current technology has made it easy to unite different media, putting developers at risk of copyright infringement. If the work you use isn’t in the public domain, it is important to obtain permission through an "assignment" or a "license" before including copyrighted material in your work. Fair use has a role in multimedia, but educational use should be clearly established. Works created for course websites or broadcast for distance learning need to be analyzed carefully to establish what rights need to be acquired. These rules of thumb for multimedia cover the fundamentals of copyright law. If you have any additional doubts, advice from experienced legal counsel is recommended.

The Music Library Association provides an extensive section on fair use guidelines for educational multimedia.

RECOMMENDED PRACTICES

TEXT: See rules of thumb for text.

IMAGES: See rules of thumb for images. Speak to Maureen Burns.

FILM: Speak to Barbara Cohen or Maureen Burns.

MUSIC/AUDIO: See rules of thumb for music.

Remember that fair use doesn’t preempt or replace licenses or other contractual obligations. Students and educators may incorporate portions of lawfully acquired materials in their multimedia projects for class projects or teaching tools in support of specific curriculum-based activities at educational institutions.

Exercise caution when downloading material from the Internet. As with other media, it is very easy to copy material from websites. However, it needs to be determined whether the material is in the public domain or whether the Web usage is fair use. Permission should be obtained from the owner as with more traditional media such as books, sheet music, artworks, etc.

Identify original copyright owners and request their permission. Keep a record of owners who grant or refuse their permission. Multimedia projects that could be either broadly or commercially disseminated, whether immediately or in the future, should seek permission before the project is completed.

Even if your project may exalt another individual’s work, do not assume that the owner will be pleased and therefore not consider you in violation of his/her exclusive rights. Always seek permission.

Properly credit your sources and display the copyright notice © and the copyright ownership information given in the original source.

Modification of an original work, whether it is an image, audio or video clip, via digital editing software, is very risky. Many works are protected by "moral rights" prohibiting or severely limiting alterations of any kind. The Visual Artists Rights Act of 1990 amended the copyright law to protect artists’ moral rights and to preserve the attribution and integrity of their work. The works in question (created after June 1, 1991) are considered high art: they are either unique or reproduced in a series of 200 or fewer and were created for exhibition purposes.

Cartoons and other mass-produced images or logos are also registered trademarks, which are protected by trademark law AND copyright law. Trademark owners are very committed to protecting and controlling the use of trademarks.

A notice must be included on the opening screen and on any other accompanying materials of a multimedia project clearly stating that certain materials were acquired according to fair use guidelines under copyright law and are restricted from further use.

The reproduction or decompilation of copyrighted computer programs, even for educational use, is forbidden.

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Rules of Thumb for Music/Audio

Music poses a number of special issues and a variety of challenges when it comes to fair use and copyright law. Owners of music enjoy additional legal rights due to the capacity of music to be performed, recorded, and arranged. For example, there are several layers to music copyrights in that one person may own the copyright to the music and another the copyright to the recording. Many scholarly and pedagogical uses of music materials are legitimate and vital to preserve and foster creativity and to ensure transmission of cultural heritage in the United States. Intention and end result, not means of conveyance, should be the determining factors in deciding whether the specific use of music is fair use (see the four factors). It should be remembered that the recording industry is a powerful opponent in terms of litigation, so caution is advised here.

Traditional analog music has historically had many restrictions on its usage, even in educational contexts. The Music Library Association offers detailed guidelines for educational uses of music. Digital music is even more complicated, because access to music is abundant through an unprotected digital form, i.e. CDs. Files containing high-fidelity music can be made small enough for both storage and downloading with the existing technology. Developing an appropriate business model is in process, but by no means complete, and current court cases abound which may necessarily change best practices. Meanwhile, the development and deployment of technical protection mechanisms provide options for educators.

*Public domain refers to the status of publications, products and processes that are not protected under patent or copyright.

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Rules of Thumb for Film

Please get in touch with Maureen Burns or Barbara Cohen with your individual questions.