On How Not to Teach the Digital Humanities (see disclaimer)

(Disclaimer: I was looking back through my posts for this semester to make sure I had posted everything required, and I noticed that I never posted this. Thankfully, I still have the document saved to my computer, so I’m posting it here now. Utmost apologies.)

               Ryan Cordell’s How Not to Teach the Digital Humanities was one that caught my eye as soon as I saw the title. Upon actually reading it, I was pleased with its contemplative and analytical tone, but surprised at the sorts of criticism it contained, specifically regarding Cordell’s idea that pieces grappling with the question of “What is DH?” were commonplace enough to arguably form their own genre. This definitely got me thinking about my own personal application of the digital humanities: do I spend, or have I spent too much time questioning what it is? Should I be focusing less on defining or considering what the digital humanities is, and more on working within it?

               In reference to his teaching experiences in the digital humanities Cordell notes that he “[has] found ‘Texts, Maps, Networks: Digital Literary Studies’ a more productive and stimulating class than its immediate predecessor, ‘Doing Digital Humanities.’” At first, I took this to mean that he finds digital humanities courses with more specific focuses to be preferable to ones that have a more general, less defined theme. However, after reading through the article a second time, I took notice of Cordell’s discussion of interdisciplinarity.

               At a glance, the title “‘Texts, Maps, Networks: Digital Literary Studies’” suggests interdisciplinarity. The first half of the title defines three semi-related topics, and the second half serves to contextualize those topics within a potentially-separate topic. Cordell writes that “that interdisciplinarity is grounded in [his] training in textual studies, the history of the book, and critical editing.” As I continued further into the article during my second reading, I also realized that his points in the “But Don’t Panic” section of the article each lend themselves subtly to interdisciplinarity. At first, I thought this slightly contradicted his claims about the digital humanities “only [being] a revolutionary interdisciplinary movement if its various practitioners bring to it the methods of distinct disciplines and take insights from it back to those disciplines.” However, perhaps it’s meant to demonstrate that because the digital humanities lend themselves to interdisciplinarity in the first place to a degree, it’s not necessary and in fact maybe even excessive to actively pile more interdisciplinarity into it.

               Something that absolutely stuck with me from the piece is his mention of a student using Tumblr as a platform to analyze fandoms. Especially recently, Twitter seems to be dominating the web as the go-to social media site for scholarly projects. While Twitter absolutely has value for such projects, constraining oneself to a single social media platform is almost certainly limiting. While this is a relatively minor part of the piece, it was extremely refreshing – maybe this was only the case for me, though.

               I bring this up because it led me to explore the keyword “blogging” on Digital Pedagogy in the Humanities. I’ve explored a collection of words on the site for my other classes, but blogging never struck me as one that I’d want to examine. Out of the artifacts there, I was most drawn to Karen Cooper’s graduate-level class syllabus, “Social Media and Digital Collaborative Applications: Microblogging.”

               Upon closer examination, the syllabus was significantly removed from most syllabi I’ve looked at critically, although this is in part due to me having few opportunities to look at graduate-level syllabi. That aside though, Cooper’s choice to make “weekly microblogging, analysis, and implications” worth a very significant part of the grade was a very interesting one, at least to me, although it made sense considering the course at large. The fact that the course also “has no required [textbooks]” caught me off guard as well, but again, it’s not the most uncommon choice, especially since the syllabus implies online readings. The syllabus depicts the course as strongly distinct and incredibly focused. While my own distaste for platforms such as Snapchat would steer me away from running a course just like this one, I can’t help but want to try setting a syllabus for a course in the same vein as this one – focusing on the usage of one-to-three platforms and building curriculum and assignments around them.

drawing of a tree made of multicolored handprints and red cursive text saying "It takes a village"

It takes a village (to make a DH project)

When making the last edits to my final project, I realized how many people contributed to it. I contacted people from all corners of the Graduate Center, and they all have helped me with generosity and care. This post is a huge thank-you note to the wonderful community that supported me during this challenging semester.

To all my classmates: thank you for being you. I was excited to come to class to hear your opinions and learn from you. The discussions we had are invaluable, and I benefited from everyone’s feedback during my project presentation.

To Prof. Gold: thank you for creating a safe, supportive space that allowed everyone to contribute to the class in their own way. I really appreciated the way you conducted the lessons and constantly asked us to express our opinions about the class and its contents.

