Copyright and Fair Use

This is an edited virtual roundtable discussion held online. Transcribed for the September 2010 GNSI newsletter column "Ripped From the List "- edited by Stephan DiCerbo, and now edited for online presentation.

Gail Guth emailed the list about a fellow who wanted to avoid the cost of repro rights on someone else’s images by tracing them and was concerned—with good reason—if he was infringing on copyrights. The thread brought out various takes on the issue, some of which you might find surprising. This thread also touches upon “fair use for educational purposes” and “government use and public domain.” – Stephen Di Cerbo

Gail Guth: I received the following two messages yesterday, and replied to the first one. It was something along the lines of: “It was good of you to ask, short answer, IMHO you are still violating copyright,” and I gave him some reasons why I thought it was in violation. But I then deferred to wiser heads on this issue and offered to pass along his inquiry for some comments. Since he took the trouble to inquire and didn’t just rip somebody else’s work off, I think that’s worth a good answer. His tracings are very close to the originals, but again I do not consider myself an expert on copyright. The best answer for him may be to direct him to websites that have a more thorough discussion of what is and what is not infringement.

The Question:
I am currently working on a PDF document to put on the internet (for free distribution), a tutorial on viruses. I began by using images from technical journals, but then I found out about CCC—they charge money to quote an apostrophe; can’t imagine what they’d charge for images.

Then I started replacing the copyrighted images with my own. My question is "if I trace an original illustration by hand, can I claim the tracing as my own, or is it still an infringement?"

I’ve attached a PDF showing some of my work; hoping it meets legal muster. I’ve tried researching the law, but can’t get a clear answer. Any advice you can give would be greatly appreciated.

Copyright and Fair Use Example

Fig. 1 - Art prepared for copyright infringement question. On left: cauliflower mosaic virus; in the center: tomato bushy stunt virus; on right right, m13 virus. Top drawings are original illustrations, bottom renditions are by the questioner.

(Gail responded as noted above)

Your answers are very helpful, even if it’s not what I was hoping to hear—somehow I hoped I’d found a way (tracings) around the whole copyright conundrum. Now it looks like I’m going to have to get even more creative.

The first 2 are tracings, but the 3rd is constructed from scratch using Adobe Illustrator. That one, I’d be really surprised if anyone could make a claim of infringement on that one, though the Illustrator objects were assembled directly over the original, and mirrors it strongly. As you say, there are only so many ways to depict a virus; they’re painfully simple life forms, sort of like mathematical formulae executed in protein. Illustrator might be my best hope for doing the rest of them. But I wanted to show it, to make it clear how close one can get to an original’s appearance, without being related to it.

CCC—the copyright clearance center, or as I call them, the kingdom of the beast. Unfortunately, nearly all inquiries for image permissions sent to the technical journals that I deal with go directly to them...and they don’t give permission for ANYTHING. Everything has a price, even a single paragraph (it says so directly on their website). They are responsible for the fact that college lectures have become crushingly boring in recent years; instructors are scared to death to put any sort of visual information in their lectures; can you imagine how lame it is to watch a PowerPoint demonstration that consists entirely of text—not a single image? This is interfering with education and scientific communication.

I guess I need a good 3d rendering program that will make constructing my own viral images from scratch easy. (Then I’ll put them in the public domain). I look forward to hearing more from your colleagues in the Guild.

The Conversation:

Robert Hole: My understanding is that tracing is effectively the same as a Photocopier or scanner as far as copyright is concerned. The warning of no reproduction “by mechanical or other means” should be a clue on that (tracing being “mechanical”).

The cost of the copier’s product has no bearing on whether it’s “Legal” or not. And to the publisher who paid for that artwork in order to resell it, it may actually be a worse insult. And the artist didn’t do it just for “glory” either, but to put food on the table.

Depending on the art in question, I’d suggest the gentleman either create his own original stuff or contact an artist. If he truly can’t afford to pay an artist a going rate, maybe he can contact his local high school or community college art department? They might have a student or two willing to work for pizza.

