Photo: Mannie Garcia (AP), Image: Shepherd Fairey

Another day, another Fair Use issue in the headlines. After working with my graduate students over the past six months I’m left with the feeling that most of them approach the subject of copyright as something that the big media companies hold over their heads, preventing them from using the music that they want in their videos or images on their websites. It’s an eye-opening experience for them to realize that there are options for them to use, such as creative commons, where they can find quality media and stay well clear of the gray area that is copyright law. Good times. I cover copyright and Fair Use over two sessions every month and by the end everyone knows that Fair Use is not a right but can be used as a defense if/when one is sued for a copyright violation. Or course none of my students want to be anywhere near a court, having to defend themselves versus some scary media conglomerate.

Then the last week of February, as if I needed a textbook case on Fair Use, I stumbled across an NPR interview of the artist, Shepherd Fairey, who was behind President Obama’s “Hope” poster that rose to iconic status during the election. Seems that the Associated Press was threatening to sue Fairey for the use of the photograph that he used to create his poster. Just before NPR ran the story Fairey decided to beat AP to the punch and sue AP claiming that his use of the photo was covered under Fair Use. To make things even more complicated, the photographer, Mannie Garcia, is suing AP claiming that he was a freelancer and not an AP employee when he shot the disputed photo and therefore he is entitled to compensation from this litigation. Let’s say it together: Fair Use is not a right but a defensible position. Again, Fair Use is not a right but a defensible position.

I asked photographer and TWiT contributer, Scott Bourne, his take on the case (via Twitter) and he said, “I think the artist stole the photo and his fair use claim will end up costing him treble damages. All depends on whether AP owns pic.”

When NPR’s Terry Gross asked the photographer of the Obama image, Mannie Garcia, his take on Fairey using his photograph he said, “[It's] crucial for people to understand, simply because it’s on the Internet doesn’t mean that it’s free for the taking, and that just because you can take it, means that it belongs to you.”

A cursory survey of opinions online from the likes of Milton Glaser on BoingBoing, Mark Vallen on Art-for-Change, The Institute of Contemporary Art/Boston, and Chal Pivik on the Los Angeles METBlogs, seems to show that the more the pundit knows about the actual steps or changes to the photo that Fairey made to create the poster the more likely the writer will come down on the side of Fairey’s Fair Use claim. Finally, NPR did an excellent job covering all of the angles of the story, finishing up with a discussion with law professor Greg Lastowka on the case and Fair Use. Click the player below for the complete NPR recording.

NPR: Fresh Air: Shepard Fairey: Inspiration Or Infringement?

Los Angeles Times Video: Hope: Shepard Fairey and Barack Obama

Postscript: Had my research on this story ended with the NPR piece I would have been left with a different image of Shepherd Fairey than the one I gained via a series of videos that were created long before Obama campaign, when Fairey’s main claim to fame was his “Andre the Giant: Obey!” world-wide sticker/poster/street art project. Fifteen-plus arrests later for “street art” activities and it’s little wonder that he’d be a media darling while at the same time being in trouble for taking someone’s else’s photograph and not thinking twice about using it to make the Obama: Hope image. When he says, “Icon” for the G4 series of the same name, implying his own status in the art/street culture world, I’m put off by the arrogance and willingness to play both sides of the media. When all of this plays out the title of his next video might be, “Shepherd Fairey: Oops.”

Sources:
Obama photo: Mannie Garcia (AP)/Obama image: Shepherd Fairey, retrieved from http://www.boingboing.net/2009/02/09/milton-glaser-weighs.html on 04/09/2009

Shepard Fairey: Inspiration Or Infringement? NPR Fresh Air interview, retrieved from http://www.npr.org/templates/story/story.php?storyId=101182453 on 02/27/2009

Hope: Shepard Fairey and Barack Obama – Los Angeles Time interview/video retrieved from http://www.youtube.com/watch?v=q_EOzZ9iaJQ&NR=1 on 04/07/2009

ICONS: Shepard Fairey, YouTube video retrieved from http://www.youtube.com/watch?v=ZNv-9IOBZZo on 04/07/2009

        

Since the very first month of teaching my graduate media course at Full Sail University my students have struggled with the vagueness and conflicting messages surrounding the topics of copyright and fair use. Tasking educators, many of whom are very new to online anything, to creating an unending number of audio podcasts, videos, blog entries and assorted media projects and then telling them that they cannot use any images, music or videos that they might find on the Internet is like inviting them to a party and then telling them that they are not permitted to having any fun. it’s downright confusing. Then for me to try to be authoritative on what is permitted and not permitted, while knowing that the subjects of copyright and fair use are life-work of an army of lawyers and policy makers, makes the whole thing downright silly.