Micki Kaufman has been a shining light through this pandemic. Micki was always ready to give me guidance and practical advice about my academic life and my future projects. I’ve said it many times before, but if you have any questions or doubts, ask Micki!

I consulted with Stefano Morello and the DARC for technical details about archiving and had a wonderful conversation on how to develop trust when creating a community archive. It was to great to bounce ideas off of them: it gave me renewed energy to develop my project next semester.

I had a great session with Daniel Hengel of the Writing Center, who helped me make my Abstract section clearer and more understandable. Without him, there would still be crazy long sentences that make sense only in my bilingual mind.

Stephen Klein at the Mina Rees Library gave me precious advice about preserving digital projects…and talked me out of using Flask in my digital archive. It’s always good to have a reality check when writing a project!

Most of you don’t know this, but my parents in Italy got Covid in November, and my dad ended up in the hospital. They have since recovered and they’re fine, but I wanted to share this with you to express my gratitude for the beautiful atmosphere that everyone created in class. Coming to class and working on this project was a great way to feel present and connected to a wider community when things were really chaotic. I thought you all should know how much you contributed to make my life better during a challenging time.

Happy Holidays. Stay warm and safe, and I hope to see many of you in class next semester!

QGIS Workshop

Earlier this semester, just after we finished our mapping projects, I attended a workshop on QGIS run by Professor Olivia Ildefonso. Before the workshop, I was in the mindset of having just used QGIS to complete my first project. While it was a small project and perhaps rather “selfish” compared to some of the other mapping projects I took a look at for inspiration, I was very proud of myself, and looking forward to learning to do more with QGIS.

I came equipped with a collection of questions about the aspects of QGIS I found difficult to deal with while working on my projects, specifically dealing with adding types of layers and keeping layers organized within the program. Ildefonso not only answered my questions and cleared up confusion I had about how vector layers functioned, but also informed us about two very key aspects of the program that I had no idea about – the robustness of layer attributes (that is, what one can do with a layer by adjusting its attributes) and using QGIS to isolate specific regions in map data. If I had known about the latter, I would have had significantly less trouble during the project. I also learned that when trying to make a legend, QGIS takes variables and variable names directly from the map exactly as they’re recorded, meaning that to change variable names, one has to change them on the actual map. This answered my dilemma about designing legends with the software.

Perhaps the most interesting piece of information I learned during the workshop was that projects of non-Earth planets exist and are apparently available. I haven’t gotten around to experimenting with them yet, but at some point after the workshop I came across a map projection for the surface of the planet Mars. To be sure, I have something of a pipe dream about someday reaching a point where I’m proficient with QGIS or similar software to the degree that I can create the map of a fictional world and then plot data on it. I know how silly this may seem, but in all seriousness, mapping data on a fantasy map could be an interesting creative exercise, and it could also be good for creating visual aids.

I asked Ildefonso about her stance on combining software while working with data mapping, and she gave an answer I didn’t entirely expect. She asserted that combining software, if doable, is entirely reasonable: however, one of her professors colloquially described using image editing software to touch up or create graphics a product made with data software as a form of “cheating.” In the end though, she argued that “whatever gets the job done is what [one] should do.”

Towards the end of the discussion, Ildefonso discussed plugins she recommended. She praised Michael Minn’s MMQGIS collection of Python plugins for the amount of valuable content and versatility it adds to QGIS. MMQGIS allows for much more intricate manipulation of vector map layers. I tested it for a little for myself and I have to say I’m impressed with its capabilities. If I ever do another project with QGIS, I’ll probably make use of the collection.

Workshop on Intro to R-Studio

Earlier this semester I wanted to attend the intro to R and R-studio workshop but had to unfortunately miss it cause of a conflicting schedule, luckily the entire session was recorded and uploaded to Vimeo to let anyone access the workshop. The intro to R-studio was led by Connor French, a GCDI fellow, and made sure everyone knew what the program is used for. I took a math lab class as an undergrad and I have dabbled in R-studio before. But since its been three years since I have taken the class, my R skills have gradually diminished, so I was looking forward to refreshing my programing skills. I have only ever used R as a powerful calculator and a statistical analysis tool, but Connor mentioned that R can be used as a powerful data visualizer as well. On top of that it can handle mapping using Leaflet ,too, another feature I never knew R had in its belt.