Jim Perkins: It’s gotten to the point where I do a Google Images search every few months to find new infringements of my work.

The person is creating derivative works, in which case the copyright still belongs to the original illustrator. He’s asking about Fair Use, i.e., whether he can legally use copyrighted material without permission. The law regarding Fair Use is intentionally vague. There’s a complex 4-step test to determine if a particular use is “fair,” but even it can be hard to interpret. According to a copyright attorney who spoke at an AMI meeting a few years back, “if a jury of your peers can recognize that your work was copied from someone else’s work, it’s infringement.

(The questioner says,) "I hoped I’d found a way (tracings) around the whole copyright conundrum." What “copyright conundrum”? In other words, he’s hoping to find a way to avoid paying other people for their hard work. Somebody worked hard to find a visual solution to a complex problem. He wants to rip off that solution with no compensation to its rightful owner. It reminds me of the dreaded “plumber conundrum.” I’d like a plumber to come to fix my toilet, but God forbid I have to pay him!

(The questioner says,) "The 'Illustrator' objects are assembled directly over the original." In what universe is that different from tracing by hand? How does that change the fact that it’s still a tracing? Bizarre. And “mirrors it strongly” is a nice way of saying that it’s a direct rip-off. The nature of an image is its appearance. If the “appearance” of one image is copied from another, it’s clearly related (and clearly constitutes infringement).

(Regarding concerns about the Copyright Clearance Center) I have some issues with the CCC, including the fact that they return no reprographic royalties to illustrators, even if the illustrator owns the copyright. But they are not the Evil Empire. They are simply collecting royalties on the commercial use of copyrighted works. The CCC (and other copyright watchdogs) are simply enforcing the legal rights of copyright owners. If college lectures have become boring, it’s because nobody bothers to budget for the expense of creating artwork for these lectures (the same goes for scholarly publications). If universities hired professional illustrators for this task, there would be a heck of a lot more jobs for scientific illustrators, and college faculty would have easy access to graphics for their lectures, publications, etc.

(Regarding making art and placing it in the public domain) If he wants to put his own images into the public domain, that’s his prerogative. But he shouldn’t assume that the rest of us want our work freely available on the internet.

Reading between the lines, it seems this person works in academia and needs artwork for his lectures. He probably earns a decent salary for his teaching, and part of his job description is to freely disseminate the results of his scholarly work. In essence, he is paid to make his intellectual property available free of charge. That’s fine for him. But many illustrators do not have salaried positions. They earn their living exclusively through the licensing of their artwork. An illustrator must retain tight control over his/her copyright, to ensure a continued market for that work. One of the biggest threats to the livelihood of professional illustrators is the widespread infringement of their work.

Stephen DiCerbo: In my not so humble opinion: Tracing is fairly blatant theft of intellectual property. The old lame “change it significantly” angle constitutes a derivative work, which is also protected, and something a lot of us make a living selling the rights to.

I am relatively sure that some of you who pose these questions already know in your heart of hearts what the answer is. If you want to use someone else’s work or copy it, or trace it, or significantly change it, whatever path you might choose without permission, it is copyright infringement. Even, or maybe, especially, reference or stock photos. You need to get permission, pay for rights, create your own original work, or you will be in violation of copyrights.

The only exception would be strictly educational purposes or some other purpose under the somewhat narrow definition of the fair use of copyrighted materials. Of course, there is the infamous “public domain...”

Hope this clarifies the conjecture a bit.

Rick Simonson: (In reference to boring powerpoint lectures for lack of available visual content) I thought that using images in PowerPoint lectures for college courses was fair use.

 Jim Perkins: Lots of people will give you very impassioned arguments about this issue, but very few people can actually cite the legal basis for their opinion.

As it turns out, Fair Use is extremely complicated and there is no simple test to determine if a use is fair. Fair Use was originally defined in Section 107 of the Copyright Act of 1976. The law was intentionally vague and has been made even more complex by a large body of case law over the past several decades. In addition, members of Congress have met with both educators and publishers in order to iron out some of the details of what constitutes Fair Use, particularly in an educational setting.