So after one of our class sessions, one of my more media savvy students made the following comment in his blog:

Copyright is such a touchy subject, it’s getting crazier and crazier, even for students, to try to use resources. It seems like it’s going to get to a point where you have to have a law degree just to understand when and where you can use an image or reference someone else’s works. One solution is to always create your own work and I’m going to try to do that more often, so that I really don’t have to rely on others. But it [the session] really showed us that there are quite a difference of nuances that we really need to be aware of and really pay attention to, especially in our work now (Quinto M.)

I’ve had a number of students who are band, drama or media teachers who have to pay rather large fees out of increasingly non-existent budgets so that they can do their job and teach the next generation of musicians and artists their craft. The more I thought about it and Quinto’s comment about not relying on others the more I got pissed off that this whole copyright thing is backwards. I added the following comment to Quinto’s blog:

This is one of those subjects that one can go on and on and on about. The more that I think about it the more that I’m convinced that there needs to be a special “educational” license to use media because the first step that any artist makes, going back all the way probably to the cave paintings in Lascaux, is to carefully copy the techniques and works of the masters. Every artist owes their livelihood, if they are fortunate enough to make a livelihood to some teacher who taught them their craft. How dare the artists demand payment from the teachers! There would be no artist collecting a fee if it weren’t for the teacher who taught him in the first place!

Sources:
clipart: Task Force Clip Art (c) 1995
image: Quinto Martin 2009
http://web.me.com/tatt2q/Q_Blog/Blog_Week2/Entries/2009/3/11_Copyright_Schooling.html

        

One of my students recently wrote about his experiences as an online curriculum development person who works for an online university that has a division that partners with traditional higher-ed institutions to help them bring graduate programs online. He noted that the upper management was all crazy about stuffing as much media into every course, then joked that they were much less energetic about paying for the media or what it takes to create it. That’s kind’a typical. Then he made the following comment about student usage of this media content:

Careful analysis of click-tracking data is showing that only around 50% of the students are actually watching the media elements integrated into the courses. We are trying to understand the reasons why students aren’t watching the media. Sometimes, it is clear that they are just not seeing the value in the media pieces. And admittedly, not all the media is uniformly excellent. However, we are also finding that our online students are incredibly task-focused. They do exactly what they need to do to complete the assignments and nothing more. As an online student myself, I guess I understand that one! (d. lungren)

My words of wisdom to this student:
Some very valuable analysis here. The quality level and relevance to subject being taught, or even just the perceived level of importance of the media really makes a difference. It’s that careful incorporation of content and delivery methods that can get easily lost in the pursuit of having all kinds of “shiny things” on one’s educational website. A lot of folks on the top of the institutional food-chain often confuse what works well for student learning versus what looks good in the PR video clip. Hell, look at any educational institution that presents itself as promoting “technology” and the first thing they’ll show you is there computer lab and shiny boxes. But ask them to show you how the tech is used across the curriculum and your likely to run into institutional double speak. In fact… I did a whole video on just this subject:

Again, thanks for the inspiration. Great job. jbb

Sources:

http://web.me.com/dlungren/Site_5/Musings/Entries/2009/2/14_thoughts_on_media_and_online_learning.html#

        

I got my papers a few weeks back & finally turned them in. sad [Sound of a door closing behind me]

courtesy LBUSD - RIP

        

I live in my email app and my browser, but don’t expect me to visit your site everyday just to check to see if you have new info. One of the reasons I like Twitter and spend more time on Facebook is because they come to me and tell me when new content is posted. Expecting me or worse, trying to force me to come to your site to check for new content feels too much like Web 1.0 to me. Strangely, even with this attitude and my constant need to have a sense of what’s going on in Tech & the World, I’ve never bothered to use the one tool specifically set up to bring the news to the user: RSS (see the video below for a complete explanation of RSS). I’ve gotten away with using Twitter as a kind of RSS feed. Along with the podcasters, I also subscribed to CNN, Ars Technica, and the AP. And having the constant flow of data along the left pane of my browser or easily accessible on my phone works just fine for me. Alas, things probably would have stayed that way were I not now tasked with tracking the musings, thoughts and frustrations of my 57 students scattered among 57 blogs. Damn. So I put out the call today amongst my learned colleagues for their choice in RSS apps and the stumbled upon a solution right under my nose.

