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.

Actually, no.

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.

6 Responses to “Another Chronicle article overlooks fair use”

  1. 1 graceish

    “The careless use of unauthorized images is tantamount to plagiarism”? What about the careless conflation of a the very different concepts of plagiarism and copyright infringement, not to mention the careless misrepresentation of what many people would consider a good-faith academic effort (witness the attribution and footnotes)? It’s impossible to tell from the article, but my read is that at least some (and probably a good deal) of the unauthorized use was likely “fair use”. And even if it wasn’t, what’s up with the assumption of bad faith? Copyright is complex enough to trip up nearly anyone, and that includes copyright lawyers.

    But at least some copyright lawyers get cranky about this kind of thing, too — did you see the “Protect Harvard from the RIAA” op-ed last week? If not, here’s the link:

  2. 2 Jonathan Gray

    We can rage about this here, but you *should* send a version of this to the Chronicle: that quoted passage offers an outrageous conflation of practices, the kind of conflation that any teacher at a university or college should be encouraging students to interrogate, not circulating with other colleagues. (not to mention that any sentence beginning with “In these days of…” is almost always guaranteed to end with rank generalization and silliness, or the utterly banal, like sentences that begin “In today’s modern society…”). Even putting the falsification of one’s memoirs next to downloading copyrighted music is an odd pairing, let alone adding the present situation to the mix, and suggests a general grumpyness: “The world used to be better. But it’s now morally debased, so why should we be surprised that something else is morally debased?” is the message, in effect. Thus it’s about morality. So we should challenge the lead trade journal of American academia’s “moral” judgment on how knowledge can or should be circulated, especially when they become lapdogs for the media industries by doing so. How can we in media studies even begin to challenge the film, music, or television industry’s notions of how we can use their products if the likes of the Chronicle are passing Judge Judy style judgment on things like this?

  3. I fully agree with you on this subject, but I’d even take things a step further. Education should be about the free exchange of information and ideas, but too often it’s not. Instead, information in education is often as tightly controlled as ideas originating in corporate America. In other words, maybe education and industry are too frequently in lockstep on issues of “morality” and ownership.

    How are educators supposed to educate when they can only show us the history that they have “permission” to show us? For crying out loud, the example above involves Art History. What’s Art History without the presence of artistic artifacts?

    In other words, I’m not sure that I care whether these items are in the public domain or not. Fair use provides me the right to use these items for fair comment and criticism regardless. This is another reason why taking more of our content to the web is a good idea. Obviously the web does not provide the same payday as a published book, but the point of education is not and should not be the payday. Instead, education should be about free exchange of information in effort to expand knowledge.

    In the end, this reminds of some lyrics penned by a band called The Waco Bros. They sing, “History is written by the winners, but this is loser’s song.” Maybe they should should have sung “History is written by the owners” because when the only history we have is the one written by those who have vested interest in the materials they chronicle, then that history becomes one-sided, incomplete, and false.

  4. This whole “fair use” complexity, which rears its ugly head from copyright law, all too often requires examination in its applications in various contexts. Example:
    Why do the standards remain so loose in book reviews? So many long excerpts are quoted, word-for-word in these, with little attention, seemingly, ever paid to any possible “fair use” violation. In many cases of lengthy reviews the reviewer practically reproduces the book.

    On the other hand, with artifacts held by institutions, these are so jealously guarded, and quickly defended in court.

    Is a sensible, middle-ground interpretation of “fair use” even possible? Or, are we permanently saddled with a double standard? A triple standard? A quintuple standard?

  1. 1 Chronicle Of Higher Education » Chronicle Of Higher Education May 11, 2007 6:01 pm
  2. 2 Fair use letter in The Chronicle « Just TV

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