Case Study 2

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Case Study 2: Photographing a Copyrighted Work

What are the rules about photographing books and other copyrighted materials? It's not always straightforward

Jane Smith is looking for an image for a slide in her Powerpoint lecture on 20th Century American literature. Her lecture explores how books published long ago retain their relevance to modern readers. As luck would have it she finds an example that illustrates this point beautifully – a photograph showing a page from her favourite book ‘A Girl of the Limberlost’ in both book and e-book form:

Jane wants to use the image, so checks the license on the image and finds the photographer has given the photograph an open license – specifically the Creative Commons license CC-BY-NC-SA.

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Jane's Conundrum

  • Do you think Jane can use the image during her lecture presentation?
  • Could Jane also upload the photograph to the Web as part of an open educational resource version of her lecture?

You may not know the answers, but consider what the possible issues are likely to be before viewing the feedback below.

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This example highlights some of the complexities involved in use of intellectual property generated by a third party.

Copying a copyrighted work

The main reason to be cautious is that the photograph depicts pages from a printed book and a digitally displayed e-book that could potentially be under copyright. Remember, ‘copyright’ is exactly that – the creator's exclusive right to copy their work – and copying includes taking a photograph of the work, even a small part of it. In this case we are talking about the publisher's copyright, not the photographer's, since the photograph is openly licensed.

We know from case study one that copyright on the text of ‘A Girl of the Limberlost’ has expired, but we do not know whether the versions that appear in the photograph are copyrighted due to proprietary layout and typeface in newer editions. It is possible to download public domain versions of copyright-expired books in e-reader format, so the e-reader file shown in the photograph could be acceptable. We also don’t know if the photographer sought permission from the publishers in the event that the copies shown in the photo are under copyright.

Insubstantial copying

Further complicating matters, even if the pages shown in the photograph are currently protected by copyright, making a copy may be permissible if it shows a sufficiently small part of the work. In this case only a single page out of an entire novel is shown. In common law countries, including New Zealand and the US, it is permissible to copy an ‘insubstantial’ part of a copyrighted work. However, judgments about what exactly constitutes 'insubstantial' often take into account more than just the proportion of the work shown – for instance, if the photograph contained a iconic quote that the novel is widely known for, then the photograph could potentially be infringing copyright. The context of the copyrighted material in the photograph is also important, as is the use to which the photograph is put.

Licensing for OER

Another issue is the type of license that the photographer has applied to the photograph (CC-BY-NC-SA). The ‘SA’ part of the license stands for ‘Share-Alike’, meaning that any work that uses the image must be licensed using the same license type, or a similar one bearing a share-alike provision. If Jane wishes to release her presentation as an OER, it would need to be licensed with a different open license (CC-BY) to be considered a true open educational resource and to meet the specifications of Otago Polytechnic's IP policy (note: the OCL4ed workshop explores licensing for OER in more detail).

The bottom line

It is possible, if not likely, that the photograph of pages from ‘A Girl of the Limberlost’ does not infringe copyright, but Jane doesn’t know for sure. A key point here is that it is often difficult to gather this information by examining the license information alone, and the onus is on the user to find it. If the photograph does infringe copyright, by using it in her presentation, Jane is also infringing copyright since she too is making a copy of the work, regardless of the license type the creator of the image has chosen to use. Although unlikely, as a user of the image, Jane could potentially be liable to a copyright infringement claim. Moreover, the license applied to the photograph is not a good fit for an open educational resource due to its share-alike and non-commercial provisions. This case study shows that there are numerous things to consider when using openly licensed content created by a third party. When in doubt, it is generally best to err on the side of caution and find an alternative.