Much of this is summarized in Copyright Office Circular 21 “Reproductions of Copyrighted Works by Educators and Librarians”:

In particular, I suggest you look at “House Report: Statement of Intention as to Classroom Reproduction” on pages 5-7. This section describes a number of agreements that were made in a conference between the Authors League of America, the Association of American Publishers and the Ad Hoc Committee on Copyright Law Revision of the House of Representatives. This section clearly states that it’s OK for educators to copy or display copyrighted images without the permission of the copyright holder, BUT only if the use meets the tests of brevity and spontaneity. They go on to define spontaneity as follows:

i)The copying is at the instance and inspiration of the individual teacher and

ii) The inspiration and decision to use the work and the moment of its use for maximum teaching effectiveness, “are so close in time that it would be unreasonable to expect a timely reply to a request for permission.”

And furthermore:

“Copying shall not:

a. substitute for the purchase of books, publishers’ reprints or periodicals;

b. be directed by higher authority;

c. be repeated with respect to the same item by the same teacher from term to term.”

In other words, it’s OK to reproduce copyrighted works in a PowerPoint lecture ONLY if it is done at the last minute and would not be practical to obtain permission from the copyright owner. Once the PowerPoint has been created, you CAN NOT use it over and over again year after year (or term after term). The test of spontaneity no longer applies. There is plenty of time to obtain the necessary permissions prior to giving the same lecture the following year or semester.

This business about spontaneity is a fairly obscure part of the Fair Use law. But it has been upheld by case law. And many university lawyers are finally becoming aware of it and enforce it within their own institutions.

I attended a meeting of the American Association of Anatomists a couple years ago and two university lawyers spoke about this specific provision during a copyright panel discussion. These universities have created an online form that their faculty can use to determine if a particular use if Fair Use. They warn their faculty not to keep using the same PowerPoints over and over without obtaining permission to use graphs, illustrations, text, and other copyrighted materials.

Rick Simonson: I wasn’t aware of how the spontaneity test applied to lecture material. It seems like a logical way to do it. It’s more work for the instructor who doesn’t want to legally purchase images. There seems to be a lot of misunderstanding in academia about copyright and fair use. I was just searching for some info about this topic and came across this website: <>

The first statement in the FAQ’s says just the opposite. It states that copyrighted material can be used from semester to semester. It looks like this was written in 2003. I assume the spontaneity rule has been around longer than that.

Jim Perkins: That website contains some internal inconsistencies. For example, it states (erroneously) that: "You can use just about any copyrighted material in your classroom as many times as you want across semesters and years."

And yet elsewhere it says that: "Fair use is more likely if these actions are taken: Limit the time period of use (a semester or a year—the length of the course)"

And it says: "For repeated use by the same instructor in the same class, permission is required."

The first statement is wrong. The latter two are correct. It seems the person who wrote it doesn’t know the law very well.

Yes, there is quite a bit of confusion about copyright, particularly with regard to Fair Use. The confusion has gotten much worse since the advent of the Internet.

Prior to the Internet, it was much more difficult for educators to infringe copyrighted works. The most common violation was faculty making up their own course packets, consisting of photocopied articles and book chapters. Companies like Kinko’s facilitated this practice. I can remember as an undergraduate in the early 1980s lining up at Kinko’s to buy the course packs for my different classes. Then there was a big lawsuit against Kinko’s to regulate this practice. This led to the creation of the Copyright Clearance Center, which now acts as a clearinghouse for the collection and distribution of reprographic royalties.

Some faculty would also make slides from illustrations in books and magazines. This required having a decent camera and a bit of technical savvy, so faculty would often farm this out to service bureaus and campus copy centers. I suspect those places acted like gatekeepers, preventing widespread infringement of copyrighted works.

