On not scaring people.

For folks who haven’t thought much about copyright before, the end result of attending one of my presentations or workshops, especially ones focused on fair use, is sometimes a very constraining feeling of fear. I’ve known about the problem for a while, and have tried a number of more and less successful techniques to prevent or address it. Fear and risk-aversion is SO not a good copyright-education result.

On Monday I had to do a presentation for a slightly larger group than usual (about 50 people), and rather than repeatedly split in to small groups to discuss fair use examples, I switched up the plan a bit, and put some examples on the screen for whole-group discussion. The switchup resulted in a truly unexpected moment of insight. Here’s the slide that caused the revelation:

Slide showing an anatomical illustration of a dromedary skeleton and posing the question whether it is fair use to use this image, and 20 others like it from 3 different books, in an appendix to a PhD dissertation

This slide went up on the screen after a long discussion of the details and flexible nature of fair use. Even knowing about my “scaring people” problem, I was kind of shocked that, when I asked “Is this fair use?”, the whole group answered back firmly, “No.”

Reproducing an image like this would of course not always be a fair use, but the situation described on the slide is certainly not a slam-dunk, easy, clear, 100% “no way”. Yet almost everyone in that room was pretty sure it was not fair use. Here was my fear problem demonstrated boldly (and in a distressingly large percentage of attendees.)

Not quite sure where it’d take me, I asked the group to walk through the four statutory fair use factors. What’s the purpose? (Educational, non-profit, possibly commentary, they answered.) What’s the nature of the copyrighted work? (Published, mostly factual, they answered.) What amount is being used? (Not much, they answered, just a small part of the book. I pointed out that it was all of the image…) What effect would this use have on the market? (None, they answered. I pointed out that if the rightsholder was willing to sell a license for the use, there might, in fact, be some market harm.) By the end of this quick exchange, I was pleased that the group seemed to have backed away from that initial fear-based response. In fact, they may have moved a little too far away – they stampeded kind of quickly towards “totally obviously fair use!” (Fair use is never totally obvious.)

On reflection, I think one of the biggest pieces of my “scaring people” problem may just be a too-fast transition from the general principles to specific application. We went from “here are the things one must think about in relation to fair use questions” directly to “do you think this is a fair use?” When you’ve only just begun learning about fair use, there are JUST SO MANY THINGS TO THINK ABOUT that even for the very smart, analytical, clear-eyed folks I often work with at the University, it’s overwhelming to try to apply them independently right off the bat.

Taking a moment to stop along the way at “Here’s a fair use question; let’s think it through together” seems to be a really good tool for defusing the fear and sense of constraint. Tried a guided analysis process in a smaller group workshop today, and already the follow-up evaluations seem to show fewer participants feeling overwhelmed and/or confused after they leave. I don’t think it’s completely solved the problem – the uncertainty inherent in fair use just is kind of scary, especially when you’re new at this stuff. But I’m glad to have accidentally uncovered another tool for my fear-defusing toolbox.

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  1. Isn’t the question of “fair use” quite different from the question “can you use” ? If fair use is a legal defense, the first assessment is whether there would be a legal challenge and what the likely risk of such a challenge would be. A dissertation does not (usually) get wide publication or use. A set of 20 images in its appendix is unlikely to draw any kind of attention at all. There is a reasonable chance that a fair use defense could work if it were challenged, so the consequence, should the case be made, might even be a successful defense. There is so little harm done that the consequence of a loss is unlikely to be very high.

    I would add all this up to say, of course you “can use” this material in this way. Just be academically honest, give credit, cite the source, and don’t let fear gum up an academic exercise.

    Part of the chilling effect is that we feel we have to somehow have a bulletproof “fair use” case before we make a decision to use. How often will we even need that defense. I think behaving reasonably even in the face of doubt and risk is highly underrated.

    1. Absolutely, the question of actual legal risk is quite different from the question of whether copyright law clearly permits a particular use. My main goal in these classes (which is why I consider scaring people to be a big problem) is to give people the tools they need to make reasonable guesses about whether a use is legally permitted – and to help them feel comfortable making those guesses. But for many reasons, I’m not sure the pragmatic extrajudicial considerations have a place in a short intro-level workshop.

      I really do think this is an important point, and the more detailed reply I started drafting has been getting on to the five-paragraph mark, so I’m going to make it a separate post. Got some other things to get done first, but hopefully, up later this afternoon.

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