Tag Archives: Workshops

“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.

Introduction to Archival Research

“Archives are the records created by people and organizations as they lived and worked. Collections can range in size from a single letter or diary to thousands of boxes of institutional records. They can contain drafts of literary works, financial records, meeting minutes, reports, memorabilia, as well as sound recordings, videos, film, databases, and software.” – NYPL

The Introduction to Archival Research Workshop was conducted by Donna Davey, adjunct reference librarian at GC. As someone new to archival research, it was interesting to learn the various methods and websites for archives, relevant to our recent readings on “History and the Archive”.

There is a wealth of information at GC Library’s Archival Research Guides. Donna focused on the “Catalogs & Databases” section of this page. As an example, we walked through how we might search the Civil Rights Movement in the U.S. 1950-60s:

  • WordCat: We used the advanced search feature for “civil rights movement”. On the results page, you can refine the results to only show “archival material” or a particular author. Clicking on an item gives you a detailed record. From here, you can click “Finding Aid”. This particular collection of Brotherhood of Sleeping Car Porters records, 1920-1968 is found in the Library of Congress. The Finding Aid provides an overview, bio/organizational/historical notes, scope and contents of the boxes, types of materials, arrangement, copyright uses, and much more. Most finding aids follow this format.
  • ArchiveGrid: We did the same search using ArchiveGrid. Their results page has a useful “Summary” view that categorizes the results by “Places”, “Topics”, “People”, “Archives” in a neat grid.

An important takeaway from this workshop is to always talk to a librarian about your project or before visiting a repository. They are extremely knowledgeable about the resources available. Since CUNY libraries are closed, they have online services, including a 24/7 chat. Lastly, the workshop emphasized that research is not linear, it is circular – you will always find new people and ideas to research so you may feel like you’re moving in a circle instead of a straight line.

Zotero Workshop

Zotero has been suggested as a tool and resource in the orientation meeting for the MA in Digital Humanities, as well as being mentioned in passing in class and in workshops. But my initial, limited understanding of it was as a tool for creating reference lists and managing citations, and that seemed like something that would be useful at some point in a somewhat distant future, so I put it in the back of my mind.

When I saw last week that the Mina Rees Library was doing a Zotero introductory workshop during my lunch hour, I thought, why not? And I’m so glad I did. Jill Cirasella, associate librarian for scholarly communication and digital scholarship, led the workshop, and you could tell right from the start that Zotero is a tool she is passionate about using and helping others to use as well. She took a few moments to ask all of the participants what programs we were in and our research interests to tailor her introduction workshop for each of us.

For me, she said it was great to start using Zotero now, early in the master’s program, so that I could start building my own personal library for future referencing. Articles I add to my Zotero account now could be useful for research several years later, and beyond. Which, yes, of course. How did I not think of that? Future references lists don’t appear out of thin air; they are the result of prior and present research.

Zotero is a free, open access tool used to gather and organize research. Through Zotero, you can create a personalized library from which you can easily cite articles and generate reference lists in papers. Most of the main referencing styles (e.g., APA, Chicago, MLA) are stored as templates, and you can easily toggle between different styles if you are submitting articles for different purposes with different styling preferences.

Essentially Zotero exists in three parts that are all in communication with each other: a website with cloud storage, a desktop application with word processor plugin, and a search engine extension. Once you create your account online and download the appropriate applications and plugins for your setup, most of your work with Zotero will likely happen through your search engine extension and your desktop application and word processing plugin. Jill strongly suggested we set up the Zotero application to automatically sync to the website, where personal libraries are almost instantly backed up to cloud storage, both as a failsafe in case something happens and also so that you can work on your library from anywhere. Zotero saves the content you are interested in remembering, including all of the metadata, links, and associated files (e.g., PDFs). Zotero is free to use, but the amount of cloud data available for free is limited, so Jill suggested not including associated files in your automatic syncs as this could quickly use up all of your free storage.

The thing that has me most excited for Zotero is the ability to create group libraries. In these blog posts and in our class discussions, people have been bringing up new materials to check out. I think a class library in Zotero could be a great way for us to put all of those sources into one place for all of us to easily access. What does everyone else think about using this as a group tool for class?

For anyone interested, I highly recommend attending a future Zotero introduction workshop. The next one on the library workshop calendar is on September 23 from 2:00 to 3:00PM. The library has also written up a guide on how to use Zotero.

Learning the Basics of Python with GCDI

Last Thursday, 9/10 I attended the Intro to Python workshop hosted by the GCDI, and led by Rafa, a Digital Fellow, PhD student, and organizer of the Python Users’ Group at the Graduate Center. Before the event, I received a few emails with instructions on how to install the software we’d be using in the workshop. It seemed a little intimidating, but Rafa provided detailed instructions and offered to help troubleshoot leading up to the event. And if anyone wasn’t successful with their installations, we were recommended, repl.it, to follow along.