Connor took time in the beginning of the seminar letting the attendees know how to get in touch with the GCDI fellows and what tools are at their disposal if they were to run into any issues, something that I need to keep reminding myself. Connor explained R, the base program, as an engine and R-studio as the dashboard in a car, an analogy that is well suited for the two programs since R-studio is where most of the work is done. I am sure at this point the people attending the workshop were feeling a bit overwhelmed with the information they have been given but Connor let them know that learning a new program language is always daunting  but not to fret since the only way to refine your skills is with practice and completing personal projects.  

At this point he dove into what made R and R-Studio the powerful computational program it is by describing all the neat and concise features it had, starting off with the “packages” which allows users to install and keep a tidy set of functions. Connor best described them as an app you would use on a phone to let the user do any set of analysis with ease. He then gave an example of what you can visualize and showed off just how much R-Studio can get done.

We then started to get our feet wet with a data set on penguins and Connor broke down what each line of code did to our data. Little by little we were manipulating our work to get down to a subset of penguins to see their flipper length, body mass, and sex. It was at this point that Connor showed us the visualization aspect of R-Studio and made a colorful chart with flipper length on the x-axis, body mass on the y-axis and it being color-coordinated by their sex.

Towards the end of the workshop Connor gives the audience a handful of resources that they can follow and communities they can join to refine their R-Studio skills. The video in its entirety can be found here. The github page with the code and examples he uses are here. And if you would like to join RUG, R User’s Group, you can click here.

A Digital Pedagogy of Play?

My thinking on the readings from the week on Digital Pedagogy is generally scattered, but seems to boil down to what the limits of the academy are, and how the academy as a site of knowledge production has proven itself to be inextricable from other normative institutions. Without getting into the history of the academy and the university in this post, a question I have is: How are the ways in which we think and imagine within the academic classroom subtended by the academy’s relationship to normative power structures (namely, the state, capital, corporations, etc.)? As such, how does this pose a problem to the field of Digital Humanities and its subfields, such as postcolonial DH?

One of the ways these questions came to mind is from reading Lizabeth Paravisini-Gebert’s “Review of Puerto Rico Syllabus: Essential Tools for Critical Thinking about the Puerto Rican Debt Crisis”: While Paravisini-Gebert’s analysis of the syllabus’ content is important, I’m interested in the ways she went about critiquing the medium of the syllabus—specifically, its design. For example, she notes the following:

“The landing page, where the viewer now scrolls down to access the “About,” “Goals,” and “Project Leaders” sections, in addition to a lengthy video titled Exploring the Puerto Rico Syllabus Project, could benefit from being “nested” horizontally below a footer image in order to keep navigation functionality simple. As it stands now, there is too much crucial information about the project “beneath the fold.” A comparison of the site to the other public syllabi sites highlighted on the “About” page shows the number of missed opportunities at the design level…

Given the wealth of visual materials associated with the themes of debt, development, migration, and natural disasters in Puerto Rico (which include the works of artists responding to the 2017 hurricanes), their incorporation into the site would both contribute to its appeal to readers and provide a rich archive that could be easily incorporated into the syllabus itself—not as mere points of visual interest but as a fundamental contribution to the usefulness of the site.” (Paravisini-Gebert)

As someone who works as a product designer at a tech company, I find these critiques of the site’s design at the level of “functionality,” “simplicity,” and “usefulness” eerily similar to terms used within “design thinking” and “human-centered design” practices within the tech industry, without an interrogation of the fact that the desire for functionality, simplicity, and usefulness are leveraged not necessarily for the sake of accessibility, but for the purpose of making consumption and the accruing of profit easier and thus more productive. I’m interested in how the ways in which we desire technology to be designed and interact is subtended by the tech capitalism, and what that means for “the spirit of making” within the Digital Humanities. Because indeed, the calls for “creativity and innovation, critical thinking and problem solving, communication and collaboration” (Risam, 92) are also very similar to those of the 1960s cyber-counterculture that led to the formation of the tech industry as we know it. It would be wise of us, then, to be critical in interrogating not just how normative power structures subtend out imagination of what technology can look and feel like, but also how calls to imagine and create (and, I would argue, “care”) are grounded in an optimism that can be easily co-opted by the very structures we are seeking to critique.

