Copyright & Fair Dealing Project: Image Use FAQ

Disclaimer: All of this content is part of a graduate project and designed to be an introduction to the basics of copyright and fair dealing. While compiling the information for the FAQ, a number of differences were found across universities in Canada due to different licensing agreements or different policies in place. Questions on how copyright impacts your instruction can best be addressed by your institution, the institution’s copyright office, or a lawyer.

 

Image Use FAQ

  1. Can I use this image in a presentation?
  2. Can I make a copy of this image and distribute it to the students enrolled in my course?
  3. Can I provide a link to this image or video for my class?
  4. I’ve created an assignment that involves students creating work from an existing artwork. Is this going to be an issue?
  5. We have a class exhibition at the end of the year and some of the works created are parodies of well-known artworks. Can these pieces be displayed?
  6. How much of this resource can I copy?
  7. Colouring books and puzzle books are so popular right now! Can I make copies instead of completing the purchased version?
  8. I purchased supplemental material that goes with course content. Can upload these e-resources for students and colleagues?
  9. This image says it’s creative commons, but I’m not sure that’s a reliable statement. Can I still use this image?
  10. What are some good ways to find images I’m permitted to use?
  11. Do I really have to cite images in a presentation?
  12. Why is this so complicated?

 

1. Can I use this image in a presentation?

There are different considerations for this question, some of which are addressed below. Of course, an image (or any resource) must be legally obtained in order to be used in your presentation. This may take a few extra steps, but is an important factor. Another thing to know is that all images need to be properly cited like any other source of information. Some people prefer to do this at the bottom of the slide or below the image, while others may create a separate image reference slide at the end of the presentation. You can use any writing style guide, such as Chicago, APA, or MLA, but a citation is required.

Using the image in a presentation in a lecture hall or classroom

Educational use falls under the exceptions to the Copyright Act as fair dealing and, according the two-step fair dealing test, the purpose of the use would be education. Other considerations would be the amount of a resource being used and whether or not there is an alternative, non-copyrighted equivalent available. Going beyond the classroom, you may want to consider other factors like whether or not the slides will be made available to students or colleagues. In any case, the two-step fair dealing test is designed to help you think through possible factors; if you are concerned about potential infringement, consider these questions as preparation for meeting with your copyright office. For a good discussion of the two-step fairness test, consult Murray & Trosow 2013 listed below.

Using the image in a conference presentation

Again, the purpose of the image use would be education and this is considered fair use in Canada. The considerations would be the same as above: amount of use, alternative options, and what content will be available after the conference. Some presentations are publically available afterward and this may not be considered fair dealing of downloaded images.

You may have special considerations if you are a Canadian scholar presenting in the United States. We each have, understandably, different copyright laws, but the origin of the presented content is usually taken into account. If you are a Canadian scholar presenting at a conference in the United States, fair use of images for non-commercial, scholarly purposes is similar to Canadian law. If your presentation incorporates music or film clips, however, you may want to get advice from your copyright office. In general, American copyright law uses language that is more open-ended than ours and there are similar allowances for fairness when using material for education or scholarly purposes.

Where did you get the image?

When considering the use of an image in a presentation, consider the source of the image. For example, if your institution has an active subscription to ARTstor, the database’s terms and conditions provide clear guidelines for use: as long as a citation is present and the image is downloaded properly, an image may be used for non-commercial, scholarly purposes such as classroom or conference presentation (ARTstor 2016). ARTstor also allows sharing limited content with colleagues for the purpose of scholarly research. Not all databases will have the same terms. ARTbibliographies Modern, for example, is provided through vendors that state their own terms and conditions. Each resource will have its own specific license, which may add layers to usage considerations. As always, take some time to read and understand such information.

Images found through a search engine can be more difficult. Remember that an image must be legally obtained in order to be fairly used. An image that is creative commons licensed or public domain is a great way to navigate this potential issue. If using a search engine, try selecting results from a site that posts original images rather than a blog or public forum that may be reusing images without credit. Even with creative commons licensed or public domain works, don’t forget to cite the image.


2. Can I make a copy of this image and distribute it to the students enrolled in my course?

According to fair dealing this is probably acceptable, but it is an area for which institutions may have specific policies. As mentioned above, educational use is a fair dealing exception according to the Canadian Copyright Act. There are three main considerations when making copies for the classroom: how much content are you copying, how are you copying it, and where is it from? Copying an insubstantial amount of a work, such as one image from a book of images, is acceptable. For a more in-depth discussion, see How much of this resource can I copy? In regards to how you’re making copies, photocopying, scanning, printing, or downloading a digital image may each have different answers according to your institution’s policy, but it is generally accepted that making a “copy” can occur by any means. As far as where the image is from, the terms and conditions of the source may determine whether or not it can be copied or shared (see Can I use this image in a presentation?).


