Fair Use and Copyright Law: The Negotiation
In any research study, the researcher can never be certain of the data and outcomes he or she will receive. In this study I was most interested in learning about and examining the ways in which fair use and copyright law may limit students and how they negotiate the boundaries this law and doctrine present them with. Upon conclusion of the two-stage interview process, I found two major areas of concern with students working to abide by fair use and copyright law. One of these I had anticipated, hindrance of creativity and students limiting themselves, but the second, confusing fair use with plagiarism, was something I had nanticipated.
Listening to students during the interviews I began to wonder if they were thinking about fair use or copyright law at all. After the initial interview only a total of four of the seven students had mentioned fair use and copyright restrictions. One of these students was Diane who, as described above, was composing a glogster collage and had decided not to make a movie because it would require, she thought, extra work to cut down copyrighted material into clips abiding by fair use. I found two key issues in Diane’s response: the need to find an easier method because abiding by fair use would take a lot of time and a confusion between plagiarism and fair use. The first issue of difficulty here seems two fold: it is a lot of work to construct a project that abides by fair use, but the student also seems to want to find the project that it easier to do. The second issue is more alarming to me. Diane appears to have equated plagiarism and copyright into one category. Plagiarism is not a difficult thing to avoid as long as the student cites her sources, and she would have to do so whether she was making a movie or the Glogster collage. This is what lead me to the belief that she was thinking of plagiarism and copyright/fair use in the same way. I began wondering if other students were thinking similar things.
Three other students, Ann, Jamie, and Mike, mentioned fair use and copyright in their first interview. Ann was the student that stated in her interview while constructing her project she encountered a site that explicitly stated the images could not be reproduced due to copyright. In this situation the student was limited creatively by fair use because she was unable to use the images she wanted to. This student was thinking about fair use while constructing her project, but, as the interview continued, I found that she was only thinking about it because the website explicitly stated she could not use the material. As Diane had done, Ann was equating fair use with citation. She assumed that as long as she cited her material in a works cited page she would be abiding by fair use. In contrast to Ann, Jamie fully understood the role of fair use when making his movie. Jamie used the audio editing program Audacity to edit his music into segments that would abide by the rules of fair use. This shows that Jamie was thinking about fair use and applying the factors to his project by using a limited quantity of audio from copyrighted works. The final student that mentioned fair use, Mike, simply said that he had wanted to use audio in his project but had not yet put it in at the draft stage because he was very confused and uncertain about the amount he could use to abide by fair use limits. I got the sense that he wanted some concrete answers and limitations regarding the situation.
Throughout the two set of interviews it became clearer that I was dealing with two sets of issues: creativity and confusion of fair use with plagiarism. All of the students mentioned above reflect these issues. Diane limited herself to a digital collage so she could avoid editing clips, Ann was restricted in her image selection, Mike was struggling with audio selection, and Jamie mentioned to me in his second interview he also had to change some of his image selections because he couldn’t find proper information to cite them. Additionally, students were assuming that as long as they documented their sources they were abiding by fair use. Mike regarded fair use as something he could “get around” via documentation. Michelle assumed that she was abiding by fair use because her movie clips were already online and were not long. As fair use doctrine states these things do not matter. The videos are the intellectual property of an author and are in a tangible format, therefore, they are protected by copyright law. This means Michelle is responsible for applying the four factors using her own judgment Kate showed awareness of fair use, but acknowledged that she was not paying as much attention to the doctrine as she should. However, she also assumed she would be fine as long as she cited her sources. As stated above, Kate felt she would not get into any trouble if she didn’t abide by fair use so she didn’t give it the attention it deserved in constructing her project. This can be detrimental to students in the long run. They have to understand their work has an audience and there may come a time when they could get in trouble, perhaps severe legal trouble, by disregarding the rules of copyright and fair use. It is crucial students understand and apply fair use fully at all times so they become accustomed to the boundaries they have to work within for future projects.
As I noted earlier, I anticipated that fair use would hinder students’ creativity and was interested in specifically how it does so and the ways in which the students negotiate their way through it. Through the interviews I learned that students were limited in their image choices and also chose projects in which they wouldn’t have to deal with taking the time to clip down audio or video, as well as judge the amount of material they could use.
Interestingly though, no student ever mentioned being concerned about the images they were using other than finding the citation information for the material. Fair use applies to all copyrighted material which means that students have to apply the four factors to images just as they would to audio or video. All the students were collecting their images off the internet, but no student every told me that they applied the four factors to the images. Each student should have looked at each image they selected in its original context on the website where it originally appeared. The student would then have to apply the four factors to the image on the website. The most important factor here is the amount of the material on the site. For instance, if a student was using an image off a website that had hundreds of images they would, most likely, be protected by fair use. However, if the website contained only one image that may not constitute fair use. Jamie was the only student that mentioned to me that he was searching for where his images originally appeared, but he mentioned this in regards to finding the citation information, not applying the four factors. As a result, the second issue that took prominence in this study, which I had never anticipated, is the confusion of fair use and documentation.
