Originally presented at the TLA 2014 conference. Presentation slides available here: http://prezi.com/bdcpl_fasn_w/social-media-fair-use-and-attribution/
The problem: You want to use eye-catching images and media for your library's social media, but you don't want to spend an unreasonable amount of time searching for images that are free and legal to use. The solution(s): Use sites and services like Creative Commons and Getty Images' new embed feature that spell out their licensing terms in plain English, and make reuse of their images easy, legal, and free. A second approach might be to wade into the depths of copyright law and fair use. A third option is to be cavalier in your approach, and run the risk of illegally using images and materials. Hint: The first option is preferred, the second is something we should all at least be aware of, and the third should not ever be attempted.
The "social" in social media means posting content that will spark social interaction. Attention grabbing photos and images help break up the text, draw feedback, and show off the library. Finding quick, ready-made photos can turn a two-sentence post with a photo into a search down the rabbit hole for a photo that can be easily and appropriately attributed. To further complicate the situation, the fine print of copyright issues is still applicable in the social media arena.
One of the quickest and easiest ways to add imagery is to take photos within the library and use event photos (make sure your library has a written policy about event photos, and even a photo release form). Businesses might subscribe to imagery services such as Getty Images or Shutterstock and pay per photo to save time, but there are other ways that are open to libraries to use that are free and easy, as this article will demonstrate.
If you are using social media platforms for your organization, then you are probably aware of how copyright can affect your posting, tweeting, and pinning options. Pairing social media posts with dynamic visuals and sounds is a given for getting your posts noticed, and hunting for those images should be quick and easy instead of a time drain. This article will brush you up on the basics of copyright and social media and show you some easy tools and resources to utilize for creating eye-grabbing social media posts. With a few simple tools and resources, figuring out copyright rules for social media posting can be more of a reflex (and less of a pain!) and finding library‐related images and sounds that have appropriate copyright licenses can be a breeze.
Attribution, Plagiarism, and Fair Use
Attribution is correctly attributing the creator or license holder of an image (or other work). Think of this in the same way as an author cites a work in a research paper. In that example, a research paper is fair use--namely supported by the first factor--because the author transformed the original work by adding value, in the form of critique, criticism, or using it to contribute to the formulation of new ideas or new work. Attribution has nothing to do with copyright law (Masnick, 2012)--it helps you avoid an allegation of plagiarism (Masnick, 2012; Siem, 2013). Plagiarism, in this context, is separate and distinct from fair use. As Siem (2013) clarifies, even giving full attribution and linking to the original content does not satisfy the requirements of fair use; you're still infringing on the creator's copyright. Aside from following licensing agreements for sites and services like Getty Images and Creative Commons, attribution is not part of the fair use balancing test; it only pertains to issues of plagiarism (Masnick, 2012). To summarize: You can attribute until you're blue in the face and if it's not fair use, it's simply not fair use. Attribution is a best practice, but it doesn't make a use fair use, it simply guards against plagiarism.
Plagiarism, as discussed above, is the act of not correctly attributing the creator or license holder of an image (or other work). Plagiarism is taking another work as your own, or simply not saying where it's from or who made it. And of course, this happens all the time on the internet. The challenge with the internet is that it makes “stealing” so very, very simple and easy. We all share everything online; it’s the norm. But there are many things that can’t be shared.
Specific sources such as Creative Commons and Getty Images spell out the method of attribution for their images. This does not mean that following this type of attribution for any image found online or otherwise constitutes free and legal usage. In general, you need to have permission from the creator, unless specified from a site. And even then (!) it is user beware. Know the rules.
Fair use relates to narrowly defined public use as outlined in U.S. copyright law. Fair use is seen as a safety valve for the restrictions of use that copyrights place on material. It is necessary for free speech and to support the intent and purpose of copyright, “to promote the Progress of Science and useful Arts.” Fair use is not directly or necessarily related to either attribution or plagiarism. You could post a copyrighted image on a website, attribute it to its creator, and still be violating fair use.
Fair use is difficult to discuss because the parameters are so fuzzy. There is often little consistency because each court performs the fair use balancing test on a case by case-by-case basis. The outcome from one case to another can differ drastically. Predicting outcomes is difficult, to say the least.
Nevertheless, it is important to understand fair use because of how easy the internet makes it to use and infringe upon copyrighted material. This is one argument for why Getty Images' recent change is important. If a court finds the copyrighted work was infringed upon, it does not matter if a person or business actually knew what they did was illegal, they are still liable for damages.
Without discussing fair use and copyright law too deeply, the balancing test is four questions that are used to determine if a use qualifies as fair use.
- Purpose and Character: In order to be fair use, is the use transformative?
- Nature of the Work: What is the nature of the copyright work (is it published/unpublished, fact or fiction?)
- Amount and Substantiality of Portion Used: How much of the work is being used?
- Effect on Potential Market or Value: Does the use interfere with the original creator’s potential for new markets?
Sites and Services for Using Images: You Can't Spell “Use” Without “Sue”
Using images to draw attention to the library's social media sounds fun; posting is easy and the internet ABOUNDS with images. However, any photo/image found on the Internet requires some sort of attribution unless it is your own. Libraries must use best practice when posting the work of others, while being careful to trace back the origin of that image to ensure it is not questionable or out of line with what the library stands for. We cannot simply find an image on Google Image and post it to Facebook or Twitter, even if individuals can skate by with this on personal accounts. Libraries support the freedom of information, after all, and with this is the responsibility to practice good copyright policy. Also, ignoring copyright and fair use in social media can very easily lead to negative publicity and put the integrity of the library on the line.