The Internet changed everything. Suddenly, an educator could write a lecture the night before class and fill up a PowerPoint presentation with nifty graphics downloaded off the web. I’m not sure if most faculty are truly ignorant of the law or simply turn a blind eye to it. As I said in an earlier post, most folks in academia are paid to freely disseminate their scholarly work. I think there’s some sort of resentment that we artists don’t do the same. God forbid we should actually charge money for our work!

Britt Griswold: Even many “Educational Purposes” will not qualify as fair use. If a professor takes chapters from different books and puts them together and copies them for their students, they are probably in trouble, especially if the students have to pay for the copying. Generally, anything that would reduce that opportunity for the author/artist to sell their image into the marketplace is going to be considered a big mark against Fair Use.

Fair Use can involve anything from 1% to 100% of the original art. It all depends on how it is used. The use of traced images placed into a PDF for free distribution, even for educational purposes will likely not be considered Fair Use. Breaking news, parody, and criticism are the common exceptions for Fair Use.

Stephen DiCerbo: I was thinking more about the use of an image in a PP presentation “that I am working on”, but Jim’s input about the spontaneity rule kinda kills the reuse angle...

Well, that’s all good for us as Illustrators...

Sometimes it’s hard when your own rules seem to work against you, but having morals and ideals only counts when it difficult to stick to them.

Jeremy Swan: It’s my understanding that anything on publicly available government websites is public domain. Taxpayers pay our salaries, so it’s nice to give back.

Stephen DiCerbo: Sorry Jeremy, I have to strongly and vehemently disagree with you on this. I have heard a huge pile of misguided justification for copyright theft over the years, but the public funds–public domain association is one of the worst. One of the greatest gods of fish Illustrators is James Tomelleri. (you gotta check these out...and believe it or not...Colored pencil!) For awestruck ichthiographers, his stuff is recognizable from a mile away. Once I saw some of James’s images residing on the website of some Colorado sportsman group, no credit, and no sig, nothing…I wrote an email to the flyfishing listserve I got the link from and stated that not only did they steal his images, but took pains to eliminate any indication that it was his.

Someone forwarded my email to the group’s webmaster, who promptly bombasted me with self-righteous malarkey about the images coming from a State of Colorado Fish Poster, and that the images were public domain because the State had used public funds for the poster.

What a load of hooey.

The State Department may have obtained reproduction rights by paying for them, but to feel that the taxpayers own those same rights to reproduction is a bit misguided... Otherwise, I could borrow a County plow truck, spread county salt on my driveway, take home State museum artifacts... you know, like that. I don’t think the judge would buy the justification: entitlement by proxy of taxes.

It is swell that you had the fellow in your group share your work with the public, but the tax entitlement thing, uh-uh...

Jeremy Swan: Thanks Steve, I probably shouldn’t have tried to explain the reasoning, and it’s certainly not true for equipment, like plows, etc, but it should be true for things like publications funded with federal funds (very different than state). I’ll look up the official regulations governing artworks produced for NIH, but we’re all (in my group anyway) open to reuse of our work (similar to NASA images), although we understand this could result in distasteful rip-offs, out of context use, etc.

There is an office of tech transfer that handles discovery and intellectual property. They may have insight.

Linda Feltner: As a government contractor, I and many others, have negotiated for nearly 20 years to keep our copyrights to artwork and eliminate Work For Hire in those contracts. That includes illustrations and photographs provided for government publications, interpretive graphics, and (our work is) sometimes found on government websites. We provide the taxpayer with fair prices for one-time use or restricted use. Even if it is a widely distributed publication, it’s not public domain. Parts of it may be—if the government project manager provides the text, graphs, charts, scientific data—but not all.

Britt Griswold: Appearance on a government website is no guarantee of Public Domain. If the specific website says all the images on their site are in the public domain, maybe—if you trust them to know what they are talking about.

Unless the FEDERAL government is paying the salary of the artist or has a work-for-hire contract with the artist, they are not in the public domain. The policies of State created art may vary from state to state. Even FEDERALLY created art will have limitations on how it can be used. NASA has very specific policies related to the appearance of endorsement, and to the use of people’s recognizable images.

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