This is where I think play can play an important role in digital pedagogy. Going back to interaction design: To counter the capitalist desire for productivity and ease of use, what would it look like to create an interface that is intentionally hard to use? Or perhaps, an interface that’s intentionally slow (see: Katherine Behar)? Or even, one that is nearly unusable? As such, how can we use play to reveal and resist the contradictions that lie at the heart of normative and violent structure? I think these are questions that could be useful, especially in a postcolonial digital pedagogy: For if we’re looking to critique how normative (white) structures have contributed to “constructing a world that privileges the stories, voices, and values of the Global North and how digital cultures in the twenty-first century reproduce these practices” then its just as important to consider how are capacities to create and imagine are limited by this very construction. Intentional play, I think, is a mode from which we can take a step back, and start to question what and how we’re making, as well as think about what we’re up against. This sort of focus, to me, seems necessary in a digital pedagogy.

Workshop Entry on Inclusive Design

Earlier this semester, I attended ‘Inclusive Design and Accessible Exhibits, a presentation by Sina Bahram‘, which was a virtual webinar-workshop by data specialist, technologist, and entrepreneur, Sina Bahram. Bahram’s work appears in multimedia-accessibility discourses across North America, and was recognized on the federal level during the Obama administration for his contributions to accessibility and the STEM field. 

His webinar-workshop was an important highlight of my virtual semester as it focused on Bahram’s interpretation of Inclusive Design (ID), a methodology described (in this context) as a response to the limits of accessibility in technological design and multimedia services. To segue into his presentation on the preference of ID, Bahram provided commentary about the other commonly consulted Medical Model, which approaches accessibility from the standpoint of an individual’s disability and not the environmental factors that limit access for differently-abled individuals. 

Of the many items that were of value in his multi-step presentation on ID (giving control, appreciating context, and tolerance for error), the poetics of his Coyote Project – a partnership with the Museum of Contemporary Art (Chicago) and Prime Access Consulting – was extremely significant. The Coyote Project is concerned with increasing accessibility in the museum context through robust description software, which include audio aids. 

Bahram demoed the software for our audience – at the 42:45 mark of the presentation (viewable here) – using a stunning Kerry James Marshall painting. The Coyote Project collected cultural data across intersections of race, gender, and museum curation to produce a holistic and dimensional audio-description for differently-abled individuals. 

It was an opportunity to hear interdisciplinarity at work and placed into practice outside of a theoretical frame in a technological context. I immediately thought of bell hooks’ Oppositional Gaze and the extent to which the Coyote Project can be used as a case study for it as it concerns the reproduction and subversion of power through spectatorship informed by accessibility discourse. I could identify multiple gazes in the demo, which was sensorial in my experience and I’m curious about the ontological data that may emerge from similar approaches to ID in tech.

Bahram’s presentation was made possible by the Advocacy & Continuing Education sub-group of the DLF Digital Accessibility Working Group at CUNY. Bahram’s transcript is available upon request to this group. His presentation slides can be found here, via Dropbox.

A Brief Reflection on Grants and Grant Writing

As the semester’s progressed and I learned more and more about the conclusion of this class, I’ve grown progressively more and more intrigued, yet also more and more intimidated by the prospect of writing grants. This is in part due to people in my life telling me that I should at least giving going into grant writing a chance. In part because I’ve been recommended grant-writing as a career choice, it’s furthered both my curiosity and anxiety: on one hand, this final project could be a means to significantly further one’s career, but it’s also all the more daunting in all its formalism. I think I’m not alone when I say that this is my first time consciously doing anything even related to grant writing, outside of, for instance, more general, casual project proposals.

Tips on Applying for a Preservation & Access Award on by the Division of Preservation and Access Staff on National Endowment for the Humanities website was both informative and soothing. Its “Get a Little Help From Your Friends” section really emphasizes the fact that even if one seeks funding for a solo project, one should not be afraid to reach out and work with the connections one has. Additionally, as I’ve begun to set up my own final project, the article as a whole has served as a quick and easy general reference. That is, the article succinctly lays out key information in a way that lets it be used as a sort of a (rather general) checklist for what one should aim to include in one’s grant, as well as a guideline for making sure one is generally on track.