While this article focuses primarily on Creative Commons and Getty Images, the following are all good content sources; just be sure to read their terms of usage: Creative Commons, images already in public domain (http://www.publicdomainpictures.net/), Wikimedia, Wylio, USA Gov Database (http://www.usa.gov/Topics/Graphics.shtml), Flickr, and Getty Images (see section below for their new rules of use).
Creative Commons: Free, Easy-to-Use Copyright Licenses
Creative Commons was founded in 2001 and has become a center for global media sharing, with hundreds of millions of licensed works available for public consumption. As a nonprofit organization, the purpose of Creative Commons is to enable “the sharing and use of creativity and knowledge through free legal tools.” They employ “free, easy-to-use copyright licenses” that standardizes how the public can share and use creative works (Creative Commons, n.d.-a). The Creative Commons is one of the most easily accessible and usable sources of media available online. Content creators can make their media available for use on Creative Commons and choose the type of license available to the end user. This is all done in easy to follow, easy to understand, plain English. There are six main license types, in order of the most liberal license to the most restrictive: Attribution, Attribution-ShareAlike, Attribution-NoDerivs, Attribution-NonCommercial, Attribution-ShareAlike-NonCommercial, and Attribution-NonCommercial-NoDerivs (Creative Commons, n.d.-b). Each license uses a set of symbols to identify the type of license, and the "about the licenses" page has short descriptions of what each of the six licenses grants. These licenses basically cover whether an image may be altered, how it can be distributed, how to attribute the creator, and whether or not it can be used commercially. Some of these guidelines may not necessarily apply to your usage of the work, but knowing whether you can alter the image and how to attribute the creator are generally two important restrictions to know. Since libraries are non-commercial, you can even search for non-commercial use and find thousands of images suited to use within your library.
Notifying the creator is always a best practice, regardless of the license. This extra step can create good relationships with content creators and help instill a strong ethical backbone to your practice of using licensed content. Many content creators may want to know when and how their images are being used and reaching out in this way avoids any surprises to the creator regarding the use of their work.
Getty Images: Adapting to Users, Instead of Fighting Them
The simple fact is that the internet makes it extremely easy to commit illegal activities, and not even realize that you’re breaking federal law (Garber, 2014). If you copy and paste an image, screen capture, or otherwise download and reuse it without permission, you've committed copyright infringement. For many years, the main recourse for entities like Getty Images to halt the illegal use of copyrighted material was to sue the individual that was unlawfully using the materials or the site and service that allowed them to (think of peer-to-peer networking programs). The Digital Millennium Copyright Act of 1998 introduced the ability for rights holders to request that websites takedown the material in question (referred to as a takedown notice), but this still requires a great deal of time and resources to scour the internet.
A few years ago, Getty Images acquired a service called PicScout, which developed a technology that crawls the web and tracks images as they appear online. This web technology allowed Getty Images to see how, when, and where their images were being shared all over the internet and they found that tens of millions of images were being used without their permission. Realizing that they couldn’t sue everyone (and the dark side of public relations when you attempt to do so), senior vice president at Getty Images, Craig Peters, said that they decided to see that as an opportunity rather than a problem (Brustein, 2014).
Getty Images now has millions of their stock images (excluding “photojournalism”) to be used for noncommercial purposes. For Getty Images, this creates a legitimate marketplace for using their images, much as iTunes did for digital music. The very fact that so many people use images and want to use Getty Images' content shows that there is a viable market demand, there just wasn’t a real marketplace for people (Brustein, 2014). The new terms of free usage relies on a very simple “embed” feature, which is available here: http://www.gettyimages.com/Creative/Frontdoor/embed (Getty Images, 2014a). The terms of usage require that the embed feature be used in order for the image to be free and legal. Embedding free Getty Images images is as simple as copying and pasting the embed script in your Facebook post. Images with the free embed option are for online use only and do not translate to free print use. Creative Commons, however, does specify print use guidelines depending on the license.
A main point of insight to take away from this article is that if you use the resources and follow the terms of usage for Getty Images and Creative Commons, you don’t have to worry if a use qualifies as fair because their licensing agreements outline precisely how the content can be used, therefore alleviating the headache and sidestepping the discussion of fair use of copyrighted material. Adapting to ethical practices when using images from other content creators can be simple once you understand the concept of licensing and fair use.
Brustein, J. (2014, March 6). Since it can't sue us all, Getty Images embraces embedded photos. Bloomberg Businessweek. Retrieved from http://www.businessweek.com/articles/2014-03-06/since-it-cant-sue-us-all-getty-images-embraces-embedded-photos
Creative Commons. (n.d.-a). About. Retrieved from https://creativecommons.org/about/
Creative Commons. (n.d.-b). About the licenses. Retrieved from https://creativecommons.org/licenses/
Garber, M. (2014, March 6). Why Getty going free is such a big deal, explained in Getty Images. The Atlantic. Retrieved from http://www.theatlantic.com/technology/archive/2014/03/why-getty-going-free-is-such-a-big-deal-explained-in-getty-images/284264/
Getty Images. (2014a). Embed our images. Retrieved from http://www.gettyimages.com/Creative/Frontdoor/embed
Masnick, M. (2012, March 27). How important is attribution in copyright issues? Techdirt. Retrieved from https://www.techdirt.com/articles/20120320/01540718164/how-important-is-attribution-copyright-issues.shtml
Siems, M. (2013, February 13). Copyright rules: Attribution is not enough. Innovation Insights. Retrieved from http://insights.wired.com/profiles/blogs/copyright-rules-attribution-is-not-enough#ixzz2zAZesck3
Annie Herlocker, Assistant Director at Clarksville-Montgomery Public Library, can be reached at email@example.com.
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