Based on a Roundtable Discussion at the Comic Art & Comics Section
of the 2000 Popular Culture Association/American Culture Association Annual Meeting
Saturday, April 22, 2000
Gene Kannenberg, Jr., University of Connecticut; Seetha A. Srinivasan, University Press of Mississippi;
and Joseph Witek, Stetson University
This Page Initially Compiled by Gene Kannenberg, Jr.
NOTE: If you have information which you think would be useful for this page, please contact Gene Kannenberg, Jr. Enties added on 1 February 2002 are noted in red.
Some Preliminary Questions to Ponder, with Some Preliminary Comments:
"Is the use of a comics panel/page in a scholarly article a quotation or an illustration?" My best answer at this point: "It depends." If an image is included simply as an informative decoration, then it's just an illustration. That's not to deny that it still might fall under Fair Use and that we shouldn't have to pay for it, but it is a distinction to be drawn. However, if an image is included because its formal and narrative properties are discussed and analyzed in the accompanying article, then we are dealing with an odd hybrid-form, the "illustrative quotation." Here is why comics scholars have a particularly difficult time in permissions, because we cannot "quote" from primary sources (comics) without including illustrations; often (though not always) quotations do not require permissions, while illustrations generally always do.
"Should comics scholars need formally to seek permission for every image they wish to use in a publication, even in the clearest possible cases of Fair Use?" Seeking permission opens the door to being charged for that permission; it can also be seen (by those who wish to) as a tacit acknowledgment that we don't entirely trust that our use of the image would be considered Fair Use--if it were, why would we be asking in the first place? But our own publishers have legal concerns as well--and that's why we often need to seek permission on a formal basis. In an ideal world, seeking formal permission would not open scholars to financial obligation--it should not even be necessary.
"Why should/do our publishers ask us to seek permission?" I'm sure that Seetha will address this topic in detail; but it's my understanding at this point, based on anecdotal evidence, that it is the publisher of an academic text who is the first "line of defense" should a quoted party seek damages for material used without permission. Copyright holder X won't first come after me if I use material in a way they feel is inappropriate; they will come after my publisher. Thus, our publishers have a large stake in making sure that use is Fair--and that usually means seeking written permission, which can lead to sometimes extravagant fees (and in my poverty-stricken graduate-student view, any fee is extravagant).
"Should comics scholars need to pay for permission to reproduce images?" I would answer a qualified "No"--qualified only because there are some cases where a request would fall outside of Fair Use (say, including the bulk of a short comics story within an article). There is also some concern as to whether using an entire daily comic strip would violate the letter or the spirit Fair Use, in which "the amount and substantiality of the portion used in relation to the copyrighted work as a whole" is one deciding factor (see below); how can you write about "Family Circus" and quote only part of a daily installment, if a daily installment can be viewed as a "copyrighted work as a whole"?
"Do permissions fees have an effect on scholarship?" I'd say yes, drastically; if we as scholars are financially obligated in the use of material we wish to discuss, we will of necessity be forced to limit our scholarship not on the basis of Fair Use, or of scholarly focus, but rather upon the depths of our bank accounts. The CAA's position on this topic (discussed below ) is relevant here.
Fair Use: A Definition Which Isn't, Entirely
The starting place for any discussion of Fair Use is in United States Copyright Information, and the easiest place to find that information is at the Library of Congress: Copyright Information Circulars and Form Letters : A large list of copyright information from the Library of Congress. Most germane to the purposes of scholarship is Circular 21: Reproduction of Copyrighted Works by Educators and Librarians , available as an Adobe PDF File (download the free Adobe Acrobat PDF reader here ). See especially Section C, Fair Use (pages 5-11).
Fair use is codified under US law in The Copyright Act of 1976: Section 107 , Chapter One of Title 17 , United States Code:
Notwithstanding the provisions of section 106, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comments, news reporting, teaching (including multiple copies for classroom use), scholarship or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is fair use the factors to be considered shall include--Section 107 gets mentioned in every discussion of Fair Use, as the four points above are the clearest guidelines which the government offers. As you can see, however, the guidelines really aren't completely clear. Since there are no quantifiable limits or restrictions, or definitions of any kind, really, this leads to confusion on everyone's part. I am assuming (although Seetha may prove me wrong) that publishes also cannot always gauge for certain when a quotation/illustration would definitively fall under Fair Use; and since publishers are legally responsible for the content of the books they publish, they choose to err on the side of caution.The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all above factors.
the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purpose; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work.
Resources on Fair Use
The MLA Style Manual and Guide to Scholarly Publishing, Second Edition (by Joseph Gibaldi; New York: MLA, 1998) includes an entire chapter on "Legal Issues in Scholarly Publishing" (Chapter Two) by Arthur F. Abelman. As noted in the text, Abelman is "a lawyer at the firm Moses and Singer LLP, in New York City, [who] specializes in the law of copyright and literary property" (33). See pages 31-60. (Don't let the Table of Contents fool you; while the chapter proper begins on page 33, pages 31-32 contain dummy permissions letters you will want to examine and, perhaps, use in modified form.