While Tips on Applying for a Preservation & Access Award, at least for me, functions best when I have it in a browser window in the background while I work on my proposal, Sheila Brennan’s Planning Your Next DHAG series is much more heavy-duty because of its multi-part nature, but in turn, it’s much more detailed and informative. I have to admit that I’ve read through the whole of it a few times out of anxious compulsion. I like to believe this has helped me in some manner.

The part of Brennan’s article I keep open in the tab next to the one I have Tips on Applying for a Preservation & Access Award in is her list of “six evaluation criteria,” found in Idea, Audience, Innovation, Context. When I’m reading back through what I already have written, I’ve found it very helpful to try to connect each paragraph I’ve written back to one of Brennan’s criteria. When I find a paragraph that I can’t connect back, I generally attempt to figure out if that’s for a reason or not, and whether the paragraph can stand on its own, or if it’s poorly-conceived, too filler-ridden or off-topic.

iMovie Workshop: How to be bold by learning the basics!

I attended the Publics Lab’s iMovie workshop, led by Mike Mena. I’ve never used iMovie or even owned a Mac, and I was nervous about how much I’d be able to follow or even apply after. However, Mike’s pedagogical approach and extensive experience giving this type of workshop for a wide range of audiences made phenomenal workshop. And not because I left feeling like an iMovie magician, but because I felt I had concrete skills I could see myself using, in addition to feeling less intimidated. Specifically, Mike did three critical things that made a simple workshop simply perfect: (1) he created an inviting environment; (2) he talked about strategy and prep work that would maximize our experience with the software; and (3) he set appropriate expectations and stuck to those guidelines throughout the seminar.

First, Mike started the seminar by dispelling myths people have about themselves being “bad with technology” and discussed how small, everyday interactions with technology intimidate and frustrate people, dissuading them from trying new things. He used the example of entering a password on a tiny phone and acknowledge that can be difficult because of design limitations—not the user’s abilities. This made me think about the readings from this semester that cautioned DH practitioners from making assumptions about user’s experiences and history of accessibility. It also made me think of the self-fulfilling prophecy I was discussing with my students in Intro to Sociology, and how stereotypes damage or even rob marginalized folks from accessing and innovating DH and tech. It inspired me to develop intentional moments to acknowledge and deconstruct these barriers in my future teaching opportunities and DH projects.

Second, he began the workshop by talking about the organizational steps one take’s before opening iMovie that make editing and experimenting less frustrating. Looking back on my experiences with QGIS, almost all of my frustrations can be traced back to ignorance or lack of intentionality about all the different files I would need. He also talked about the different spaces that held the files you’ve (maybe intentionally) organized would show up and where old files the software holds onto would reside. One of the things that became clear to me, as a non-Mac-user, that there were sometimes multiple shortcuts for certain functions, even when the direct method was easily accessible or straightforward. Having an expert advise new users how to navigate these decisions based on extensive experience, I believe, prevented me from going in circles and figuring out what worked through trial and error.

Finally, Mike set appropriate expectations for what the one-hour workshop would cover, kept his demonstrations focused on the basics, and didn’t distract the audience with interesting or complicated features. I think a lot of experts struggle to stay focused on the mundane aspects of their field, or to avoid going off on interesting tangents that go over their audience’s heads—I know I’m guilty of this when I teach. I was also worried because I had to leave the workshop 30 mins early, when the Q&A portion would take place; however, the workshop was straightforward and well moderated in the chat, so minor clarification questions were answered along the way but other Publics Lab staff, which created space for the more advance users to ask questions during the Q&A.

This workshop made real the invitations from DH scholars we’ve read throughout the semester who are looking to democratize DH as a field and as a praxis. I feel confident I could return to my notes over the next several months to successfully import media, identify and correct volume issues, and trim the video files for tight narratives and smooth transitions.

Screenshot of the opening page of the digital map "Living Nation, Living Words - A map of first people poetry". In the background, an ancient-looking map of the first Nations. In the foreground, the Title, contained in a darker-colored box

Too good not to share!!! Joy Harjo’s Map of First People Poetry

I just saw the news on the Unladylike newsletter: Joy Harjo was appointed to the 3rd term as a U.S. Poet Laureate! She is an amazing poet from the Muscogee Nation, and the first Native American to hold the role of Poet Laureate.

