It's Me Again, Margaret...  

Copyrights and trademarks basics as they apply to TpT sellers were first addressed in a two-part newsletter back in April 2010 and then again in another two-part series in July 2011. In case you missed them, here they are in the archives: Copyrights 2010, Trademarks 2010, Copyright Catch-up Part 1, Copyright Catch-up Part 2. Since then several things have happened to bring the subject to the top again.

     Back in February, a group of K-2 TpT sellers received a disturbing e-mail from a popular clipart supply company stating that their Dr. Seuss look-alike product had come under attack by Dr. Seuss Enterprises, L.P. The clipart, they warned, constituted a copyright infringement and could not be used. The letter went on to suggest that the name Dr. Seuss itself was trademarked and could not be used without permission.  Though the name is attached to a series of children's clothing, I could find no indication that Dr. Seuss, the author's name, is trademarked. Since no one in the TpT family had access to the original e-mail, we can't know the exact nature of the conflict. Nevertheless, the situation was stressful and confusing. Many sellers removed all Dr. Seuss items from their stores. Essentially, Dr. Seuss Enterprises, L.P. shot themselves in the TpT foot on this one!

     A few weeks ago, Laura Candler received an e-mail from an intellectual property rights lawyer concerning her use of the Accelerated Reader® name on her website. They directed that she must include a statement on her home page and every page where the program was mentioned to credit Renaissance Learning as the trademark owner or AR and Accelerated Reader®. For more information about Laura's experience and her decision, read her blog post.

     E-mails like the one Laura received can be frightening, especially if it demands payment of a fine to avoid going to court and being sued for thousands of dollars. Read more about this scare tactic by Googling "copyright infringement letter." You'll find some interesting articles.  

     Let's make it clear that no TpT seller has been sued. We do need to take note, however, of how the waters can get muddied when our work gets entangled with copyrighted and trademarked materials.

     Some TpT sellers continue to write and post products based on other commercially published resources, such as The Daily Five™ and Thinking Maps® [Aside from Paul: Yes, I now know I mistakenly promoted a seller's Thinking Maps as original in the newsletter, an oversight. You can probably make and sell thinking map-like materials, but you need to call them something else and make them your own.]  The doctrine of "fair use" states that copyrighted materials can be reproduced without the author's permission for teaching purposes. Long before the internet, educators wrote supplementary materials for similar programs to use with their own students in their own classroom. However, offering such products for sale, in my opinion, does not fall under the fair use doctrine. The programs in question already provide teaching suggestions, lesson plans, and student handouts. Writing and selling materials designed to be used with such programs, to me, constitutes competition that will result in the loss of income for the copyright holder and is, therefore, a copyright infringement.

     Still, the "derivative work" concept of the copyright law creates confusion. When a TpT author writes teaching materials for a children's novel such as Charlotte's Web, for example, this is clearly a derivative work. The novel itself is copyrighted. There are no lesson plans or teaching suggestions involved. Teaching materials for the title, as the law states, differs "sufficiently from the original. . . or contains a substantial amount of new material," and therefore is a legally copyrightable product. The law also states that "Making minor changes or additions of little substance to a preexisting work does not meet copyright requirements." When we write lessons for a program that already offers teaching materials, have we created copyrightable derivative work, legally met the fair use standards, or perpetrated a copyright infringement?  

     Recently, with the release of the movie version of The Hunger Games, many TpT teacher/authors have been busy writing and downloading dozens of new items for this title. The problem is that some of the products are loaded with movie stills and /or book cover images right-clicked from the internet. The doctrine of fair use could possibly apply here to an individual teacher in a single classroom, but when commercial gain is involved and permission from the copyright holder has not been granted, we're ascending a slippery slope! 

   FYI, Tracee Orman requested and received permission from Scholastic early in 2009 to usebook cover images from their press package. Her Teacher Share contributions brought Scholastic a lot of traffic and made the arrangement mutually beneficial. Later, Lionsgate Entertainment Corporation found Tracee's fan site, contacted her, and gave her permission to use promotional movie stills. Before she added any fan-created art to her Hunger Games PowerPoints, she got permission from each and every artist. Being legal is definitely possible, but it requires some deliberate planning and patience.

     Sellers are also using dozens of stills from other movies and gleaned internet photos in their products, especially their PowerPoints. You'll find Angry Birds™, Disney® stills, and images from various textbooks, to name a few. Without specific permission to use the material, the seller could find himself in a pickle. Even something as simple as a photo of a CocaCola® bottle, or any other product that involves a trademarked icon, is copyright quicksand.