3. Can I provide a link to this image or video for my class?

As long as the link directs students to a resource they can legally access, this is probably acceptable. A link is not considered to produce a copy of the original work. Best practice would be to provide a link to a creative common licensed work, public domain content, or to a database to which your institution has an active subscription. The use of persistent links, also called permanent links, is sometimes considered to be a “copy” so these would be used with the same considerations as making a copy (see Can I make a copy of this image and distribute it to the students enrolled in my course?).


4. I’ve created an assignment that involves students creating work from an existing artwork. Is this going to be an issue?

This will probably be fine. Using copyrighted works for personal use or education is fair dealing, but I would recommend checking to see if your institution has a policy in place. There are a couple special cases to consider.

If a student wants to build on the artwork they create from your assignment and make something for commercial purposes, they may need to reconsider their use of the pre-existing work. For example, creating a painting of a Rice Krispies box with figures other than the usual three characters is acceptable for personal use and education. Using this new design as a commercial logo or package, however, would likely be infringement. If this becomes the student’s intent, direct them to your copyright office for advice.

If your student is literally taking an existing piece of artwork and changing or modifying the actual work, this may be a different issue. Regardless of where the work was acquired and the current copyright protection or license, the original creator of an artwork always maintains Moral Rights (unless they specifically choose to waive them). In Canada, Moral Rights protect the creator’s rights to attribution, integrity, and association. This means the original artist always holds the right to the integrity of their work, which is personal to the creator and may even be specific to the work. Any modification must respect the work and the author’s reputation.

  • Innovation, Science, and Economic Development Canada. 2016. “About Copyright: Moral Rights.” Government of Canada. Last modified November 19, 2013. Accessed March 3. Available at https://www.ic.gc.ca/eic/site/icgc.nsf/eng/07415.html#p5.
  • Murray, Laura J., and Samuel E. Trosow. 2013. Canadian Copyright: A citizen’s guide. 2nd ed. Toronto: Between the Lines. See esp. chapter 4 “Owner’s Rights,” chapter 5 “Users’ Rights,” and chapter 12 “Visual Arts.”


5. We have a class exhibition at the end of the year and some of the works created are parodies of well-known artworks. Can these pieces be displayed?

Probably. The Copyright Act fair dealing exceptions include using work for parody, satire, or critique. A possible consideration is whether or not an alternative work with a less restrictive copyright would suit the project equally well. Of course, this is long after the fact when planning the exhibition, but it could be a consideration in the future.


6. How much of this resource can I copy?

This depends on the resource and brings us back to the two-step test to gauge fairness. The first part of the test considers the purpose of the dealing. Your purpose for making copies must be one of: research, private study, education, parody, satire, criticism, review, or news reporting. Let’s say your purpose falls under research or education, so we’re good to move on to step two in order to consider fairness. The second part of the test is a bit more complex. You need to consider: the purpose of the dealing, character of the dealing, amount of the dealing, possible alternatives, the nature of the work, and the effects of the dealing on the work. When copying from a resource, the two most significant factors are usually considering possible alternatives and the amount you plan on copying. If you’re able, consider finding an alternative option with a less restrictive license. The amount you plan on copying is usually the main consideration. Assuming your purpose falls under one of the categories in the first step, fair dealing allows for the copying or communication of a “short excerpt” from a copyright-protected work. A “short excerpt” depends on the resource. Here is a summarized version of the list of what is considered a short excerpt for the use of education: up to 10% of the work, one chapter from a book, a single article from a journal, an entire artwork from a resource containing multiple artworks, a newspaper article, an entire poem or score from a work containing multiple poems or scores, and an entire entry from a reference work. Once made, these copying can be disseminated as an in-class handout, an online resource restricted to enrolled students, or as part of a course pack. The Fair Dealing Policy provides greater detail than the summary provided here; for more information, consult any of the resources listed below.

  • Emily Carr University. 2016. “Copyright Guide.” Accessed February 29. Available at http://www.connect.ecuad.ca/copyright.
  • Murray, Laura J., and Samuel E. Trosow. 2013. Canadian Copyright: A citizen’s guide. 2nd ed. Toronto: Between the Lines. See esp. chapter 5 “Users’ Rights.”


7. Colouring books and puzzle books are so popular right now! Can I make copies instead of completing the purchased version?

I’ve had this question a lot lately! First, check out the information under How much of this resource can I copy? to get an overview of the two-step fairness test. The main things to consider are likely going to be the purpose of the dealing and considering possible alternatives. Are the colouring pages or puzzles being copied for one of the purposes listed the first step of the fair dealing test, such as education? If so, move on to step two. In particular, is there a resource available that offers the same experience or result but is creative commons license, public domain, or not-copyrighted? Your institution may have some course material available or you can try searching online for creative commons license resources. I’ve listed a few online resources under What are some good ways to find images I’m permitted to use?