A photo of US Poet Laureate Joy Harjo. She is sitting against a wall and wrapping her right arm around her legs. She has long, brown hair and is wearing red lipstick. She is wearing a red shirt, blue jeans, a bracelet, and her right hand is entirely decorated with Native American tattoos.
A photo of Joy Harjo from the Poetry Foundation

I discovered her poetry this year thanks to the Bklyn Bookmatch Service of the Brooklyn Public Library – try it, librarians are awesome! – and it was a great source of comfort and wonder during these rough times.

But the reason I’m writing is because Joy Harjo just launched a beautiful DH project: Living Nations, Living Words – A Map of First Peoples Poetry, an interactive map of Native Nations poets and poems. There is also a collection of audio recordings of contemporary Native American poets reading and discussing poems. This projects connects to so many of our readings, that I couldn’t wait to share it with you all. Enjoy!

I wish you all a happy, safe Thanksgiving with your family – or your chosen family. Also, here’s a link to Joy Harjo’s poem An American Sunrise. November is National American Indian Heritage Month, so let’s celebrate it with poetry (and DH). 🙂

“Fair Use for Non-Fiction Authors” Workshop

Leibovitz v. Paramount Pictures Corp.

Parody versus the original

On Nopvember 18th, I attended a workshop designed to teach nonfiction writers about fair use as applied under United States copyright law.  The workshop was produced by the Mina Rees Library and was part of their Scholarly Communication Workshop Series.  You can learn more about the series here: https://historyprogram.commons.gc.cuny.edu/fall-2020-gc-library-scholarly-communication-workshop-series/.

The workshop was held via Zoom, with eight participants, including instructors Jill Cirasella and Roxanne Shirazi.  Jill is the head of the scholarly communications unit for the GC and often works with students to apply fair use to their work.  Roxanne is the GC’s dissertation research librarian, which means that she works with students when they are ready to publish their capstone projects and dissertations.

The workshop was structured this way:

  • We received a brief overview of fair use, including the basics.
  • Review of fair use in nonfiction work
  • Review of some fair use misconceptions
  • Suggestions on using content outside of fair use
  • Q & A

The workshop was also recorded via Zoom.  If you would like to see it, contact Jill or Roxanne for the link.

 Fair Use Basics

Under certain conditions, fair use is recognized by US copyright law.  Here is an official definition by way of the US Copyright Office:

“Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances.  Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use” (US Copyright Office).

The doctrine permits the use of copyrighted works without permission or payment to the copyright holder.  The theory behind the doctrine is that we, as a society, give people limited ownership rights to the content they create (e.g., writers and photographers and film-makers), and we give other people rights to discuss that content (e.g., like critics and scholars and reporters).  There is no rigid formula we can apply to determine if fair use fits a particular incident. Still, there are four factors the courts consider when a fair use case comes before them.

  • What was the purpose and the character of the use?
  • What was the nature of the work being copied?
  • How much of the work was copied?
  • Did the copying of the work affect the use of the original work in the marketplace?

When seeking to determine if a piece falls within the doctrine, the court may ask if the material’s unlicensed use transformed it, for example, by using the content for a different purpose (like a critic doing a review of a book) or giving it a different meaning (like a researcher using Google N-Gram to determine how certain words or phrases are used within their corpus of digitized texts).  In other words, the new use does not merely repeat the content for the same intended purpose as the original.  The court may also consider the nature of the copyrighted work and if the new use is to support an argument.

Fair Use in Nonfiction Works

When considering using another’s work, there are four guiding principles the nonfiction author should consider.  Each was discussed with examples of case-law provided.

Guiding Principle One: Critique

Fair use applies when the copyrighted material is used for criticism, commentary, or discussion of the work itself.  In this use case, the entire work may be reproduced within the new work, so it may be closely examined within context.  The ability to freely critique a work also protects society against intimidation.  However, the doctrine expects the amount copied will be limited to what is needed to make the analytical point. Furthermore, appropriate attribution should be given to the original author.

An example offered was Warren Publishing Company v. Spurlock.  In this civil case, an author created a biography of the artist Basil Gogos that included reproductions of Gogo’s artwork, commissioned for specific magazine covers owned by the plaintiff.  The publisher lost their case because the court found that the “defendant’s use of the artwork to illustrate a particular stage of Gogos’ career was transformative, considering [the] plaintiff had originally used the artwork for purposes related to the advertising and sale of magazines.”

