Fair use of images in scholarly publishing

Fair use of images in scholarly publishing is an important issue to put on the front burner.  As Patricia Aufderheide and her colleagues at American University’s Center for Social Media remind us, confusion about copyright and fair use creates a culture of fear. As a consequence, many publishers require copyright permissions for the use of any and all images in scholarly articles and authors likewise avoid using images.

I recently encountered this issue for an article I was writing.  I wanted to use some images I found in various places on the web to illustrate network analysis techniques. I considered these images to be necessary to make my argument. I reasoned that as academics, we need to be able to use whatever evidence is necessary to support our points. We have long accepted the idea that written materials can be quoted, as long as we cite the source and follow some other guidelines. In theory, we should be able to use images in similar ways, but this has remained a challenge.

Depending on the laws of the country in which one is publishing, the use of images/photos in academic works might fall under the principle “Fair Dealings” or “Fair Use.” in very basic terms (and referring to the specific U.S. concept), this means that if my purpose is to comment on, parody, or critique copyrighted material, and the use would be limited and transformative, I do not need to seek permission from the copyright owner. Fair use is a defense against claims of copyright infringement. (There are good overviews of the concept online–I use Stanford University and Columbia University copyright sites)

The International Communication Association recently published a code of best practices for fair use in scholarly research in communication. This best practice document is not a legal safeguard, but outlines some excellent considerations. It is the most comprehensive document available (to my knowledge) on the use of media in scholarly work.

Here are the key points from that document I found helpful in determining that I was using the images fairly. They go further than any other specifications for fair use, but again, they’re based on the U.S. principle of fair use, so these points may not apply in other countries.

1) Previously, it has been assumed that even if use is fair in the classroom, that doesn’t mean it’s fair for scholarly publications. The ICA guidelines contest this idea, noting that fair use is not medium specific. In communication scholarship, fair use principles extend to published works, not just education in the classroom.

“If a use is fair in the course of scholarship, then it is fair in the publication and distribution of that scholarship by any means, including publishing and media distribution, and in the archiving of that scholarship.”

2) Fair use applies to the use of images as much as the use of text, despite common misunderstandings to the contrary. This is an important adjustment to the pre-digital era assumption that multimedia communication forms should be treated differently than textual forms of quoting.

Fair use is in wide and vigorous use today in many professional communities. For example, historians regularly quote both other historians’ writings and primary textual sources; filmmakers and visual artists use, reinterpret, and critique copyrighted material; scholars illustrate cultural commentary with textual, visual, and musical examples. Equally important is the example of commercial news media. Fair use is healthy and vigorous in daily broadcast television news, where references to popular films, classic TV programs, archival images, and popular songs are both prevalent and routinely unlicensed.

These are distinctive and important specifications, helpful in the continuing struggle to extend our interpretation of fair use. We have to begin making similar claims in other venues. Eventually, perhaps, it will become sensible to use the same logic for quoting audio/visual material or quoting written words.

Based on these arguments from the ICA committee on fair use, and my further study of Fair Use principles, I am confident that if I were publishing in a U.S. outlet, I could make a solid argument for using the images without seeking permission. My use was clearly illustrative, which could be considered transformative, as articulated by the ICA guidelines:

Generally speaking, [quoting copyrighted material for illustration] transform[s] the material reproduced by putting it in an entirely new context; thus, a music video clip used to illustrate trends in editing technique or attitudes about race and gender is being employed for a purpose entirely distinct from that of the original, and is typically directed to an entirely distinct audience from that for which it originally was intended.  This is true even in situations where the media object in question is not subjected to specific analysis, criticism, or commentary.

Even so, the area is gray and likely to remain so for many years. As I said, some publishers regularly reproduce graphics under the principle of fair use, while others refuse any use of graphics without copyright license.

At the end of the day, because I was publishing in Denmark, my research and reasoning didn’t apply. Turns out Danish law does not recognize fair use, so copyright permission must be approved in writing for any image I might want to use. This rule applies regardless of where the images come from. So I cut all the images from the article.

Excerpts from: ICA (2010). Code of Best Practices in Fair Use for Scholarly Research in Communication. Available at: http://centerforsocialmedia.org/fair-use/related-materials/codes/code-best-practices-fair-use-scholarly-research-communication.