Getting started in repl.it

With the Python green light, ‘>>>’, up on our Terminals, we began experimenting. We started practicing with simple math problems, then learned how to assign variables to create the iconic greeting, “hello world.” Generally, if you give the terminal instructions, it will respond immediately. We did a lot of trial and error, learning that we use the text editor to write the file but the computer runs it.

Why learn Python? It’s a general purpose language, meaning you can do pretty much anything with it: text/data analysis, create a website or video game, etc. Python is also incredibly popular, and coding is very social. With Python’s clean and simple code, it’s easy for developers to understand each other. Its users can’t really go too rogue because they’re forced to write in the standard language. Thanks to its popularity, there are countless tutorials and videos to learn from.

I didn’t have any background in Python, so this workshop was the perfect place to start. Rafa said “Learning Python is a journey.” I’m excited to dig into the language more, and to understand how I might want to use it in future projects. I plan to continue learning via YouTube and attending the GC’s Python User Group. Be sure ake a look at the GCDI’s upcoming calendar of virtual events: https://gcdi.commons.gc.cuny.edu/calendar/. Given the challenges of virtual learning, Rafa did an excellent job of teaching us the basics in a limited time.

2020 Tools for Digital Humanities Workshop

Tools for DH

Title Slide from the Presentation

On September 2nd, I attended an introductory workshop on some of the tools we use in the Digital Humanities (DH).  The workshop was held via Zoom, with thirteen participants, including the instructor, Filipa Calado, and Rafael Portela, their helper.  Filipa is a Graduate Center Digital Fellow and a Ph.D. candidate.  She has been running these introduction workshops for a few years, but this was the first time she had done it remotely.  The workshop was structured this way:

  • Filipa did a brief overview of DH, stressing the collaboration is very important because most projects involve teamwork.
  • We broke into small groups to introduce ourselves.
  • Then we returned to the full group, and Filipa discussed the five areas of Digital Humanities (DH), some of the tools used, covered contextualizing methodology, and offered links to additional readings. 
  • We ended with an online evaluation.  

We began with an overview of DH, including the use of the word “tool” in the computational sense and that DH brings these tools to its methodology.  Generally, DH brings digital methods of research to the humanities, with most projects either producing data or processing data to organize, clean, manipulate, or transform it. 

RESOURCE: Read Johanna Drucher’s article on “Humanities Approached to Graphical Display”, see http://www.digitalhumanities.org/dhq/vol/5/1/000091/000091.html

Where does data come from?

It can be audio/visual, web scraped (taken from other sites), text analysis (using programs), text encoded (tag it so the computer can read it), and geocoded (tagged to use with digital maps). 

How do we capture audio/visual data? 

Audio

When it comes to audio capture, begin by reading Kelsey Chatlosh’s blog post on their GCDI workshop on sound, see https://digitalfellows.commons.gc.cuny.edu/2017/10/10/kicking-off-the-gcdi-sound-series-a-workshop-on-sound/.  Generally, open-source tools are recommended because they are free and have great support around their user-community. 

Web Scraping

This is when we use software to gather specific content from static websites and social media platforms.  It is always wise to consider the terms of service on the sites you scrape. 

Text Analysis

This is when we use programming to extract the data we want from text.  Examples like Word-clouds were shown.

Text Encoding. 

This is when we use a mark-up language to encode a text for specific details.  We reviewed in some detail how XML was used in the Shelley-Godwin Archive, including some pages from Shelley’s Frankenstein, which showed her text and her husband’s edits; see http://shelleygodwinarchive.org/.

Geocoding/tagging

These software tools let us make our own maps.  QGIS is the most often used tool for this need.  

RESOURCE: GC has a very active mapping group on the Commons named GIS Mapping; join it if you are interested. 

We reviewed in some detail the work done by Mapping Arts NYC, which shows where cultural events are supported in the five boroughs over time using funding as its primary marker. 

Displaying and Analyzing Data. 

Some tools automatically create a display when given data.  For example, spreadsheets can be used to generate basic graphs and charts.  This implies an analysis.  What do you show, and what do you leave out? Have a critical awareness of the tools you use.     

Display / Analyze it: Visually

Some time was spent on the Quantifying Kissinger site, which did “A Computational Analysis of the National Security Archive’s Kissinger Collection Memcons and Telcons” and then presents this data in 3-D map form, see https://blog.quantifyingkissinger.com/

Display / Analyze it: Narratively

Archiving platforms like OMEKA, the CUNY Commons CMS, or Manifold were cited as platforms that store digital assets and can also be used to present them. 

RESOURCE:  The Graduate Center Digital Fellows (GCDI) team can help you figure out what tools to use for a project.  Visit their site and sign up for a consultation.   

RESOURCE:  Visit the GCDI calendar to learn about future events, see https://commons.gc.cuny.edu/groups/gc-events-and-workshops/events/

RESOURCE:  Here is the link to their slide presentation: https://bit.ly/toolsfordh

I learned a lot in a short time.  Please do read their slide presentation, as it has links to all the tools mentioned.