Guiding Principle Two:  Proving a Point

Fair use can apply when the copyrighted material is being used to illustrate or prove an argument.  Here, the material is not reproduced for commentary but rather to establish a more significant point.  As ever, the amount copied should be reasonable, and it should not be purely decorative or inserted for entertainment.  In other words, do not reproduce something because you like it or simply want to make your content more attractive. Instead, create a clear connection between the material being copied and the point being made.

Here the example used was New Era Publications v. Carol Publishing Group.  In this case, an unfavorable biography of L. Ron Hubbard, the founder of the Church of Scientology, contained extensive quotes from Mr. Hubbard.  The plaintiff argued that because the excerpts had been used without their authorization, it was a copyright breach.  The court found that the biography, A Piece of Blue Sky, was fair in its use of the material because said use was designed “to educate the public about Hubbard, a public figure who sought public attention,” and [that it] used quotes to further that purpose rather than to unnecessarily appropriate Hubbard’s literary expression.

Guiding Principle Three:  Digital Databases

The court has found that digital databases developed to perform non-consumptive analysis (or non-expressive analysis) of copyrighted materials is permitted for both scholarly and reference purpose.  An example of non-consumptive analysis is when content is digitized, and the computer then does a textual analysis.  However, this data may not be re-employed in other ways, e.g., providing ordinary reading access.

In Authors Guild, Inc. v. Google Inc., the plaintiff sued when Google made unauthorized digital copies of millions of books and then made them available to search via its Google Books service.  The court found this was fair use because digitizing the material and making it public was transformative:

“Google’s making of a digital copy to provide a search function . . . augments public knowledge by making available information about [p]laintiffs’ books without providing the public with a substantial substitute for matter protected by the [p]laintiffs’ copyright interests in the original works or derivatives of them.”

Some Fair Use Misconceptions

  • A maker cannot use material if their request is refused or if they received permission, and then it was revoked. Even if you do not have permission, you can still rely on fair use if your expression of the material falls within the law.  In Wright v. Warner Books, Inc., the court found the defendant Margaret Walker was within the fair use doctrine when she quoted from selections of the poet Richard Wright’s unpublished journals and letters.  This, even though Wright’s widow had rejected Walker’s request to use the material.  The court found that the “analytic research” contained in [the] defendants’ work was transformative because it “added value” to the original works.
  • A maker cannot rely on fair use if they are using unpublished material. In 1992, Congress amended the copyright act to explicitly allow fair use of unpublished materials.  An example was Sundeman v. The Seajay Society, Inc.  Here a scholar wrote a critical review of an unpublished novel by Marjorie Kinnan Rawlings, following the author’s death.  “The court ruled in favor of defendant’s fair use defense, finding that the critical review was a scholarly appraisal of the work.  While the paper extensively quoted or paraphrased the novel, its underlying purpose was to comment and criticize the work”.
  • A maker cannot rely on fair use if they are using the entire copyrighted work. While the amount of the work copied is one of the factors considered, it is more important if there is a transformative purpose.  In Bill Graham Archives v. Dorling Kindersley Ltd., the author reproduced multiple Grateful Dead concert posters to show a time-line within their text.  In this case, the court found that the small size and low-quality of these reproductions did not hurt the actual posters’ marketability or underlying value.
  • A maker cannot rely on fair use if they are using highly creative copyrighted work. That factor is rarely decisive on its own.  In Blanch v. Koons, the artist created a collage painting that included a commercial photograph of a pair of high-fashion shoes.  “The court deemed the collage transformative because the defendant used the photograph as “raw material” in the furtherance of distinct creative or communicative objectives.”
  • A maker cannot rely on fair use if they are making commercial use of a copyrighted work. In Leibovitz v. Paramount Pictures Corp., the marketing arm of Paramount parodied the famous nude picture of a pregnant Demi Moore by superimposing Leslie Nielsen’s face onto the body of a naked pregnant woman posed similarly to the Annie Liebovitz original.  “Noting that a commercial use is not presumptively unfair, the court found that the parodic nature of the advertisement weighed in favor of a finding of fair use.”

Suggestions on Using Content Outside of Fair Use

How might we proceed if our use of copyrighted material is not intended to be fair?

  • Modify the intended use.
  • Ask the copyright holder for permission to use the content or for a paid license to use the work.
  • Use work disturbed under open licenses like Creative Commons.
  • Use works from the public domain.

