I blog fairly often about intellectual property (IP) issues and Creative Commons. My winter 2003 article for the TechEdge, “Copyright 101 for Educators,” is one of the resources I commend frequently to teachers, librarians, and school administrators when questions about copyright and publishing of student media projects come up during my workshops. In all these discussions, I’m quick to point out “I’m not a lawyer” and people should consult a lawyer for actual legal advice regarding copyright, intellectual property, and other issues. I do attempt to stay abreast of copyright and IP issues as they relate to education, students, and multimedia projects, however. As educators, we need accurate and practical guidelines to follow when using and re-using media in student multimedia projects as well as our own. The ideas within this post invite an introductory echo of this disclaimer: Please do not utilize any of the ideas or comments below as actual legal advice. I hope, however, my synthesis and observations about these topics will assist you as you strive to better understand intellectual property laws and how they apply to us all within and outside formal educational settings.

Washington Post journalist Monica Hesse’ recent article “Help! I’ve been photonapped by Big Business!” highlights the fact that misunderstandings about copyright and failures to properly adhere to copyright law are not limited to young students posting videos onto YouTube. In several well publicized cases, corporations (including Microsoft and Virgin Mobile Australia) have inappropriately utilized Internet-posted images on their websites and in some large-scale advertising campaigns. After describing several of these cases involving corporations utilizing Flickr-posted images without permission or proper attribution and noting these circumstances require “a crash course in copyright law,” Monica asserts:

It’s all doubly muddled online, where images can be thoughtlessly taken with one mouse click, such as when thousands of boys made screensavers out of high-school track star Allison Stokke’s photo and never once asked, “Legal?”

If you are not familiar with the case and circumstances surrounding Allison Stokke, an attractive high school track athlete whose images became famous online without her permission or the permission of her parents, read Eli Saslow’s Washington Post article from May 2007, “Teen Tests Internet’s Lewd Track Record: California High Schooler Allison Stokke, 18, Becomes a Victim Of Unwanted Attention After Photo Is Posted on a Sports Blog.” This case is an eye opener and should be on the radar screen of parents as well as educators working with young people. Virtually ANY person, young or old, could become the next Allison Stokke or Alison Chang. While I encourage AWARENESS about these cases, I actively discourage hysteria or the sort of reactionary responses to social networking which we see all too frequently in the mainstream press as well as at PTA/PTO presentations by law enforcement officials about Internet safety. We need to be aware of the risks and issues related to online media sharing, but we don’t need to throw away all our computers and cancel all our Internet access lines as part of a fear-driven, extreme response.

With regard to journalist Monica Hesse’s comment about digital technologies “muddying” the ethical waters of media re-mixing and reuse, it is certainly true digital copy-and-paste technologies have made the process of copying an image (with or without permission or proper attribution) much easier. I disagree with Monica’s contention that these situations are “doubly muddled” by digital technologies, however. These cases can be confusing, but I think that “muddiness” stems more from the diversity of copyright law around the world rather than the access to digital technologies which content creators and publishers often share. The complexities involved in intellectual property law, aside from technologies which are used, also add to the confusion. While technologies have made plagiarism as well as copyright violations easier to commit, they have also provided additional options for content creators and re-users/re-mixers. Creative Commons is the most salient and well known example.

The YouTube video, “Privacy Issues, Photos, and the Internet,” provides an overview of the Alison Chang / Virgin Mobile Australia case which involved a camp counselor publishing a photo on Flickr and licensing it without permission from the subjects included in the photo. This is one of the cases Hesse briefly describes in her article:

CNN also posted a video about this incident in September 2007 as well titled, “Who owns your photos?” Unfortunately users of CNN Video have to watch a 15 second advertisement before seeing the clip, and there does not appear to be a way to embed their video clips directly within a blog post. (To use Twitter parlance, @CNNNewsroom: You’re losing potential viewers because you do not support embedding. This post provides a case in point.)

Under U.S. copyright law, permission is required to utilize copyrighted works in circumstances which do not qualify as “fair use.” In case of Alison Chang, several copyright / intellectual property mistakes were made by multiple parties which are worth reviewing.