  • Council of Ministers of Education, Canada. 2016. “CMEC’s FAQs on Copyright Law.” Accessed March 4. Available at http://cmec.ca/docs/copyright/FAQ_EN.pdf.
  • Emily Carr University. 2016. “Copyright Guide.” Accessed February 29. Available at http://www.connect.ecuad.ca/copyright.
  • Murray, Laura J., and Samuel E. Trosow. 2013. Canadian Copyright: A citizen’s guide. 2nd ed. Toronto: Between the Lines. See esp. chapter 5 “Users’ Rights.”


8. I purchased supplemental material that goes with course content. Can I upload these e-resources for students and colleagues?

The material you purchased likely has terms and conditions provided by the publisher. This information will help guide your use. If it doesn’t help, this would follow the same fair dealing considerations as making a copy of a work. You can upload a short excerpt of the work for student use as long as the content is restricted to currently enrolled students. Sharing this content with colleagues is a bit more difficult to determine. If the resource was purchased for the institution, this is probably acceptable. If you purchased it personally, you’ll need to judge the fairness of the dealing with the two-step fairness test. There is a summary of this process under How much of this resource can I copy? and the resources below provide a more thorough discussion.


9. This image says it’s creative commons, but I’m not sure that’s a reliable statement. Can I still use this image?

The Internet can certainly cloud image authorship. Some people have taken to downloading images from one source and re-uploading them as original, unrestricted content to another source. Because of this, even if it says creative commons or public domain you should critically consider whether or not you have reason to believe an image is protected under copyright. For example, I was recently looking for comic book images under creative commons license to incorporate into a presentation. Many of the images retrieved were listed as creative commons, but I know they’re actually copyright protected content such as official promotional material. The best idea would be to find a reliable source for the image, cite it properly, and use it according to fair dealing. Remember that an image cannot be used fairly if it was not legally obtained.

If you find an image online and just can’t be sure, you can try a reverse image search on Google. This won’t necessarily find the original source of the image, but it will show you if the image can be found all over various websites, if it is very similar to an image that is protected by copyright, or if there are only a few versions all connected to the one you found. You may also find a similar image that has easier to decipher attribution and usage information. Visit Google’s Search Help to learn how to conduct a reverse image search.


10. What are some good ways to find images I’m permitted to use?

Remember that as long as you are using an image according to fair dealing, you can still probably use copyright-protected works. For example, an in-depth discussion on the female figure as depicted in Leonardo da Vinci’s Mona Lisa requires a viewing of a reproduction of the artwork. To acquire this image, your institution likely subscribes to image databases that can be used under license such as ARTstor. Most libraries still have a slide collection as well that may or may not be digitized.

When searching online, the Creative Commons Search allows you access multiple websites to retrieve images, videos, text, and music that all hold a form of creative commons license. Another option is Wikimedia Commons, a site that is increasingly popular to find and contribute images that you are free to use. These images come with a summary so you have all the information needed to cite the image. Flickr also allows you to search for images that are creative commons license. When searching on Flickr, it defaults to all licenses so don’t forget to manually select creative commons license each time you visit the site. As is always the case when looking online, think critically about the images you retrieve regardless of where you found them.

Well-established art museums and galleries sometimes have resource sections on their websites. MoMA Learn has online resources for grade school teachers and highlights onsite research resources. The Metropolitan Museum of Art offers some of their out of print publications as free downloads. These resources range in subject and tend to contain high quality images.

Don’t forget that books, slides, magazines, children’s books, and other physical resources are an option. Sometimes searching online can be frustrating and finding the source of an image can be equally so. A colour photocopy or scan may meet your needs and offers an easy-to-determine attribution. Your librarian can direct you to relevant resources and your institution probably has an education or media resources library ready for you.

Finally, I know you’re busy, but you can always create and use your own images. After reading all this, you deserve a nature walk!


9. Do I really have to cite images in a presentation?

Yes. Regardless of the image license or copyright status, an image needs to be cited the same way an academic resource would be credited. You can use any writing style guide, such as Chicago, APA, or MLA, to make these citations. The Simon Fraser University Library has created a great guide for how to construct these citations, linked below.


12. Why is this so complicated?

True, it’s not as simple as most would like. One of the confusing aspects for Canadians is that many online resources providing copyright and fair use guidelines are from the United States and, while similar, copyright laws vary by jurisdiction (note: these site tend to use the American term fair use, not the Canadian fair dealing). In Canada, the Copyright Act uses specific language and is designed to account for every possible use of any resource in any situation. As court rulings reflect our modern interconnect environment, however, aspects of this specificity are being relaxed in recent years. This shows another reason copyright information can be complicated—these issues are not static. The Copyright Act, like other acts of legislation, change or is considered differently over time. For example, Canadian copyright underwent a noticeable shift after 2012 because of what is commonly referred to as the copyright pentalogy, five separate cases in 2012 where the Supreme Court of Canada ruled in support of users’ rights. While none of these cases focused on image use, one was primarily concerned with photocopies made for use in K-12 schools (Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37). The rulings by the Supreme Court showed a shift in how we perceive copyright, fair dealing, and users’ rights as well as highlighting differences between Canadian and American laws such as the previously mentioned specificity of language.