Fair game: a grad student’s adventures in fair use and copyright

Ed.: I’m pleased to welcome our next guest blogger, Chris Boulton. Mr. Boulton is a PhD student in communication at the University of Massachusetts, Amherst specializing in advertising, visual culture, and media literacy.

Opinions are solely those of the author.

Last year, my masters thesis served as a “guinea pig” for the new electronic submission process at the University of Massachusetts, Amherst. The monograph was a critical analysis of children’s fashion and included several examples of clothing advertisements. Despite lengthy efforts to secure permission to reproduce these copyrighted images, I was denied at every turn by corporations eager to protect the image of their brand. Therefore, according to rule number 88 of the UMass Graduate School’s Guidelines for Master’s Theses and Doctoral Dissertations, I was required to excise the ads from the text and “include a note in the List of Figures that directs readers to the set of illustrations on file in your department.”

As you can imagine, this was a disheartening prospect. The ads were, in short, the very basis of my analysis. Rule 88 means that any reader who wanted to view the ads would be forced to travel all the way to the UMass campus, trudge up to the fourth floor of Machmer Hall, and then request that a secretary pull out a dusty manila folder “on file in my department.” I wouldn’t go to such trouble, particularly if I had accessed the thesis online, so how could I expect anyone else?

As you can see, rule 88 put me in a terrible position. To comply would mean stripping the data from my analysis. If I ignored the rule and printed the ads, I risked rejection of my thesis, or worse. Clearly, this rule presented a serious hindrance to my intellectual freedom. Furthermore, I did not believe that it correctly reflects current copyright law as specified in section 107 of the United States Copyright Act of 1976. For example, the guidelines from the Graduate School do not even mention the right to use copyrighted images for educational and non-commercial purposes. Commonly known as “fair use,” this mechanism allows scholars and journalists to quote from copyrighted material in order to comment on it.

But of course, copyright goes both ways. For instance, I have recently been inspired by SPARC to retain the copyright of my own scholarly journal articles. There are many reasons to do this, but the most compelling for me was preserving the option to make my academic work freely available to the general public immediately following its date of publication. The 9 minute video below takes a look at both sides of the copyright coin by telling my two stories of open access in the emerging digital commons.

Fair Game: Open Access in the Emerging Digital Commons from Chris Boulton on Vimeo.

For scholars who study media, the internet has broadened research horizons and expanded the reach of teaching and publications. But powerful gatekeepers remain. From academic journals seeking to control our intellectual property to lawyers crying foul when we quote from copyrighted material, we are bombarded with a myriad of confusing and dubious restrictions. In short, the implied threat of legal action creates a chilling effect that impacts us all. Some have pushed back, arguing that our educational activities are protected under the “fair use” statute. But this is a risky game to play. The rules aren’t always clear. And when it comes to fair use, we either use it, or lose it.