As the Coordinator of Educational Technology for the Fox Chapel Area School District I developed a series of interactive activities for all new staff members addressing copyright and fair use. It was important that every educator understood their personal issues as well as how the issues impacted her classroom instruction. I never expected I would have to deal with this issue from a personal perspective.
What happened? In 2018 I received an email and then a letter from a Canadian firm that licenses photographs. They claimed I had used a copyright image on my website without permission. They wanted me to pay for the use of the image. I was taken back and went to the webpage in question on my own website. I could not find the image. Instead, I observed that there were four images on the page for whom I owned the copyright. Then, I went to my library of graphics. Could I have downloaded the image and used it in an earlier version? No, that wasn’t the case.
I started to talk with friends and colleagues about what I should do. Most said, “Do nothing. They’ll forget about you.” Well, that didn’t happen. A week after the initial contact, I received a letter from the law firm representing the photo agency indicating that there were seeking payment for my “digression.” Then a representative from the law firm called me. This really upset me. I felt like I was being harassed for something that really was not illegal. Then a second call came. I decided it was time to get legal counsel to delve into this issue.
The attorney and I did some virtual research and the attorney found the original story I had posted. The story included the photo I had supposedly used in violation of copyright law. The photo in question was part of a story about a Japanese robot. The image appeared as “thumbnail” in the list of most recent Posts in the sidebar on my website. We believed that I had not violated copyright law and could possibly be covered by the Fair Use part of the Copyright Law.
How could I be covered? During those years when I conducted my Copyright and Fair Use workshops for the Fox Chapel Area School District I did research on the topic. I came across an article from the Stanford School of Law that outlined what I called the “PANE” factors for Fair Use. PANE stands for Purpose, Amount, Nature, and Effect. I would tell my audience, “Limit your “PANE” by following some simple guidelines. Let’s look at how this framework relates to my issue.
The Purpose for my posting was to “curate” an article in order to share with my audience of followers something that I thought would be of interest to them. I have over 900 people who follow me on Twitter. Most are educators who have similar interests about emerging technologies. In addition, I’m the former co-chair of the Emerging Technologies Committee for the Consortium of Schools Network (CoSN), an organization for educational technology leaders. I write articles and do presentations on topics, such as Emerging Technologies.
The Amount deals with the percentage of the original work you use. Normally you can only use 10% of a resource to stay within the Fair Use realm. In this case, it’s moot, since there was only one image. When I worked with educators I had them think about using a part of a piece of music or a section of a paper or poem. In this case, there is a point that is relevant. The photography was part of an article. I did not just post the image. I posted an article that contained the image. Moreover, I did not post multiple copyright images. I only posted the story that contained the image in question.
The Nature is another important point. In this case it’s a bit muddy. After a second round of investigations, I discovered that I posted the story based on information from another company, TechTerra. I copied into my story information that TechTerra shared that included the copyright image. The copy of the photo was on the TechTerra server, not on my computer.
The Effect is also very important. My audience read the article with the incorporated photo and increased their knowledge of a unique use of robotics. The effect did not limit the market impact of the photographer or agency that owned the image.
I thought I would never need to revisit this story, but guess what happened again? Yes, the same company came after me again in 2021. This time I made a critical mistake. I posted part of a story with a copyright image inside of a story I wrote about Remake Learning in Pittsburgh. The photo was on my server. I had used a copyrighted image in one of my stories with the proper attribution of the photo to the photographer and agency, but that didn’t dissuade the Canadian company. I, once again, reached out for legal help, but this time there was nothing they could do for me.
I deleted every story on my website that I did not write and/or had any images that I had not personally taken. I suggest you think about this story and make sure you’re protected.
I’d like to share this story so other educators can better understand the issues and think about how they are addressing Fair Use and Copyright. In addition, I want to use what James Comey calls “Ethical Leadership.” According to James Comey, it’s critical to use standards or outside frameworks that provide guidance to be an effective leader.