Flat copyright

Q: A teacher has approached me and asked me about copyright restrictions if she creates a version of Flat Stanley, calling it Flat _____ (our governor’s name), featuring a photo of the current governor, and the body of a cartoon character. Her idea is to take pictures of Flat ______in our school, post those pictures, and write an article for publication explaining that the governor does not visit public schools to get teachers' perspectives on what they're doing in the classroom. Can we use the governor's photo without his permission? Can we use the Flat Stanley concept without the permission of the creators of Flat Stanley?

A:  This is a conceptual discussion of the use of book characters in political discourse. A use such as this in a political sense is likely satire and is generally considered fair as long as you are not making a profit. Using a photo of a sitting politician is perfectly fine since politicians give up some of the rights to privacy that ordinary citizens and even entertainment celebrities have. The flat idea (this example isn’t using Flat Stanley, it is making a flat character of the governor) is not protectable. Any number of creators can make a flat character.

Book images in book trailers

Q: Are students able to use book images in book trailers they create? Since they are creating something new with those images, I think this is considered transformative.

A: While the use of book images in a trailer may be considered criticism or commentary, I doubt that the use of the book images would be considered transformative unless the students are doing something like incorporating the images into a collage. I expect that the images will be used pretty much as they come from the book. Criticism, commentary, and transformation are all parts of the first factor of a four factor fair use assessment. In assessing fair use, you must consider all four of the factors. I know that there is some group of the library community that boils down all school use to whether a given use is or isn't transformative, but that view does not coincide with either the law as written or the common law—law as interpreted by the courts. To do a complete analysis, you need to continue through the other three factors.

Factor two, the nature of the copyrighted work, would weigh against student use. The work being used is creative, and creative works are protected much more highly than factual works.

Factor three, the amount and substantiality of portion of the work used as related to the copyrighted work, is a little unclear in this situation. You are probably using the entire image (the whole photo or the whole painting/drawing), but is that a free-standing work or is it just a small part of the book? One of the cases typically referenced for this issue is that of Bill Graham Archives v. Dorling Kindersley, Ltd. where the court assessed several Grateful Dead posters used as thumbnails on a timeline. The court analyzed each image separately, but the posters were originally published as separate works, not published simultaneously as related illustrations in a book. So you will need to investigate whether the images are copyrighted as part of the book or if the images are their own works. If you are using all of a single, copyrighted image, this factor would weigh against you because you are using all of the copyrighted work. But if you are using one or two images or parts of images that are part of the book as a whole (such as when the author is also the illustrator) then this factor is more likely to weigh in the student’s favor.

Factor four, the effect of the use on the potential market for or value of the work, can come in against you if your use of the image would take the place of the original, including avoiding a license. So if the student’s use could take the place of someone getting a license for the same work, this factor could weigh against the student’s use. Typically a student use in class would never be able to do that, but if the trailer is distributed widely, such as on the open Internet, the reproduction of enough of the images from the book or reproduction of even a single free-standing image could cause this factor to go against the student use.

You will have to go through this analysis for each trailer, and possibly each image in the trailer.

This column is designed to provide accurate and authoritative information regarding application of copyright law in schools. Nothing in this column is intended to constitute legal advice, and nothing herein should be considered legal advice. If legal advice is required, the reader should consult a licensed attorney in his or her own state. Neither ABC-CLIO, LLC, nor the author makes any warranties or representations concerning the information contained in this column or the use to which it is put.