Before iTunes entered and then destroyed the market, there was a budding little industry of RSS readers that would also pull down your favorite podcasts. Someone actually suggested an app that goes back to those crazy days called Juice (formerly called “Lemon” and before that something with the word “iPod” in it until the cease and desist letter arrived). Cute, but it’s not 2005. The next contender was the web app, iGoogle. iGoogle was the EMDTMS team favorite until it was redesign and the tabs moved to the side of the interface. Blah. I didn’t care about the tabs, but I did care that I couldn’t rename the labels to my students’ RSS feeds because they had the whimsical tendency to name their blog things like “Catchin’ the tech wave” and other completely useless names, making it completely impossible to be able to track their blog entries. Nyet. Next on the hit list was Netvibes. Very flexible, I loved that I could put my students in separate tabs per their sections and spent the better part of the afternoon getting one section set up. When I started setting up a second section it dawned on me that this was way too hard and my beloved tabs were going to make it more complicated to track the whole group. Ugh. Then I noticed in the sidebar on the left side of my screen that Flock had a Feeds panel all set up and ready to go. In fact, when I was opening my students blogs and then clicking the icon to get their RSS feed, Flock had been giving me a button to push to add the feed to list in the left pane the whole time. Ack. I got all three sections entered and in handy little folders in a third the time it took to do one section before. Damn. Flock, for the win!

The folks do a great job explaining stuff like RSS…

        

One of three monitors filled with data by jbb

When I began studying for my doctorate in 2004 I was done with the reigning reference software of the time, Endnote, because that piece of dookie never quite worked as advertised. I found an interesting mac-centric reference manager called Bookends that was bundled with word processor geared toward scholarship called Mellel. I never really got the chance to put either program to the hardcore test in part because I started using Notebook for all of my note taking and draft work and then I took a leave from the doctorate, so not so much need for either app. I guess I’m going to get a chance to really test the hell out of all of these apps over the next few days and weeks.

Alas, as much as I love my beloved Notebook (all of the planning and design of my course at Full Sail was put together in Notebook, then tested in Dreamweaver before going live), I find that I’m doing more and more gathering via web-tools like Evernote, where the content stays on the web, accessible from any device and not trapped on a single machine. I’ve actually pretty much switched to editing my blog using the web-based Wordpress editor built into the blogging platform and use my resident-app, Ecto, for a couple features missing on the web-app and as a form of local backup of my entries. I can even imagine moving my dissertation composition to something like Google Docs and that’s heresy from someone who’s chased after the latest and greatest word precessing features going all the way back to WordStar and NewStar on my old Kaypro computer. Wow. Scary thing, vendors like Evernote, are calling their product our “external brain.” Onward and upward.

        

Amazon’s Kindle 2 has begun arriving in happy gadget freak’s homes this week. Announced on February 9th by Amazon.com founder, Jeff Bezos, the Kindle 2 is reported to have cleaned up some of the style-points that version one suffered from with a thinner, lighter device and boosted internal memory from 512 MB to 2 GB. But the $359 price that Amazon is keeping for the device, many tech writers say it’s still way too high and will get in the way of the device taking off. But now that the devices are showing up, the geek pull toward shiny electronics seems to be taking hold. I know I’m feeling it.

Following the initial announcement the crew at CNET’s Buzz-Out-Loud podcast noted that it was very Apple-like in it’s form, verbiage and “message” control. The promo video/commercial (above) that I saw on Engadget certainly reminded me of an Apple ad. Question is whether Amazon is going to make the same Apple made 25 years ago when they assumed that everyone would pay extra for a revolutionary device (in Apple’s case the original Macintosh). That mistake almost spelled the end of Apple and we would have missed out on all of the revolutionary things Apple has done since then. As an educator and technologist I see a potential with the Kindle that we cannot afford to miss. And it goes way past the Kindle being a shiny new technology thing.