The MLA Committee on Academic Freedom and Professional Rights and Responsibilities published a pamphlet entitled Advice for Authors, Reviewers, Publishers, and Editors of Scholarly Books and Articles in 1995. The only applicable language in this document appears to be, "Responsibility for preparing the index, for providing art and permission for its use, and for obtaining permission to quote copyrighted material must be allocated" in book contracts (5); similarly for articles, "Any responsibility for providing art and permission for its use and for obtaining permission to quote copyrighted or previously unpublished material must be allocated" (10). Note the lovely use of the institutional passive voice. This document has not been updated. (Note 22 Sept 2003: Document is now on-line, but could not be reached when this page was updated - will try again soon.)
The Chicago Manual of Style, 14th Edition (Chicago and London: University of Chicago Press 1993) includes a similar chapter on "Rights and Permissions" (Chapter Four). See pages 125-54, especially "Requesting Permission, 4.63," pages 150-53.
The Fair Use Privilege in Copyright Law, Second Edition (William F. Patry; Washington, D.C.: Bureau of National Affairs, 1995) contains discussions of court cases involving Fair Use of two centuries in the USA, as well as English court cases from the 18th Century, guidelines and history on broadcast use, parody, First Amendment Issues, and more. I haven't had time to look through it in detail yet, so I can't yet list the most relevant pages for our purposes here--more soon, I hope.
The American Civil Liberties Union's The Rights of Authors and Artists (by Kenneth P. Norwick and James Simon Chasen, with Henry R. Kaufman; Toronto and New York: Bantam, 1983) spends several pages describing Fair Use (19-23); the authors note that factor 4 above ("the effect of the use upon the potential market for or value of the copyrighted work") is often the most important factor in legal decisions. They also include more explicit descriptions of Fair Use examples, written by the drafters of the Copyright Act of 1976:
quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author's observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a news reel or broadcast, of a work located in the scene of an event being reported. (H.Rep. at 65; Code Cong. & Ad. News at 5678-79; qtd. in Norwick et al., 20)The College Art Association 's Reproduction Rights in Scholarly and Educational Publishing lays out the issues (and potential solutions) in a way I've found to be very cogent. That fact that it argues against fees, and persuasively, makes it attractive, of course, but because it was produced by a scholarly organization makes it all the more persuasive. I'm not sure how effective it has been, and whether or not it's a document we will wish to invoke when dealing with these situations, but it certainly seems like it could be.
It lays out the situation in a way which I think it should be seen:
These fees are having a profound effect on scholarship. They are contributing to overall rising costs of scholarship in the field; but worse, they may be contributing to an actual decline in the quality of scholarship. That is to say, the presence of such charges undoubtedly inhibits the use of visual support for argumentation. In some documented cases the level of costs involved has resulted in cancellation of an important publication project.The proposal itself is quite brief:
The Proposal: Whenever possible, institutions that supply visual materials should waive reproduction fees for a scholarly publication. If this should, in some instances, not be feasible, fees should be substantially lower than for a commercial production.But the entire document contains a wealth of contextual matter, including this definition of "Scholarly publication":
Visual materials for scholarly research should be obtainable by scholars from institutional and commercial sources for a reasonable fee.
Scholarly publications are defined here as those publications that reproduce an image for an educational/cultural purpose and are directed to a limited educational/professional audience with, for books, a limited press run of less than 4,000 copies. A scholarly publication with a limited press run under this definition may be published by either a profit-making or a nonprofit-making or a nonprofit institution.I've asked the MLA Committee on Academic Freedom and Professional Rights and Responsibilities if they've heard of this document or are working on a similar version, given the rise in text/image narrative research; I'll post that information here when I receive it.
CETUS's Fair Use of Copyrighted Works : CETUS (Consortium for Educational Technology in University Systems) has a wide range of on-line information concerning Fair Use, including Fair Use and Higher Education: A Statement of Principle , which makes a similar case to the CAA's, this time with specific regard to electronic information (although the arguments are similar). A good source for a wide range of information.
New 1 February 2002: The Bureau of
the Comité International de Paléographie Latine has posted
of reproduction rights for the study of manuscripts or The study of manuscripts
and reproduction rights," a document also
of note. It calls for the owners of manuscripts not to charge fees
above and beyond the actual cost of the prints.
Other Copyright and Related Internet Links (from the Comics Scholars' Discussion List web site):
Battle of the Books (One view of copyright/republication issues in the digital realm) Note: web site appears dead, 22 Sept. 2003 Copyright Clearance Center National Writers Union (Publication Rights Clearinghouse, articles about Tasini vs. NY Times, etc.) Open Law: Eldred v. Ashcroft (was Eldred v. Reno) (Information on the case challenging the Sonny Bono Copyright Term Extension Act - The U.S. Congress's 20 year extension of the term of copyright protection) US Copyright Office
Thanks are due to the following individuals who have contributed information of use in constructing this web site thus far: Charles Hatfield, R.C. Harvey, Trina Robbins, and John Ronan; and from the University of Connecticut English Department, Professors Frederick M. Biggs, Lynn Bloom, Clare Eby, and John Gatta.