Considerations Outside of Copyright

Sometimes there are contractual terms governing access to a work (e.g., archives, museums, specific databases, or websites) that can restrict your availability to apply fair use.  If you are using a source with these restrictions, you have bound yourself to that agreement by using that source.

Fair use does not protect against claims based on legal rights other than copyright (e.g., privacy, rights of publicity, trademark, or defamation).

Contracts can override the native rights that you may have had to fair use.

Screengrab with Link to Author Alliance

Visit the Author Alliance for more helpful resources

The Authors Alliance

The presentation was created by the Authors Alliance.  Their mission is to “advance the interests of authors who want to serve the public good by sharing their creations broadly. We create resources to help authors understand and enjoy their rights and promote policies that make knowledge and culture available and discoverable”.    You can find the presentation in its entirety at https://www.authorsalliance.org/resources/fair-use/.

Questions and Answers

Q: How can I be sure I can use something?

A: While a lawyer can help you determine the probability, in the end, you will only know if something is fair use if you are sued and a court decides it.  Now, publishers have policies about using content based on their internal risk assessment, restricting the amount of content, etc.  However, their corporate best practice is not a rubric designed by the court.  It is recommended that you use a fair use checklist to test your own thinking for your own research purposes.  Keep that with your research notes in case the validity of the use is ever questioned.   Here are two resources:

Q: Are teachers covered by the doctrine within the classroom?

A: Yes.  However, public presentations could be different, depending on the forum.  When possible, look for images that are public domain.

Q: What about personal photos of a subject, such as those found in archives?  Many biographies contain them, but they don’t always support an argument.

A: They often are included with permission, have been secured via a license, or were in the public domain.

Q: What about lifting passages with attribution but not within quotation marks?

A: Keep the quotations and show good faith with attribution within the text, as well as any footnotes.

Q: Are University Presses considered commercial presses?

A: They have different standings; some are commercial, and some are nonprofit.  The entity is not the issue. It is how the work itself is being used or being repurposed that falls within the doctrine.

Work Cited

Authors Alliance. “Resources.” Authors Alliance, 6 Aug. 2019, www.authorsalliance.org/resources/.

Authors Guild, Inc. v. Google Inc.  No. 13-4829-cv (2d Cir. Oct. 16, 2015).  United States Court of Appeals for the Second Circuit. US Copyright Officehttps://www.copyright.gov/fair-use/summaries/authorsguild-google-2dcir2015.pdf

Bill Graham Archives v. Dorling Kindersley Ltd.  448 F.3d 605 (2d Cir. 2006).  United States Court of Appeals for the Second Circuit. US Copyright Officehttps://www.copyright.gov/fair-use/summaries/billgraham-dorling-2dcir2006.pdf

Leibovitz v. Paramount Pictures Corp.  137 F.3d 109 (2d Cir. 1998).  United States Court of Appeals for the Second Circuit. US Copyright Office. https://www.copyright.gov/fair-use/summaries/leibovitz-paramount-2dcir1998.pdf

New Era Publ’ns Int’l, ApS v. Carol Publ’g Grp.  904 F.2d 152 (2d Cir. 1990).  United States Court of Appeals for the Second Circuit. US Copyright Officehttps://www.copyright.gov/fair-use/summaries/newera-carolpubl%E2%80%99g-2dcir1990.pdf

Sundeman v. The Seajay Soc’y, Inc.  142 F.3d 194 (4th Cir. 1998).  United States Court of Appeals for the Fourth Circuit. US Copyright Officehttps://www.copyright.gov/fair-use/summaries/sundeman-seajay-4thcir1998.pdf

Warren Publ’g Co. v. Spurlock.  645 F. Supp. 2d 402.  United States District Court, ED Pennsylvania. US Copyright Officehttps://www.copyright.gov/fair-use/summaries/warrenpubl%E2%80%99g-spurlock-edpa2009.pdf.

Wright v. Warner Books, Inc.  953 F.2d 731 (2d Cir. 1991).  United States Court of Appeals for the Second Circuit. US Copyright Officehttps://www.copyright.gov/fair-use/summaries/wright-warner-2dcir1991.pdf.

US Copyright Office. “More Information on Fair Use.” Copyright, US Copyright Office, www.copyright.gov/fair-use/more-info.html.