I began thinking about why the students might be confused in this area. Could it possibly be that it wasn’t addressed in class? How was it that they learned about fair use and copyright? Could instruction be the root of the problem? I interviewed the course instructor to examine the instruction the students received in the area of fair use and copyright law prior to composing their projects. The instructor explained that the students spent a fifty-minute class discussing Fair use and copyright law as well as the difference between it and plagiarism. She expressed to her students, “ fair use is different from plagiarism and that even if you cite your sources you could still be in violation of fair use”(anonymous). The instructor showed the class a YouTube video on YouTube entitled A Fairy Use Tale which takes Disney movie clips and creates a fair use movie about fair use and copyright law. She said, “The class then analyzed it using the four factors of fair use checklist that is located on the BSU copyright office website”(anonymous). The instructor also told me that the class then looked at some previous student example compositions and analyzed them using the four factors check list. She explained to her students that, for example, a student that uses three minutes of a four minute song in their composition and cites it in their works cited page is not abiding by fair use. It was clear during this interview that the instructor had thoroughly explained and discussed fair use and copyright with her students using written, verbal, and visual methods in order to connect with students of all learning types in the classroom.
During the interview I asked the instructor, based on her experience with this group of students, if she felt students were confused by fair use and copyright law and, if so, what they were most confused about. She immediately responded that her students were confusing fair use with plagiarism and documentation despite the focus on this during class discussion. “Students that have met with me in conferences have said, when I ask about fair use, that they have ‘documented their sources’ so they are okay when it comes to fair use,” she explained (anonymous). Based on the interviews I conducted and my own analysis I would agree with the instructor here. Six of the seven students told me that they were not worried about fair use because they had made works cited pages.
I also asked the instructor how else she saw the students’ work being affected by fair use. She alluded to the students being hindered creatively. The instructor told me that in some cases students were forced to replace one part of a composition with something else that wasn’t as rhetorically strong to abide by fair use. She said, “for example, one song that works well with another song clip” (anonymous). The instructor explained that fair use results in a lot of self-editing by her students. I also saw these things reflected in the students I interviewed. There were students that were force to use different images or audio tracks, and even one student who changed their project completely to avoid fair use issues concerning audio and video clips.
I examined each of the seven final projects the students in this study composed. In the end there were three Glogster digital collages, three movies, and one Powerpoint slide show. Kate, who told me in her first interview that she was composing a movie, made a slide show instead. Examining whether any of these projects actually violates fair use can be a daunting task; one which instructors in a regular course setting would not have time to figure out. Some things are more obvious: a long song clip being used or a large portion of a video clip. The thing that is hard to decide is if the images abide by fair use. This is because students have gathered images from the internet and an instructor would have to locate each original website for every image and then apply the four factors themselves. The trap the instructor then falls into here is having to use their own judgment to decide what constitutes fair use. There is no exact and clear cut answer for anyone here.
What I immediately noticed in the projects were creative constraints. This most notably was present in the audio tracks of the movies. Two of the three movies had audio tracks that were pieced together without a clean fading in or out to make the music smooth. Also, a particular song would fit perfectly but not be able to be used throughout due to fair use. For example, one movie used a clip from the song “Waiting on the World to Change” by John Mayer during their movie about pollutants on the planet and what people need to be doing to help. The songs lyrics fit well with the student’s illustrations to argue the message to the audience however, due to fair use, the student was only able to use a small portion of that song and, as a viewer, I got the sense the composition would have been stronger if the song was used throughout the entire piece.
Another obvious issue was a possible violation that occurred in a Glogster collage where a student embedded Youtube videos into her project. This was Michelle’s collage and, as stated earlier, she had told me in her interview because she was citing the video clips fair use was not an issue. In one of her collages about the USA, Michelle embedded a commercial by T. Boone Pickens that she found on YouTube. The commercial is in the collage in its entirety. In a second collage about China, Michelle embedded a CNN news clip in its entirety that she also found on Youtube. In both of these cases the material works well to support the argument being presented in each collage, but, has fair use been violated? Both of these clips are used in the composition in its entirety with out being clipped down in anyway, but are the students using the videos or reproducing it? This is very much a gray area. These are new compositions in which the videos are being used as part of a larger composition and, again, in their original length, but they were accessed from a website (YouTube) where videos are posted to share with other users. Is it reasonable to say that fair use has been violated in this case? I do not think that is a question that can be answered based on analysis of fair use law. The flexibility of the law and lack of specificity leaves many gray areas in which composers must make educated decisions of their own.
One final issue that came up with each project was documentation of sources. Each of the students handed in a works cited page separately from their project. The students using Glogster had no choice but to do so because the program is not designed to incorporate the citing of sources. Each of these collages is published online and available to the public. Since there is no documentation of where each piece of copyrighted material came from with the collage, does that mean the student violated fair use? While documentation and fair use are two different things, as this paper has been pointing out, it is still a requirement of fair use to document intellectual property that is not the author's own. Once again, documenting sources does not automatically mean that a student will be abiding by fair use, but it is the students responsibility to cite all sources that are not their own.