Another Chronicle article overlooks fair use
One of the things that makes me most cranky about media policy & academia is how quickly educational institutions and academics endorse knee-jerk copyright protectionism as an unquestioned norm, whether or not the law actually upholds such beliefs. The Chronicle of Higher Education, the main trade journal for academics (which also locks its archives to subscribers, so apologies to readers who cannot access these links), seems more than willing to sustain this attitude, regularly ignoring the role of fair use in academic publishing and pedagogy. Last year I wrote a cranky letter to the Chronicle complaining about an article where the Presidents of the RIAA and Penn State presented a united front against those pesky pirates, as if the goals and morality of the record industry and higher education were in lockstep.
This morning I read another Chronicle article to make my blood boil – since I now have this outlet for my ire, I’ll self-publish my indignation (does anyone think I should also send in a version of this rant to the Chronicle?). In this article, two professors share their tales of close encounters with academic misconduct. The second case is clearly flagrant fraud, with a candidate for a position falsifying his C.V. and lying to the search committee. But the first case, which the article positions as equivalent in generating moral outrage and ethical concerns, seems much more ambiguous to me, with the accusing professor being too quick to judge what he clearly has little expertise in.
The story in brief: a Renaissance art historian was asked to review a book (left unnamed) spanning 300 years, which he found wonderful in all ways, including its lavish illustrations. By a coincidence, he discovered that the publisher was recalling the book because neither the author nor publisher had obtained permissions for some of the images. The reviewer, who co-wrote the Chronicle article, holds both the book’s author & publisher to blame in highly moralistic terms:
In these days of pirated music, misrepresented memoirs (James Frey), fabricated news stories (Jayson Blair), fictitious provenances, and falsified résumés, the present situation rings all too familiar. I do not suggest that any of the participants knowingly disregarded legal statutes with spurious intent, but the careless use of unauthorized images is tantamount to plagiarism and constitutes a serious breach of copyright law.
First off, the charge of plagiarism seems pretty ridiculous – he notes that the book cited the creators of the artwork clearly and footnoted copiously. Since I presume that the images he’s talking about mostly predate the 20th century, we should assume that the actual content he’s referencing is not copyrighted (as it would have lapsed into the public domain) – rather the museums & archives holding the pieces have copyrighted the reproductions of those works to be licensed to publishers, postcards, etc.
Now is it a “serious breach of copyright law” to publish a copyrighted image in an academic text analyzing and providing commentary on that image? Arguably no – I would call it fair use, a crucial phrase that does not appear in this Chronicle article. The rightsholders of the reproductions might disagree, but that’s a matter for the courts to interpret, not for moralistic art historians to judge as tantamount to plagiarism and compare to Blair or Frey!
So what do I know? Well, my major scholarly organization, Society for Cinema & Media Studies, published a policy statement over a decade ago asserting that it is fair use to publish still images from a film (even if it is copyrighted) in academic publishing, a position that has never been challenged in court. SCMS is now updating that statement to account for new developments in digital publication and pedagogy, a project I’ve been working on for the past year. Even The Chronicle itself should know that this recent article is not getting all the facts right – they published an account last year of art historians working to change current practices and assert fair use to allow for more publications at reasonable costs in the face of outrageous rights charges & restrictions from museums.
As others have argued, fair use is a muscle that only retains strength through exercise and practice. We need to wave the fair use wand at any example where it might apply – even if a court rules against it, you can’t simply accept the position of rightsholders asserting control without a fight, nor can you judge a scholar as a plagiarist or fraud for trying to publish a work containing images in the public domain. I wish the Chronicle would police its own gates a bit more.
Filed under: Copyright, Fair Use, Media Politics | 6 Comments