Navigating Copyright Issues

Copyright sounds scarier than it actually is when used in an educational context. As Dan Cohen and Roy Rosenzweig commented, "few people do digital history without both making a creative contribution of their own and benefiting from the creativity of others." Digital storytelling (DST) embodies this basic observation. When thinking about how to craft a digital story, students will naturally begin thinking about published images, music, or videos that could best fit their story. The final product displayed in a history classroom, however, uses these published resources in a new way: to "teach" an audience something new about the past. Student DST projects, along with samples created by educators for classroom use, fall under what Lawrence Lessig refers to as "amateur creativity." Digital stories are simply not intended for commercial use.

Still worried? Cohen and Rosenzweig's chapter entitled "Owning the Past" in Digital History: A Guide to Gathering, Preserving, and Presenting the Past on the Web, is a good starting point for educators worried about copyright laws in education. Their overview of the history of copyright laws is helpful in erasing concerns that are often unwarranted. Cohen and Rosenzweig argued that much of what educators fear (like a lawsuit from Disney) is simply an "unquestioning compliance" to threats from rights holders...which are often shaky on legal grounds. Educators do possess some rights for educational purposes. Often dubbed "fair use," the idea is simply that any use of copyrighted material should be selective, consist of a small portion of the original material, and be clearly used for instructional purposes. 

This is not to say that educators should be careless in their use of copyrighted material. A clear difference, however, exists between creating a DST project for a class assignment (or a presentation for a group of educators, much like this site) and one created for commercial purposes. In other words, if a professor were to use copyrighted material to develop a digital movie, and then charge viewers a fee to view the video, that scholar would run afoul of copyright laws currently in place. This is much different than creating a model video for students to view as they think about their own projects. In fact, using DST in the classroom is an excellent opportunity to discuss intellectual property, copyright, and open access. A digital story, like any academic work, should provide specific and detailed attribution to sources that are referenced and used in a final product. Teaching students how to properly cite sources in footnotes and in a bibliography, as well as how to properly attribute sources in a DST project, is an essential part of history education.

Here are some suggestions on how to ease any worries about copyright violations without sacrificing intellectual and creative freedom:
  1. Don't use copyrighted materials if they are unnecessary. Wesley Fryer posted a useful mnemonic device to share with students working with digital media: "Harry Potter Can Fly!". Images, audio, music, and video items used in a DST video should be (in this order):
    1. H=Homegrown, or created by the DST producer. Original art, music, videos, and photos. Tools like GarageBand, for example, allow users to create their own original soundtrack.
    2. P=Public Domain. Using delimiters on Wikimedia Commons, Google Search, or Creative Commons search, students should have no problem finding numerous items in the public domain on the Web.
    3. C=Creative Commons. Photo sites like FlickR host a vast amount of work that creators have given permission for others to use, remix, and/or publish as long as they follow the specifications of the owner. Some items can only be used "as is," while others can be adapted and modified.
    4. F=Fair Use. As discussed earlier, this term provides some cover for educators who find a 30-second clip from The Patriot (for example) to highlight a key point in a digital story that a simple image could not fully capture. Fair use is probably not intended for using the entire Billy Joel song We Didn't Start the Fire and simply superimposing historical images. Simply put, the vagueness of "fair use" as delineated in U.S. Copyright laws is helpful but should not be abused.
  2. Read various articles on fair use in digital storytelling. Education experts and history scholars have written extensively about copyright in education. Aside from Cohen and Rosenzweig's excellent primer, and Fryer's thoughtful analysis, here are some recommended selections to look at:
    1. "PART V: Copyright and fair use in education" in Digital Storytelling in the Classroom: New Media Pathways to Literacy, Learning, and Creativity by Jason Ohler.
    2. The University of Houston's The Educational Uses of Digital Storytelling contains an extensive overview of copyright concerns for digital storytelling.
    3. Education World offers a good review of fair use in the classroom.
    4. For educators in public schools and other non-profit academic institutions who teach long-distance courses, any reading on the TEACH Act is a must. Cohen and Rosenzweig cover this topic in-depth based on an excellent overview from legal scholar Kenneth Crews.
  3. Be smart and use some common sense safeguards. A course website, hosted by a school system or university, is ultimately going to reflect on the institution as much as the instructor. Protecting a site by using a password for student access is a smart move. Finished videos can also be hosted on many platforms and marked "private" through the use of a password. At the very least, "private" settings shield projects from search engines; only viewers with a specific URL address will be able to see a particular video. 
  4. Choose your hosting site wisely. Wherever you (or your students) choose to host a video, understand what policies may be involved. For example, publicly uploading a video to YouTube is an invitation to a possible request to remove it because of copyright violations. Instead, sites like Vimeo have become viable alternatives that attract less attention and provide necessary privacy settings. The goal for educational DST projects is to make them accessible to the class. If the goal is to attract thousands (or millions) of viewers, then DST producers should be very selective in what media resources are included in final products. 

Conclusion

Unless a DST project proves profitable, or attracts a vast audience, it will be probably go unnoticed by rights holders...assuming that copyrighted materials are an extensive part of the video. Most likely, digital stories will fall under the "grey area" of educational fair use. History educators should hopefully encourage students to attribute sources as part of their experience as budding historians. Although the suggestions provided here will go a long way towards minimizing unwarranted fears about copyright issues, this site does not pretend to offer legal advice on copyright laws. It simply offers an overview that allows history teachers and students to work on DST projects in a more educated, and less stressful, manner. 
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