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It's Me Again, Margaret...
Some Thoughts about
Clipart and Copyright Issues
for TeachersPayTeachers Sellers
April 2010
Intentionally complying with copyright laws is part of the group ethic we
follow as professional educators and writers, so it wasn't surprising when a
recent survey of potential TpT sellers revealed a hesitation to post items
without further clarification of certain copyright issues. The legality of including clipart and
non-original product content were among the most mentioned. The hoopla over who owns a teacher's
work also made the list of concerns.
As a result, Paul
Edelman, TpT's founder and General Manager, has requested a newsletter that
addresses these issues. Please keep in mind that I am neither a lawyer nor a
copyright authority. You must ultimately
make your own determinations before offering your work as a commercial product. What I can do is report information that
I have gathered through research and experience.
Copyright laws are written in Standard English with reasonable vocabulary,
but as is the case with many other legal documents, people argue over their
scope, applications, and precise meanings. The controversy is not limited to novices. It involves reputable judges, seasoned
lawyers, and JK Rowling. We're in
good company. But amid the
confusion, there are some criteria that can help us determine if our products
meet the spirit and requirements of copyright laws.
Clipart in Commercial Products
Experienced and potential sellers alike
see the value of including clipart in their products. My intentions were to put
together a set of precise, fact-based guidelines that would consistently lead to
sources of legal clipart. Instead,
my research revealed how complicated this topic has become. The onslaught of
the internet, the availability of electronic files, and the 1997 No Electronic
Theft Act (NET Act) have twisted the old cut- and-paste days into a giant snarled
pretzel. It seems we must now examine
each clipart resource individually and then validate its legal status or usage
guidelines before proceeding.
Let's start with the following possibilities:
Microsoft Clipart
Some aspiring TpT authors
wondered if they could legally use Microsoft Clipart in their products. Googling "Microsoft Service
Agreement" and then going to "Materials that Microsoft Licenses to You" reveals
Item 14, which reads:
14. Materials
that Microsoft Licenses to You
Media Elements and Templates. You may have access to media images, clip art,
animations, sounds, music, shapes, video clips, templates and other forms
of downloadable content ("media elements") associated with the service. If
so, you may copy and use
the media elements, and license, display and distribute them, along with your modifications as part of your software
products, including your web sites, but you may not (i) sell, license or distribute copies of the media elements by themselves or as part of any collection, or product
if the primary value of the product
is in the media elements;
(ii) grant customers of your product any rights to license or distribute
the media elements; (iii) license or distribute any of the media elements
that include representations of identifiable individuals, governments,
logos, initials, emblems, trademarks, or entities for any commercial
purposes or to express or imply any endorsement or association with any
product, entity, or activity; or (iv) create obscene or scandalous works,
as defined by law at the time the work is created, using the media
elements.
I am including the entire script so that my interpretation of the bold
print words can be viewed in context. To me, this paragraph indicates that we
can, indeed, use Microsoft
clipart in our products. What we cannot do is sell the clipart
itself or use it as the primary element of a product. I will appreciate any feedback concerning the Microsoft
Clipart library, especially if it is in disagreement with my
interpretation. I will pass any
new information along in another newsletter.
Public Domain Clipart
A lot of black and white clipart is classified as public domain, which means its original copyright is no longer in
effect, and it can be used by the public freely and without penalty. In general, this situation covers works
created before 1923. There are piles
of free and inexpensive public domain clipart available on the internet. The challenge lies in determining its authenticity.
Much to my chagrin, I have learned
that the large pool of public domain clipart has been muddied by the 1997 NET
act. If a copyright-free image
(excluding photographs) is scanned and electronically edited by hand, it
becomes a derivative work and is thus copyrightable by the editor. Some companies, such as Dover
Publications, offer many of these updated images on CD's. Commercial use of the Dover images is limited
to no more than ten items in the same publication. Special
permission is required beyond that.
Several online sources of free public domain clipart that you might want to check out include wpclipart.com,
pdclipart.com, openclipart.org, acliparthistory.com, and freeclipartnow.com. Always
read the "Terms of Use" or "License" page on any free site. If there is no guarantee that all items
are in the public domain, then some of a site's images could have been gleaned
and added without verifying its copyright status. A quick visit to the sites listed above will reveal such
disclaimers as well as guarantees. An internet search for "free clipart" or "copyright free
clipart" will render in a long list of possibilities. Again, it's a matter of gathering information and then
making a decision.
D.J. Inkers Clipart
One TpT seller asked about D. J. Inkers
Clipart. The Terms of Use
statement on their website clearly states that this series absolutely cannot be used commercially. Catering to crafters, it is for personal use only.
Subscription Clipart
A number of on-line companies offer subscriptions to "royalty free
clipart." This is not the same as
"copyright free." Like Dover
Publications, these enterprises have taken advantage of the reformatting rule
for public domain images and now claim copyright. What they sell is a license to use their clipart more than once without paying a royalty with each use. In most cases, subscribers may use the images in commercial
e-books. As a professional writer,
I subscribe to two of these rather-expensive services because of their super-convenient
search capabilities and their millions of available images. For those who are
interested in going this route, use "clipart subscriptions" as a search topic.
Bottom line, TpT sellers can find perfectly legal clipart for their products
with a little prior knowledge and internet surfing time.
Copyright Infringement Concerns
A second common topic that
surfaced in the seller's survey was concern as to whether the content of a work
being considered for TpT posting might pose a potential copyright
infringement. The key phrase is
making such a determination is original work of authorship. If
you created the content, the formatting, the components, etc., you own the
copyright, and it's yours to sell.
The following elaborations are based on specific questions submitted to
TpT:
IDEAS are not copyrightable.
ORIGINAL WORKS based
upon preexisting IDEAS are copyrightable.
Walt Disney, Beverly Cleary, E. B. White, and Kate DiCamillo all created
and copyrighted original works based on the preexisting idea of "anthropomorphic mouse." Anyone who chooses may write another original mouse story, but he/she may not use the characters,
plots, fictional events, etc. created by any other author(s) as any part of a
new story. To do so is copyright
infringement.
TpT products are perfect examples of how copyrightable original works of
authorship are all ultimately based upon preexisting ideas. A customer searching
for spelling lessons, for example, would find dozens and dozens of products. "Spelling lessons" is an idea. Nobody can claim copyright and
essentially block all others from creating materials for teaching spelling. On the contrary, the law says that
anyone may produce an original work of authorship based upon the idea of "spelling lesson" and claim copyright privileges
the instant it is created. Reformatting,
rearranging, or "improving" another's work, however, is not an original work based on a preexisting idea. To
claim otherwise constitutes a copyright violation!
The DOCTRINE OF FAIR USE does not allow commercial gain.
COMPILING or MODIFYING the work of others is NOT an
example of an ORIGINAL WORK.
As teachers, we continuously purchase copyrighted materials (with our
own money!) and make copies for classroom use. Reproducing such materials for the purpose of teaching is
specifically allowed by the doctrine of "fair use" (Section 107) However, cutting, pasting, or keying in such materials as
part of a work intended for sale does NOT qualify as "fair use."
Many
of us gather and modify free materials and ideas from the internet. When considering these materials as TpT
products, it's wise to take a second look at its content. Remember that "free" does not necessarily
mean "copyright free " and that "modifying" existing material does not produce
an original work. However, using an
interesting idea from the internet
(grocery store math, for example) to create your own unique lesson is a
different story. Now we are back
to the basic idea-If you create an original work or authorship, you own it, and you can sell it.
TEACHERS own their work!
Some school systems have been able
to block educators from selling self-created teaching materials by citing the
"work for hire" portion of the copyright law (section 101). In other such clashes, teachers have
successfully gained full acknowledgment of their rights of ownership. Such conflict can be an intimidating
prospect for teachers who are thinking of posting products on TpT.
Elizabeth
Townsend-Gard, associate professor and co-director of the Center for
Intellectual Property Law and Culture at Tulane Law School in New Orleans and
legal advisor for TeacherPayTeachers, points out that "work for hire" has
always allowed an exception for teachers.
Though educators have traditionally owned the rights to their own curriculum,
nobody cared because they weren't making money. The internet revolution and its
opportunities for profit have created controversy from a long-standing nonissue. Both Ms. Gard and Paul Edelman believe
the teacher exception will eventually be tested in court, but it will end in
the teacher's favor.
In the meantime, Ms. Gard states that "all work created by teachers-and others-is automatically copyrighted from the
moment it is created, lasting for the life of the person who created it, plus
70 years."
Green Light!
Invest some time identifying a few good sources of legal clipart. Commit your original teaching
strategies, experiences, and insights to copyrightable form. Share a free item or two with your TpT
colleagues. Go ahead and post your
products for sale. Let the
detractors argue among themselves.
You will be too busy earning extra income to notice!
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Margaret Whisnant
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