LESSON #1: USE AND REQUIRE “I-FORMS”

Alison’s camp counselor apparently did not obtain Alison’s permission or her parent’s permission before web-posting her images to Flickr. In the case of a school organization or camp, media release and publication forms should be required just as medical forms often are. Dr. Tim Tyson described the way he handled (as a middle school principal) issues of Internet publication of student images and videos in his keynote, “Moving from Personal Knowledge to Global Contribution” at the 2007 Christa McAuliffe Technology Conference. (Nod of thanks to podcast publisher Bob Sprankle.) Tim called these “iForms.” Every school and camp should have them. Counselors and campers should be careful when they web-post images of others for whom they do not have permission to post and share their images. With the proliferation of camera phones and the ease with which images can be web-posted to sites like Flickr, situations like this one are sure to recur. It behooves organizational leaders to be aware of these issues and proactive with permission forms.

LESSON #2: IF YOU ARE REUSING NEW MEDIA CONTENT ON A CORPORATE WEBSITE OR IN A NATIONAL AD CAMPAIGN, OBTAIN EXPLICIT PERMISSION FROM COPYRIGHT OWNERS AND PHOTO SUBJECTS

The biggest mistake made in this case was by the Virgin Mobile Australia marketing team that decided to use this image without permission, from either the Flickr user who posted it (Alison’s camp counselor) or from Alison and her parents, since she is a minor. While it was true the camp counselor published the photo under a Creative Commons license, the Virgin Mobile Australia marketing team failed to meet the most basic requirement of a Creative Commons license: Providing attribution for the source of the photo. When I use Creative Commons licensed images in my presentations, I meet the attribution requirement by including the link to the original photo on each slide. You can see examples of this in my presentation slides for tomorrow’s keynote, “Powerful Tools, Powerful Possibilities.” When I’m including an embedded Flickr CC image in a blog post, I always link the image back to the original Flickr page.

Corporate websites and national advertising campaign managers should know better than to use a web-posted image without permission. In my own Flickr-powered public career as a new-media photographer, I’ve been contacted in one instance by the publisher of a Vancouver Travel Guide asking for my explicit permission to let them use a photo I took in Vancouver in their publication. I was honored and said yes in this case, but that is not the larger point. The larger point is that Flickr makes it SO EASY for one user to directly message and contact other users. This feature is called FlickrMail.

Flickr enables content publishers to readily contact photographers to obtain explicit re-use permission.

Why did the Virgin Mobile Australia marketing team not send a message to Alison’s counselor, asking for his permission to use the photo he’d published? Why did the marketing team not, at the very least, include the Flickr username and a CC license reference on the image itself, to at least ATTEMPT compliance of the VERY clear CC license terms? Ignorance and incompetence are the most likely explanations. I’m sure those responsible for this “error” are no longer employed directly or via contract by Virgin Mobile Australia.

The opportunities available in our digitally connected infoverse ARE exciting, but in many cases they are also fraught with challenges. I encourage you to read more about the cases referenced in the articles and videos I have linked in this post. There are not simple solutions, but thankfully there ARE more options available to both media publishers and media re-mixers than simply traditional copyright. Josh Wolf penned a post for CNet in September 2007 focusing on this Virgin Mobile Australia case titled, “Suit exposes flaws in Creative Commons.” Rather than flaws in Creative Commons, I think these cases highlight the complexities involved in re-using media, which ALL media producers (yes, that should include students and teachers) need to understand.

1. Get permission from photo publishers. If CC permission is granted and your publication is high-profile, get additional explicit permission.

2. Same exhortation as above, except for photo subjects.

I’m sure both of these lessons are included in any Marketing 101 class for business majors. If not, it’s high time they were included.

Interestingly, I was not able to find this article by Monica Hesse on the Washington Post’s website, but did find the link above from the Seattle Times. The January 13th print edition of the Manhattan Mecury (of Manhattan, Kansas) included a PARTIAL reprint of the same article, titled “Online bloggers’ images increasingly being used without permission.” The final thirteen paragraphs of the article, starting with the sentence “Or, in total anarchy?” were not included in the Mercury’s printed version, however. Maybe they ran out of print space?

Thanks to AHF for bringing this article to my attention. :-)

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