     The truth of the matter is that we must have access to quality images in order to create compelling, kid-friendly products. Purchasing them can be super expensive and getting the required permission is time-consuming. It's a dilemma created by the vanguard nature of our work, but our position as a global cyber community can also be part of the solution.

     Several weeks ago I make the short drive from my home to Henry River Mill Village, the North Carolinafilming location for The Hunger Games' District 12. I took dozens of shots, the best of which I will be offering to TpT's Teacher/Authors at a reasonable price for private and commercial use. In making notes for this newsletter, it occurred to me that our group has access to an endless number of interesting locations all over the world. There are those among us who can breeze over and capture an image of Fifth Avenue in New York City or San Francisco's Lombard Street. The Pacific Northwest and Spirit Bear territory are surely close by for one of our own. So are the Grand Canyon, the Florida Everglades, Stonehenge, kangaroos running wild, the breathtaking Canadian wilderness, etc. Teachers vacation in recreational and historic locations. Some have talents in staging compelling still life shots, snapping close-ups of insects at work, or photographing interesting faces. The possibilities are enormous.

     If only a few hundred sellers offered original photos with suggestions for use, can you imagine the products we could create? Many children's novels have specific geographical settings. Images that illustrate action verbs, lively adjectives, prepositional phrases, and imaginative stories could be waiting in your back yard. How about photos of landforms, flora, and fauna for science teachers? Students could create math problems based on a target skill and a photo. Need a particular set of images? Then ask for them on the site's New Product Request page. We can help each other build fully legal image catalogues. What are we waiting for?

   From my point of view, the time has arrived for us to disassociate ourselves from all commercial products, names, and/or images that could conceivably lead to copyright or trademark entanglements. I am not suggesting that everyone rush to zap all suspect products from their stores as we are still learning to navigate our way around this issue, but why should we continue going into this nebulous zone when we don't have to? Let's refocus on our on-going goal of creating original teaching materials based on individual expertise, style, and experience.

Margaret Whisnant                     

        TpT Seller                                 

PS from Paul

I know I've been a cause of some of the confusion, and I may cause some more now! I want to draw a line in the sand in advanced territory. But there is confusion about where we can draw that line exactly. It stems from the lack of clarity that exists in copyright law, especially as it relates to teachers selling their own materials to other teachers. It's such a relatively new phenomenon (though many have been doing it for years) that there isn't any case law on the books to use for guidance. One expert, Renne Hobbs, in her book entitled Copyright Clarity, says it's actually ok to use copyrighted material in teaching materials that you sell as long as you have created a fully "transformative" work. 

What constitutes a "transformative" work, you ask? Well therein lies the rub... it's case by case! Did you take the original piece of intellectual property and create something in the same vein, in the same market, for the same customers? If yes, then it is not transformative! Thinking Maps come to mind as they have been trademarked and are for classroom use. If you are creating "thinking maps" and using that name, then this is not very transformative and you are now in competition with the original creator and copyright holder. But if you have taken a picture of a Coke bottle and used it for a lesson on having a healthy diet, this is certainly transformative as you are using it for an entirely different purpose than how the Coca Cola company uses it, you are not competing with Coke as you are selling a lesson plan to teachers rather than sugared water to consumers, and your product is beneficial to the public good. I think a judge would allow this (especially if you have taken the picture yourself rather than used someone else's), and I'm willing to support you if your are willing to take this risk. A pic of Angry Birds in a lesson plan would also likely meet the "transformative" threshold, too, as Rovio, the creator of Angry Birds, is not in the lesson planning business. Are you going to go to jail if you continue to sell materials that aren't transformative? No. Are you going to be asked to take your product down? Maybe. If you don't take it down, will you be sued? Maybe. Will going to court cost money? Yes. 

Here's the thing. Margaret is 100% right. If you don't want any problems or to have to spend any money on a lawyer, then stay away from trademarked and copyright intellectual property. Take your own pictures, make your own drawings, come up with original titles (always), get permission... but if you can't do those things, then make sure you are creating something "transformative". Don't imitate your fellow TpT Sellers. Don't piggy back on other education program. Be original in your expression and in your style. But remember, too, that mashing is a part of the new world order, so don't run fully in the other direction either! 

How's that for mixed messages? Like I said, it's complicated and there is no simple answer other than be transformative.

Let's talk about it on the Forum here.