When I first came to Full Sail University I heard about a program director who asked his students if they had a choice would they prefer to get their texts as books or as electronic books on a small e-book device like the Sony e-Reader or the Amazon Kindle. To his surprise the students, pretty much to a person, choose plain old fashion books over the e-books. In my previous job teaching in a traditional environment, I wouldn’t have been too surprised at the choice of paper books over little electronic devices, but at a place as advanced as Full Sail I would have expected a different answer. Then again, as usability experts have been saying for some time (and I’ve been writing about), people don’t read from computer screens, they scan and skim but don’t read long passages. And in the public’s mind, whether it’s a 17-inch LCD or a e-Book’s “electronic paper,” they seem to perceive the experience to be the same. Even more than the initial expense of the device, many have said that they can’t imagine curling up with an Amazon Kindle like they would with their favorite book. I can’t argue with that. But as someone who loves having bookshelves filled with hundreds of books, there is something wasteful about large institutions, such as government agencies, universities and school districts, continuing to deliver content in such inefficient ways.

Let’s take my former employer, Long Beach Unified School District, a Southern California K-12 district with 93 schools and over 90,000 students, I’ve seen one of the giant warehouses used for district publications and textbook storage and transportation. This was a very large operation requiring a lot of space, trucks and manpower. I have to wonder, what would be the cost differential between managing, distributing and maintaining one small device per student versus housing, delivering, managing, and repairing four to seven textbooks per student? I don’t have the budget figures for how much it costs LBUSD for the distribution center property that I saw, many acres of valuable Southern California real estate, or how much it must cost to maintain a fleet of trucks and the manpower to keep everything running, but I’m willing to guess that even at retail prices the $360 Kindle2 would shave a significant chunk off the cost of getting text to students. So why is no one considering this particular option?

Let’s consider who would lose out if school districts like LBUSD were to switch from shuffling around mega-tons of dead trees to providing their students with one small electronic device? Well, most of the warehouse employees and truck drivers would probably be looking for different employment opportunities, but I don’t sense that they have the political clout to keep something like this from happening. No, but if the whole cost structure of creating and providing students with textbooks were to collapse the ones likely to complain the most would probably be the politically powerful textbook publishers. In California alone I imagine that billions of dollars of business is being conducted by textbook publishers who in turn are more than a little happy to support the political agencies assigned to regulate the textbook trade. Now imagine what would happen if the whole physical infrastructure of getting educational content to students was to go away. How would the publishers maintain their profit margins, er, I mean justify their costs? Textbook authors work for nothing and the advisory committees for the publishers and the school districts are generally volunteer. If the fiction market is any indication, where the Kindle version tends to be one-third to one-fourth the hard cover cost, the move to something like the Kindle would be pretty much like how a giant rock falling from the sky wiped out the dinosaurs. It would change everything.

Going beyond the political stranglehold textbook publishers have on curriculum, imagine how much more interactive and timely (and correct!) science texts could be, for example? Course design and implementation would go from a top-down roll out to be a collaborative process with the classroom teacher, curriculum writers, and academic subject experts having meaningful roles. Because the expense of updates and error corrections would be wiped out, the ongoing nature of what it means to study a particular academic discipline would actually be reflected in the text. Instead of an impersonal, “fixed” text, edited (to death) by committee, the passion of the classroom teacher for the subject and the text book writer could be more readily communicated in the text. I know it’s heresy, but classroom teachers would actually be able to pick the texts that would work best with their students and not be restricted by some agreement made by some agency who knows nothing about her students or their learning needs. It would change everything. The dinosaurs aren’t going to like it, but we can’t afford to let ‘em continue to keep us tied down.

Source: About Long Beach Unified School District, retrieved 02-27-2009, http://www.lbschools.net/District/

        

When Internet Anthropologist, Michael Wesch, popularized the notion that YouTube was essentially about people teaching other people “stuff” he probably didn’t have the following video tutorials in mind: