Episode

Episode | Quick Take

In Episode 150 of The A&P Professor podcast, host Kevin Patton speaks with intellectual property attorney Brenda Ulrich about copyright law and image use in education. They discuss how educators often mistakenly assume they have rights to use textbook images and the complexities of permissions that expire. Brenda highlights the differences in legal standards for physical versus online teaching and emphasizes the importance of understanding licensing agreements and fair use. By the end, listeners gain valuable insights into legally and ethically incorporating multimedia into their anatomy & physiology courses.

0:00:21 | Host: Kevin Patton
0:00:47 | Introducing Brenda
0:03:49 | You Need a License
0:26:12 | Staying Up To Date
0:27:15 | Put Yourself in Their Shoes
0:41:55 | Do You Write?
0:43:54 | I need a handout
1:00:19 | Finding Media
1:02:00 | Can I Put My PowerPoint on YouTube?
1:12:43 | Staying Connected

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Episode | Transcript

The A&P Professor podcast (TAPP radio) episodes are made for listening, not reading. This transcript is provided for your convenience, but hey, it’s just not possible to capture the emphasis and dramatic delivery of the audio version. Or the cool theme music.  Or laughs and snorts. And because it’s generated by a combo of AI robot and human transcription, it may not be exactly right. So I strongly recommend listening by clicking the audio player provided or the captioned audiogram.

Introduction

Kevin Patton (00:00:00):
Former United States Senator Alan Simpson once stated, “If you have integrity, nothing else matters. If you don’t have integrity, nothing else matters.”

Aileen Park (00:00:16):
Welcome to The A&P Professor, a few minutes to focus on teaching human anatomy and physiology with a veteran educator and teaching mentor, your host, Kevin Patton.

Kevin Patton (00:00:26):
In episode 150, intellectual property attorney, Brenda Ulrich, answers my questions about using textbook images in teaching.

You Need a License

(00:00:48):
A while back, I got a couple of inquiries about proper use of textbook images in teaching. But I’m no legal expert. So I was pretty hesitant to express an opinion as if I knew what I was talking about. However, it turns out that I know such an expert, and she agreed to talk with me on this podcast about those questions and more. Her name is Brenda Ulrich, an attorney and shareholder in her firm, Archstone Law Group, in Boston. She and I became friends while working side by side in the leadership of TAA, the Textbook and Academic Authors Association, an organization I’ve mentioned several times on this podcast and will again later in this episode even.

(00:01:43):
Brenda has a lot of experience in the areas of law practice that directly relate to those questions I mentioned. There’s a link in the episode notes that gives more details about her extensive expertise and experience, but here are a few highlights that underscore that yep, she’s the right person to ask about the legalities of using copyrighted materials in teaching. Brenda is an intellectual property lawyer who regularly presents at TAA and other conferences. She served on the steering committee for the Boston Bar Association’s College and University Section. She’s an active member of the National Association of College and University Attorneys, and the Copyright Society of the USA. Brenda’s areas of focus include drafting and reviewing, publishing, licensing and consulting agreements, creating and interpreting copyright and intellectual property policies, and registering and protecting trademarks and copyrights. Her clients have included colleges and universities, authors, publishers, and educational, scientific, and cultural organizations.

(00:03:04):
And by the way, you might be interested to know that Brenda, very recently, took up boxing, and she’ll be fighting in a benefit to knock out cancer on October 10th at the MGM Music Hall in Boston. Now, if you’re in the Boston area and want tickets, or if you live anywhere in the world and want to donate in support of Brenda’s first big match, just go to theAPprofessor.org/cpt, or click the link in the episode notes. And by the way, there’s also a fun little video of Brenda’s preparations for the big match.

(00:03:50):
Well, hi, Brenda. Thanks for stopping by and talking with us about some questions that many of us have, including me, about the media that we use in our teaching. What are fair uses? What are legal uses? How do I do things without getting in trouble? We really appreciate you taking your time out and speaking with us today.

Brenda Ulrich (00:04:14):
Thanks, Kevin. I’m happy to be here.

Kevin Patton (00:04:16):
I’m going to just jump right into the most common question I get from folks and a question that I’ve pondered myself. And I just like your perspective as a practicing attorney in the area of intellectual property and education and textbooks. I have always had the assumption because I am given images from the A&P textbook that I’ve adopted for this class or that class, whatever I’m teaching. And, of course, this doesn’t apply just to A&P, but that’s the context of our podcast. So that’s why I’m asking it that way. So I’ve adopted this book. The publisher has given me images to use for my course. Now, do I need to ask special permission beyond that to use those images if I’m making a slide for teaching like a PowerPoint slide, or if I’m using an image to create a test item that the students maybe have to label or answer a question about or maybe making up worksheets or a note page or there’s all kinds of different things I can use images for as I’m teaching my students? So that’s okay, right?

Brenda Ulrich (00:05:31):
So yeah, I think generally speaking, that’s what these images are intended for. So I want to just step back a little bit and think about when you are licensing or buying these books for your classroom, the publisher is providing you with ancillary materials. That’s what has been long before the internet, textbooks came with instructors manuals, test banks, just stuff to help the professor teach the class. And they’re intended to be used with the book. Now that you more typically will license these from the publisher or they come along with your license to the book, the answer to these kinds of questions is really in the license agreement that you get from the publisher.

(00:06:14):
So I can tell you as a general rule of thumb that you’re using it the way the publisher intended you to use it. But I would say the way to really know, for sure, the answer with regard to a particular textbook and a particular content and a particular way you want to use it is to look at what came from the publisher when they sent this to you. And they said, “You are welcome to use it for this. You can’t use it for that,” because ultimately, you’re in a license agreement with the publisher, which is a contract. And that contract is actually the most important thing to think about what you’re allowed to do that’s governing your use of it more so than any general principles of copyright law and so forth. It’s really what the publisher says you can do with it because this is content that is owned by the publisher. And so they get to decide how and where you can use it.

Kevin Patton (00:07:03):
Okay. That makes sense. But the problem is that, usually, licensing information, it’s not just for materials sent to me by the publisher. But any kind of software, anything I use, the license will come up, and I just scroll down and click, “Yeah, I agree,” and I don’t go any further.

Brenda Ulrich (00:07:24):
Yeah.

Kevin Patton (00:07:25):
So you’re saying that really, I ought to take some time and go back and take a look at that. And I guess if I can’t find it, then I just contact my sales rep or contact the main office of the publisher and they’ll get me a copy of that license.

Brenda Ulrich (00:07:44):
Yeah. And hopefully, there’s something that’s not a long 20-page legal document, but some sort of tips or guidance on what these materials are for and how you can use them.

Kevin Patton (00:07:54):
Sure.

Brenda Ulrich (00:07:55):
And they might have good advice for you on how to best utilize them.

Kevin Patton (00:07:58):
Yeah, that’s a good point. Here’s a little twist though. In a lot of courses, and I’ve done this in my A&P courses where maybe I adopt a textbook and I require the students to have that textbook available to them. And so I’m using those images. Okay, that’s fine. But sometimes what I’ll do is in the syllabus, I’ll add another textbook, or maybe it’s not what you would traditionally think of as a textbook, but some little manual or maybe an anatomy atlas or an anatomy coloring book. I mean, there’s all kinds of things, a little maybe a supplement on how to study anatomy and physiology. And so that’ll be in the syllabus as sort of an optional thing that the students can buy if they think it’s going to help them, but it’s not really been adopted for use in my course. So one or two or 20 people may purchase that, but I’m not requiring its use in the class. Can I use images out of that in my teaching?

Brenda Ulrich (00:09:06):
No.

Kevin Patton (00:09:07):
Okay.

Brenda Ulrich (00:09:09):
The short answer is no. So when you adopt a textbook or your book, you are basically getting the benefits of everything that comes with it. But when you are just buying a copy of a book, you’re not getting the whole suite of additional materials that comes with it, and you’re only buying that copy. So the student who buys it can read it, use it, reference it. But you as the instructor have not purchased this or gotten any rights to it. So you, therefore, can’t just go take content out of it and start using it to teach your class.

Kevin Patton (00:09:48):
Okay. But I’m thinking to myself, “What if I do?” Let’s say it’s not even on my syllabus. Let’s say I have on my shelf a bunch of anatomy atlases, which actually is a true story. I have a bunch of anatomy atlases. So what if I pull one of those out and say, “This is one of the best images of the pituitary gland that I’ve ever seen. It really shows what I want to make in my class. And there’s nothing in my textbook that has it represented quite this way. So I want to use this one”? So I get out my smartphone and take a picture, or I put it on the scanner, or maybe I have a digital copy of that book that I have purchased, but not adopted or anything from my class. And the students haven’t purchased it unless by sheer coincidence. So can I take that pituitary image and put it in my teaching slides or put it on my test?

Brenda Ulrich (00:10:56):
So interestingly, it really depends where you’re planning to use it. So this is a copyright questions, right? So we’re now outside of the adoption situation, which is really the contract between you and the publisher. So now we’re really talking much more generally about copyright law. So the default is that whoever creates copyright of content, whether that’s a book, whether that’s images in a book, any sort of creative work, if I create it, I own it. And then I might license it to a publisher to publish it. And you might buy a copy of it, but I still own the copyright. And the rule is unless you have permission from the copyright holder, you can’t use it. So that’s just like the baseline from which you have to think through these issues.

(00:11:47):
Now, that being said, the copyright law in the United States is based on a policy, right? We want to protect the creators of content so they’ll be encouraged to create more. So we want to make sure they get paid for the time and effort they put into creating their works and it doesn’t just become free for all public domain as soon as you create it, or nobody will bother to write a book if they can never make a dime on it. That being said, built into the copyright law are some policy goals that sort of are intention with the ownership idea, right? So partly, we want to encourage teaching and scholarship and criticism. Those are also forms of expression, and sometimes you have to reference a copyrighted work in order to do that.

(00:12:32):
So the Copyright Act strikes a balance between the rights of the owner of the content and the rights of those who need to use it. And there are some exceptions built in where if you fall into those exceptions, you don’t have to ask for permission. And I think two big ones that come up for academics, for instructors are, first of all, they are teaching exceptions. You use these materials when you teach. And then the second is something called fair use, which I think a lot of people know about, but don’t always fully understand. But that’s the idea that you can use it in a transformative way because you’re commenting on it or criticizing it. Or if I’m talking about a poet, I can reproduce some of their poems to teach about the poet.

(00:13:14):
The example you’re talking about falls more into the teaching exception, right? I want to use this content in the classroom to teach my students. But when I say classroom, the Copyright Act dates from a time when there was considered a very bright line between a brick and mortar physical classroom where I and the instructor and the students were all physically in the same place. And if that’s the situation, you have pretty free rein to use images in the class, to read from the newspaper, to hold up images, show them on a projector slide, whatever it is, to the students in the classroom, not making copies of it to hand out, but just using it in the classroom. However, once you get into online teaching, the law is actually narrower as to what you can do with it. So if you’re teaching on Zoom, the law’s a little different. It’s narrower. And it’s very specific in the Copyright Act. I’m not going to necessarily get to the details of that, but just know it’s not as unencumbered as in the classroom.

(00:14:14):
And then stepping away from that, if you want to use those materials in your CMS or a blackboard or elsewhere, that’s getting much more problematic because now you’re outside the realm of those teaching exceptions, which we’re really envisioned as being used in the classroom. But if you’re just making content available to students outside the classroom, you’re on much shakier ground from a copyright perspective.

Kevin Patton (00:14:37):
Okay. If I wanted to learn more about what’s in the law and which parts of it apply to me and so on, that’s probably pretty widely available on the internet, or maybe my librarian can help me find it or?

Brenda Ulrich (00:14:53):
Yes. I would say the best person always to ask is the college librarian if you teach in a college setting. They are copyright gurus over there. And moreover, one of the best ways to avoid getting into problems and danger areas with using content is libraries have subscriptions to lots and lots of journals, to lots of publications, to lots of books. They have huge licenses, multi-million dollar licenses to all kinds of content. So you already may have access to it through your institution. And if you use those avenues, then you don’t have to worry about it because you’ve already got the license in place. But rather than just going out on your own and pulling it off the internet, which is not covered by any copyright exception, use the resources that you have available both the expertise of your librarians, but also, all the licenses they’ve already put in place for people like you.

Kevin Patton (00:15:48):
Yeah. I’m glad you brought that up because that actually has happened to me a few times where I was preparing something and was worried about what I can use, what I can’t use. And I’d have some librarians say, “Well, we purchased a license for this library of anatomy media.” And like, “We did? How do I get that?” And that usually makes them really happy too, because then they made a good choice-

Brenda Ulrich (00:16:17):
Exactly.

Kevin Patton (00:16:18):
… purchasing that license. So that’s win-win there. So I’m really glad you brought that up. Let’s get back to that pituitary gland because-

Brenda Ulrich (00:16:27):
Okay.

Kevin Patton (00:16:27):
… this is really a beautiful image from that anatomy atlas that I have. I checked it out with the librarian and we don’t have any license to use it or anything like that, but I still want to use it. So I assume that there’s somebody I can ask to get permission to do that. How would I go about doing that, do you think?

Brenda Ulrich (00:16:49):
Well, before you even do that, I would say first look at the copyright page in the atlas and see how old it is-

Kevin Patton (00:16:54):
Okay.

Brenda Ulrich (00:16:55):
… because there’s a chance if it’s really… Probably not for the kinds of anatomy diagrams, because I would guess anything from before 1929 is not very helpful in teaching in 2024. But a lot of books have gone into the public domain that were published in the 20th century. So if it’s that old, it’s worth checking that first. But after that, the copyright page of any book is also where you’ll find information about the publisher. And you can take the name of the publisher, plug that into a search engine, and then figure out who to contact there to get permission. And again, this might be a place where your librarians can help you. If you’re pulling together materials for course reserves or the equivalent, there might be a department that will help you do just that.

Kevin Patton (00:17:40):
Well, that’s a good idea too. Sort of staying on that for a minute, it’s true that there’s a lot of material that’s in our discipline, it’s a combined discipline of anatomy and physiology, that really the older stuff isn’t very helpful to us. But in anatomy, a lot of representations, either photographs or drawings of anatomical structures and so on really do last. We may have changed the name of what we call that bone or that part of a bone. But the fact that we have that bone, humans will not have evolved that rapidly probably that we need something different.

(00:18:29):
Well, for example, actually, right now from where I’m recording, I can see on my shelf one of my prized books is a reproduction of the work of a gentleman who went by the name of Vesalius. Everybody in anatomy knows who he is or was back in the Renaissance era. And he had commissioned a bunch of really pretty amazing line drawings of different parts of the human body. Now, I assume that those original ones certainly are copyright free. They’re in the public domain because of their age.

Brenda Ulrich (00:19:09):
Yeah.

Kevin Patton (00:19:10):
But that book that I have on my shelf, this particular book, it’s a reproduction that was published in commemoration of, I don’t know, the 400th anniversary or something of the original publication.

Brenda Ulrich (00:19:24):
Yeah.

Kevin Patton (00:19:24):
And it’s really high quality and it’s a very large format. So even though I have other works here that have some of those images in it, none of those are very complete. And not only that, they’re often very small versions. So depending on what I want to use it for, I probably want to go to that big commemorative edition-

Brenda Ulrich (00:19:46):
Right.

Kevin Patton (00:19:46):
… and find that image and use that, copy that and put that into a test or maybe alter it and make my own little handout on how to decipher the parts of that bone. So that particular book has a recent copyright, but those-

Brenda Ulrich (00:20:06):
Yeah.

Kevin Patton (00:20:06):
… images are from way, way long ago.

Brenda Ulrich (00:20:10):
Yeah.

Kevin Patton (00:20:11):
So are those images fair game?

Brenda Ulrich (00:20:13):
I think you’ve written the perfect copyright law exam question here for me. I wish I was teaching it. So it’s a really neat question because there’s a lot of things to think about here. So the first is that if somebody takes… So basically the book arguably is creating a derivative of the original, right? So they have taken it, but they’ve maybe blown it up, made it really clear to see, done a lot of good lighting so the image is very crisp and clear. But in order for them to have copyright in that image, they would have to add enough creative juice of their own that it’s a newly copyrightable work. And just cleaning it up and making it easy to see doesn’t really pass that test because that’s not really added creativity to it. Now, arguably, the publisher of the whole book has rights in the book and how they’ve organized it and the text that they’ve added. But just that single image is still in the public domain. And so you can still use that.

(00:21:20):
And second to that, what I’m going to think is something really also I think is to think about is how you’re using it. In this case, it may not be as much of an issue. But I also find it interesting that if you’re sort of trying to show the history of pedagogy or the history of understanding what we knew about anatomy at different periods in history, then pulling on some of these historic versions of it, I think, is a pretty strong fair use argument because now you’re not talking about it so much as, “This is what the pituitary gland looks like. But in 1600, somebody was able to create the image of it, and this is what they knew, and this is what they didn’t know, and this is why it’s depicted this way.” And if you can talk about biases in history or all those kinds of things, that’s where you’re really getting into a lot of the fair use exceptions because now you’re using it not just for its original teaching purpose, but to learn other things from it and to comment on it in new ways.

Kevin Patton (00:22:17):
I think I follow that. So-

Brenda Ulrich (00:22:19):
Sorry. I’ve always loved the historical context of these things.

Kevin Patton (00:22:23):
… I think we, as A&P teachers, do a lot of that. We will bring in older images and say… For example, that Vesalius book I was telling you about, there are some pretty famous mistakes that he made because he found particular people that were being dissected and so on that they had some anomaly that isn’t commonly found in humans. And he just assumed that everybody has this-

Brenda Ulrich (00:22:52):
Yeah.

Kevin Patton (00:22:52):
… everybody has this many vertebrae or segments of the sacrum or so on. And that’s just not the case-

Brenda Ulrich (00:22:59):
Yeah.

Kevin Patton (00:23:00):
… and or could have been a healed injury or something like that. So we do those sorts of things. We point out-

Brenda Ulrich (00:23:06):
Right.

Kevin Patton (00:23:07):
… how science progresses. And so that’s really valuable information for us to know that we can do that. As a matter of fact, a friend of mine who many of our listeners probably have heard of and maybe even know him, his name is Kevin Petti, and he’s out in San Diego. And for decades now, I mean, that’s sort of one of his great contributions to A&P teaching besides being a textbook author, by the way, on several textbooks, he also has these courses where he will take his students and other A&P professors and so on to Italy and they do-

Brenda Ulrich (00:23:44):
Right.

Kevin Patton (00:23:44):
… tours around Italy looking at the originals of some of these-

Brenda Ulrich (00:23:47):
Right.

Kevin Patton (00:23:48):
… DA Vincis and things like that. And not only that, but he provides that context of… It’s not like, “Well, here’s somebody who was drawn by DA Vinci.” It’s like, “Look at this, look at that, and look at how different-”

Brenda Ulrich (00:24:01):
Right.

Kevin Patton (00:24:02):
“… that is from the way we represent those things today.” So I think a lot of us do that. So that’s very useful information, real practical use for most of us, if not all of us.

Brenda Ulrich (00:24:13):
I can pick up something, because when you said Vesalius, I think I encountered that name many, many years ago in college in an art history course along with Michelangelo as people who were depicting the human body and studying it for the purposes of making art or doing very different things than teaching anatomy courses in college. And for the historic images, that’s not as important. But in modern day, I do think it’s worth thinking about, and we sort of have touched a bit on the fair use exception that what something was intended for originally versus what you’re using it for is often a big part of the fair use test.

(00:24:51):
And I think that’s where people sometimes get in trouble because if you’re copying things… I’m going back to your original example… If you’re copying imagery from a textbook that is intended to teach students about anatomy and physiology, and you’re copying it for the purpose of teaching students about anatomy and physiology, you’re not transforming it. But if you’re taking an image of a body part, that image was created for a very different purpose. And I don’t know enough about the field to know what other reasons it gets created for, but that is then stronger for defending your use of it in the classroom setting.

(00:25:27):
But the key thing to think about when you want to use an image is are you undermining the market for it by using it that way? Are you undermining the permissions market? So even if you’re not adopting the textbook, if you’re copying stuff out of the textbook, you might be depriving the author and the publisher of a permission fee that they should be collecting on the use of 10 images from their book in your classroom. And I think that’s the difference between trying to use content from textbooks, which are intended as teaching tools, as opposed to using primary source kinds of documents, which were not created for classroom teaching.

(00:26:03):
All right. That makes sense.

Staying Up To Date

Kevin Patton (00:26:05):
We’ll be back with Attorney Brenda Ulrich after this quick break. I’m popping in here with a quick reminder that I have a free digital newsletter for anatomy and physiology faculty. It’s called the A&P Professor Science and Education Updates. It’s, as the name makes clear, I hope, full of updates in the worlds of science and education that I think you’d be interested in. It has a bunch of headlines with summaries that point you to various sources or you can read the full stories, things like the latest discoveries, new perspectives on science concepts, evidence-based teaching and learning strategies, and the occasional weird thing that you may have otherwise missed. Just go to theAPprofessor.org/updates to check it out and to subscribe so you don’t miss out.

Put Yourself in Their Shoes

Kevin Patton (00:27:16):
I got all kinds of questions that are based on what we’ve been talking about-

Brenda Ulrich (00:27:19):
[chuckles].

Kevin Patton (00:27:20):
… so far because there’s all these different iterations and different applications and so on. And something that just popped into my head is a question I’ve gotten before and a question I’ve thought about for myself, and that is I just mentioned my friend Kevin Petti. He is a co-author on several A&P books. I have not adopted those books for use in my course. But let’s say I use one of his textbooks this year, and then I think, “Well, that doesn’t really fit the way I want to teach A&P.” So I’m going to adopt a different book, let’s say my own textbook-

Brenda Ulrich (00:27:56):
Okay.

Kevin Patton (00:27:57):
… or one of my own textbooks. And so I’m going to use that the following year in my courses, “That fits much better.” Well, of course. It does, because I was involved in producing that book.

Brenda Ulrich (00:28:07):
Yeah.

Kevin Patton (00:28:09):
And I’m not dissing. Kevin Petti’s book is a very, very good book. There are a lot of good A&P books out there. And so I used his book last year. I’m using my book this year. But last year, I created all these lectures, these PowerPoint lecture decks, and I used images from his book because that was part of the agreement with the publisher, right?

Brenda Ulrich (00:28:32):
Yeah.

Kevin Patton (00:28:33):
And now I’m using my textbook, and there are some images in his textbook that do a better job of explaining this concept or that concept. So I’m just going to keep it there. Or I might just say, “You know what? I don’t have time to change all these. I made this switch real quick. This is a big course. I got lots of things going on. So I’m just going to use my slides from last year because the content in general is the same from one A&P course to the next.” If I switch textbooks, there are probably some adjustments I’m going to make, but it’s essentially very similar. So can I just keep using my slides, my teaching materials that were produced using images from that other book?

Brenda Ulrich (00:29:22):
So I guess I’m going to turn it back on you and say, well, what if the other Kevin did what you’re talking about?

Kevin Patton (00:29:27):
Oh, he’d never do that.

Brenda Ulrich (00:29:33):
What if he said, “Boy, my book is great, I’m going to use my book. But Kevin Patton, he’s created a few things that are really good, and I’m just going to keep using them. And no, I’m not going to buy his book, or I’m not going to ask permission. I’m just going to use his content because it’s just so handy”? And I think that’s a good litmus test. Just put yourself in the shoes of the other guy, of the creator of it who might be making a living off of this. And I think that you got to always think it’s not just the market for the textbook, it’s the licensing market for the content in it.

(00:30:06):
And so the short answer to your question is no, you cannot do that because now you’re exceeding the scope of the license that you had for that book, which was probably just for a semester or a year. And once that ends, it’s like you’ve taken the book out from the library. You have to give it back and you have to give back everything else in it. And if you want to keep using it, you have to ask permission for it. And I think sometimes it’s interesting that so many faculty members are themselves both users and creators of content. And so you have to, I think, put yourself in both roles to think through these issues. It’s not just what you want to use. But if it was your content, would you think it would be appropriate for someone to ask permission?

Kevin Patton (00:30:45):
That brings a couple of different things to mind. And one is more of a comment, I guess, is that in this podcast, a variety of different topics have come up. I’ve always advocated for myself and for people who listen that when it comes down to it, what you want to do is the ethical thing, even if you don’t have a personal goal of being an ethical person, which I do, but maybe somebody doesn’t have that. So the other reason that you want to be ethical is that it’s mostly healthcare professionals and related professions that we’re teaching in our courses, and we don’t want to model unethical behavior for them because they’re going to end up treating us and our family at some point, and we don’t want them-

Brenda Ulrich (00:31:39):
Yeah.

Kevin Patton (00:31:40):
… cheating on anything. So there’s that too.

Brenda Ulrich (00:31:43):
And I’ll give you a third reason, which is, well, partly, there are a lot of people out there who create content and want it to be broadly used. For example, I was talking with a client today. She said, “I want people to use my stuff, but I want them to give attribution to me and I want them to not tinker with my content. Use it, but don’t modify it because that can bring errors into it.” So some people, if they want to share their stuff broadly, they’ll put it out there under something like a Creative Commons license. And then you know that this is somebody who believes in sharing it broadly. But I also have other clients who… Another client of mine recently found out that somebody had been posting chapters of their book on a university website for years, and they said, “Wait a minute. They’re supposed to be licensing this from the Copyright Clearance Center. This is my content out there.” And they were furious.

(00:32:35):
So you can’t assume whether you’re being ethical or not. Different content creators feel very differently about whether they want their stuff broadly used and reused and shared, or they want their content to be respected and people to get permission. So I think you can’t just assume that. And the problem is, if you assume wrong and you say, “Well, they should want to share it broadly,” that’s when the copyright law can also come in and smack you on the knuckles in the face of an infringement suit and a hefty fine. So it’s not just doing the right thing, but it’s also staying out of trouble.

Kevin Patton (00:33:09):
Yeah, that’s a good point. And I want to circle back to that hefty fine thing in a couple of minutes because-

Brenda Ulrich (00:33:15):
Yeah.

Kevin Patton (00:33:15):
… that’s concerning. But-

Brenda Ulrich (00:33:15):
Sure.

Kevin Patton (00:33:18):
… before we do that, there’s another thing that, the Kevin Petti situation that you propose, like what if he starts using images from my book? And that’s a good test, I think, to do that sort of thing, to think about is this ethical? Is this legal? Should I be doing this? But another thing is that, well, let’s say that I used his book and now I’m using mine and I’m using images from my book. I’ll do that. But there’s this one that’s in his book that just is really cool and I want to use it. Kevin is my friend. We talk a lot.

Brenda Ulrich (00:34:00):
Yeah.

Kevin Patton (00:34:02):
So can I just give him a call or drop him an email and say, “Kevin, buddy, there’s this one image that I love that’s in your book. Can I use it?”? Now, I want to clarify that by saying that his books are with a major publisher, and he does not, as far as I know, create any of the art in the book. And if he does-

Brenda Ulrich (00:34:27):
Yeah.

Kevin Patton (00:34:27):
… it’s not widespread. So let’s assume that this image I want to use was drawn by an illustrator-

Brenda Ulrich (00:34:36):
Right.

Kevin Patton (00:34:37):
… that was paid in some way, compensated in some way by the publisher. And therefore, that image is either licensed by or owned by that publisher, not by Kevin Petti. Can he give me permission to use that image?

Brenda Ulrich (00:34:55):
No, he can’t. That is part of the book that the publisher owns. And if it’s like 99% of the publishing contracts I’ve seen, the publisher is the one in charge of permissions. So that’s who you have to go to get permission. And that’s true even if it’s content that Kevin created. I mean, the illustrator example is easier. But even if it’s his text, he does not control the permissions for that. It’s the publisher.

Kevin Patton (00:35:24):
Okay. Yeah, so that makes sense, because I get not a lot, but I regularly get requests like, “Kevin, I really love the pictures in this chapter from your textbook, and I’m teaching this course and I want to use those pictures. Do you mind if I do that?” And I’m like, “Well, I would be okay with that, but those aren’t my pictures.”

Brenda Ulrich (00:35:49):
Right.

Kevin Patton (00:35:49):
“Well, your name is on the book.” Well, yeah.” But as you just explained, that doesn’t mean that I own those pictures or even that I have control of those permissions. So I’m glad you brought that part of it up.

(00:36:04):
So getting back to this hefty fine thing. All right. So let’s say I don’t know Kevin Petti, and I’m not really paying attention to the permissions aspect of it or the copyright aspect of it. Maybe I do want to do the right thing and I want to be an ethical person and I want to model ethical behavior for my students, but I’m busy. I’m overloaded. I need to get this course ready. The lecture starts in a half hour. I need to get this stuff going here, and I’m just going to go ahead and use it. And once it’s in there, I’m probably not going to take it out next time I teach this course either.

Brenda Ulrich (00:36:50):
Yeah.

Kevin Patton (00:36:50):
But in any case, so what are the chances that somebody’s going to find that? And not only that, if they do find it, I mean, do people really get turned in for this? And if they do, then what happens then? I mean, do I get fined? Do I get sued? Do I get thrown in prison? What are the potential consequences?

Brenda Ulrich (00:37:21):
Yeah.

Kevin Patton (00:37:21):
And how likely are those to be applied?

Brenda Ulrich (00:37:24):
Well, so no one’s going to show up at your door and arrest you. That’s not how this works. This is a civil-

Kevin Patton (00:37:29):
All right. Glad to hear that. That’s all I need to know.

Brenda Ulrich (00:37:32):
Take that one off the table. So let’s assume we’re talking about a textbook, right? And let’s assume therefore that we can assume the publisher involved is on top of things and they registered copyright in that textbook with the Copyright Office. And why does that matter? It matters because, and actually you don’t have to register with the Copyright Office to have it protected by copyright law. That’s sort of an aside. I’m not going to go I’m not gong to go down that… but just by creating it and putting it in a fixed format. If I write a poem, it’s protected by copyright law even if I never publish it and never register with the Copyright Office. But there are very good financial reasons to register things with the Copyright Office. And publishers as a matter, of course, register all their publications, all their books with the Copyright Office.

(00:38:17):
So the importance of that is that if you are found guilt…well, not guilty. But basically, they would come after you and say, “Hey, you’re using this without permission. You’re infringing my copyright.” It usually starts with a letter. If you ignore it or tell them to go pound sand, it could escalate. They could get lawyers involved and somebody could sue you for copyright infringement. So there’s usually many steps in between before we get to that point. But all those steps in between tend to involve lawyers who have their own fees. And then if a court said, “You had no right to use that. You infringed the copyright,” if it happens to be a super valuable work, they could go for actual damages, which means you just have to give them all the profits you made. Now, if you’re Stephen King and somebody made a movie of your book without your permission, that might be millions of dollars. But most of the time, copyright infringements have no actual monetary value in terms of how much damage they’ve caused you.

(00:39:22):
And so the copyright law deals with that because they still want to sort of discourage people from infringing, even if they don’t think the financial impact will be very high by having basically damages available under the statute if you’ve registered your copyright. And there a court could decide, “Well, you’ve infringed the work.” Even though the actual financial impact on the owner of the copyright was 2 cents, they can assess damages of between $750 and $30,000 per work infringed. Now, the work could be the book, but it could also be every image in the book. And if you’ve infringed 10 different pieces of art, we could be multiplying that number times 10. And then that number can go up to $150,000 per work if they decide it was willful. Basically, if you knew and they know there’s no question that you knew you were infringing on it and you went ahead with it anyway, that’s willful infringement, and then that number can get much higher.

(00:40:23):
Now, in truth, most of the time, these things settle for a lot less than that. But I think it’s not unreasonable to think about these amounts. And is it worth risking all that versus going and getting permission and maybe paying a small licensing fee, which will be a lot less than any of these damages, never mind all the costs involved in defending a lawsuit?

(00:40:43):
And then the other sort of aspect of your question is about how likely is anybody to find out about this? And I go back to my example where my client heard from a former student that they say, “Hey, I saw this university has your article up there as a PDF.” So in the age of the internet, it’s actually a lot easier to detect this. It used to be if you put it in a course pack of fiscal documents, it’d be much harder to be detected. But if you’re putting things online, that is much more easy to detect. And there are law firms out there who basically do nothing, but troll the internet looking for infringements and going after people for them. And I get regular calls from… I work with a lot of colleges and universities. I work with their general counsel, and I get regularly forwarded to me saying, “My gosh, this department got this complaint and they’re demanding $10,000 because we put this up on the website when we shouldn’t have.”

Kevin Patton (00:41:39):
Yeah. So my dean is not going to be happy with me on top of all that.

Brenda Ulrich (00:41:45):
No.

Kevin Patton (00:41:45):
So it’s just one bad thing after another if I’m not following the law, I think.

Do You Write?

Kevin Patton (00:41:55):
I mentioned that I first met our guest, Brenda Ulrich, in TAA, the Textbook and Academic Authors Association. Now, TAA is weird in that… Well, it’s weird in many ways, but one of the ways it’s weird is that it serves two different major groups of academic writers, those who create textbooks, and those who create other kinds of academic writing such as journal articles and grants and dissertations and the like. You probably already do some writing in your role as an academic too, or maybe you’re academic writing curious. If so and you don’t belong to TAA, you’re missing out on a lot. There’s an easy way to explore the resources available to you in TAA. Right now, you can get your first year’s membership for only $30.

(00:43:00):
Not that it’ll be all that easy to explore such a huge collection of articles, and on-demand webinars, eBooks, writing guides, writing groups, and other resources. But it’ll at least be fun and useful and you’ll end the year with a much bigger network of peers who understand you. Oh, heck, you know what? For the first 10 people who ask me before the end of October 2024, I’ll give you a one-year gift membership at no cost to you, no strings attached. Just tell me whether you want a regular or grad student membership when you email me at podcast@theAPprofessor.org.

I Need a Handout (and a Sandwich)

Kevin Patton (00:43:54):
You mentioned the idea of if you write a poem, but you never publish it or anything, it’s in a tangible form, and so therefore, it has copyright attached to it, whether it’s registered or not. So that means that if I make a handout-

Brenda Ulrich (00:44:10):
Yeah.

Kevin Patton (00:44:11):
… to help my students understand that bone or the pituitary gland that I love so much and so on, I have that going, so that handout is actually copyrighted, right? I mean, it has a copyright, and I own that-

Brenda Ulrich (00:44:25):
Yes.

Kevin Patton (00:44:25):
… copyright because I created it-

Brenda Ulrich (00:44:27):
That’s right.

Kevin Patton (00:44:28):
… unless I sell it or give the copyright to somebody else. So I actually could be in that position if somebody takes that and publishes it in their book or something. Well, good luck to them because my handouts aren’t that great. But let’s say it was my one great handout, then I’m on the other side of that, right? That I could-

Brenda Ulrich (00:44:50):
Right.

Kevin Patton (00:44:50):
… take legal action and get them to stop and maybe even pay some damages or something at some point. That’s interesting to know. Is there any advantage in registering that copyright? Because I mean, they do have a registration process that I could put that through.

Brenda Ulrich (00:45:08):
Yeah. And I would say, well, first, even regardless of whether you register or not, it is definitely worth putting at the bottom of your handout, “Copyright Kevin Patton,” the year, 2024 or whatever it is, because that, first of all, it puts people on notice that this is protected by copyright. And you can also put next to it, “All rights reserved,” or, “For permission, contact me at X.” Because just even in our conversation, we can tell there’s a lot of inadvertent infringement that goes on. People don’t realize they’re infringing because they don’t know what counts as infringement or not. And the first step is just sort of educating your audience to say, “Hey, this is my copyrighted work. I don’t just want it copied and put out there.” So just putting the copyright notice on there is a great way to discourage mindless infringement.

(00:45:56):
But the reason you would want to register it is because if you find out somebody’s been using it without your permission, you can’t actually go after them legally in the courts or get stashed or damages or really threaten them very much if you don’t have a registration. And so when one of my clients gets one of these letters with the demand, the first thing I say is, “Well, show me the copyright registration.” And if they can’t show me evidence of a registration, then we’re having a very different negotiation about what the possible cost of this infringement might be because its orders of magnitude is lower than if they have a registration, and I know we’re looking at $30,000 of statutory damages. So that’s the real reason.

(00:46:34):
And I’m not saying you should register everything you ever create. But if you put work into it and you would be upset if somebody would copy it without your permission, then I think it’s worth registering. And the good news is that it’s not very expensive or difficult to register copyright. You can go to the Copyright Office website at copyright.gov. You fill in an online form. It’s just about five or six screens. You can upload a copy of it or mail it in depending on certain factors. And then I think it’s $65 right now for a single work. So it’s not exorbitant or all that difficult. And I think if you’re going to put the time and effort into an article or a handout or something, it’s worth registering if you want to make sure it’s protected out there in the world.

Kevin Patton (00:47:15):
Okay. So if let’s say I write… Well, I’ve done this before for classes where I have written out a general outline of the entire course, and I give that to my students. I publish that, meaning send it to the copy center and-

Brenda Ulrich (00:47:33):
Yeah.

Kevin Patton (00:47:33):
… give it to my students. And I have, for a long time, been putting that copyright notice at the bottom because sort of being in the business of writing and authoring and publishing and so on, it just has come to my attention that that’s a good practice to just remind people like, “Hey, this is mine, not yours.”

Brenda Ulrich (00:47:51):
Okay.

Kevin Patton (00:47:54):
But I have had that outline, another instructor sees it and says, “My gosh, I really like that part,” or, “Can I use the chapter on muscles or whatever from this big long syllabus or whatever you want to call it? Can I use that in my course?” And I want them to use it. I think that’s fine. But for a long time now, I’ve asked them to, “If you do that, then put that copyright notice in and then also add to it, ‘Used by permission.'”

Brenda Ulrich (00:48:22):
Yeah.

Kevin Patton (00:48:22):
So that emphasizes that, “You copied it for me, but I said it was okay. And I’m the owner of the copyright. So I am in a position to be able to give that permission.” So I mean, by adding that copyright thing, you’re not really saying, “This is mine. You must not use it,” in sort of that aggressive stance-

Brenda Ulrich (00:48:47):
Yeah.

Kevin Patton (00:48:47):
… but just to say, “Hey, it is mine. So-”

Brenda Ulrich (00:48:50):
Right.

Kevin Patton (00:48:50):
“… if you want to use it, ask me.” And maybe I’ll say, “Yeah.” Maybe I’ll say, “No,” but at least you know who it belongs to. So probably that’s a good practice for all instructors to add that copyright notice. Just not only that, but if you did copy all or part of it from somewhere else, well, you’ll know that at least this is mine. I didn’t copy it from anybody. And then hopefully you’re getting permission for other things that you are copying. But I mean, for me, it helps me keep track of, “Did I write that?”

Brenda Ulrich (00:49:26):
Yeah.

Kevin Patton (00:49:26):
Because you don’t always know where that source was years later when you’re looking at it.

Brenda Ulrich (00:49:36):
Well, and I think also I agree with everything you’re saying. And also by doing that, you’re helping to prevent downstream copyright infringement. Somebody asks you for permission to copy it. But if they say, “I used it with permission,” then the next person is not going to think, “That’s there for the taking.” They’ll say, “He got permission from Kevin. I better go get permission from Kevin as well.” And the other thing is, in academia, it’s not just about copyright, but it’s also about plagiarism. And so by getting permission and saying where you got permission from it, you’re also not inadvertently committing plagiarism by just putting in a bunch of content and not making clear where it came from or that it was created by someone else.

Kevin Patton (00:50:15):
Well, there have been some high profile college administrators and so on, they’ve gotten-

Brenda Ulrich (00:50:21):
Yes.

Kevin Patton (00:50:23):
… called on that. And You don’t want to be in that position. I mean, even if it turns out that what you did was ethical and okay, just having those questions asked in public can-

Brenda Ulrich (00:50:33):
yeah…

Kevin Patton (00:50:35):
… work against you. So that’s a good idea there. And another thing too is these days… I mean, back when I started doing it, I don’t think this existed. Maybe it did and I just wasn’t aware of it. But I mean, nowadays, there are easy ways to build in certain levels of permission granting by using these Creative Commons licenses-

Brenda Ulrich (00:50:55):
Yeah.

Kevin Patton (00:50:55):
… and so on. And if you put that in there, yes, you can use it for non-commercial purposes with attribution or there are a lot of different options you can build into it and then still retain ownership, really. But if somebody wants to publish a textbook, and that’s another thing where this can go, because pretty much, I can’t think of any exceptions. But every textbook author I know, and I know a lot, and so do you Brenda, we’re both in the Textbook and Academic Authors Association-

Brenda Ulrich (00:51:31):
Yeah.

Kevin Patton (00:51:31):
… and we interact with other textbook authors in many different disciplines all the time, and all of them that I know, they started out as an educator and probably still are an educator.

Brenda Ulrich (00:51:42):
[Chuckles]

Kevin Patton (00:51:43):
And the content that’s in their textbook, that is based on their experience in teaching, “Here’s how I learned is a good way to explain the pituitary gland.”

Brenda Ulrich (00:51:55):
Yeah.

Kevin Patton (00:51:55):
And so I’m going to use that approach in my textbook. So as instructors, if we’re putting together a handout and you say, “Well, I’m never going to be a textbook author,” well, all those textbook authors you and I know, Brenda, said that at one time, “That’s never going to be me.”

Brenda Ulrich (00:52:14):
Yeah.

Kevin Patton (00:52:14):
“I’m never going to be writing a textbook.” And I was in that boat. I’m like, “This is silly almost.” But who knows? And then one day I was presented a contract. And in that contract, there’s a part that says that, “You are handing over the copyright of anything that’s in here.” So let’s say I made up a handout that was in the form of a table, and I essentially took that table and put it into my textbook assuming that I created it and I own it. That’s okay, I can do that. But now the textbook publisher owns it. But the other thing is, if I had copied that from somewhere without permission especially, but even with permission, I didn’t have permission to sell it to the publisher.

Brenda Ulrich (00:52:55):
Right.

Kevin Patton (00:52:56):
And so by having that on my handouts and so on, if it’s ever challenged, I can go back and say, “Well, yep, that was mine that I put in there.” And there’s that other aspect too that you just never know when-

Brenda Ulrich (00:53:13):
Right.

Kevin Patton (00:53:13):
… or how things are going to work out in your professional life, where that’s going to go.

Brenda Ulrich (00:53:20):
Yeah. I think that circles back to where we started, which is that when you get permission to use something, an image, say, one way, that doesn’t mean you have permission forever and ever for any and all ways you might want to use it. Permissions are generally limited. So the images that accompany your textbook, you’re allowed to use when you adopt the textbook to use in teaching that textbook. But it doesn’t mean you can take it out there and put it into another book that you’re publishing or use it next year when you’re not teaching that book anymore.

(00:53:54):
So I think it’s also important to keep in mind that permission that you get once is not therefore good forever after for anything you might want to use it for. Permissions are usually much more limited in scope. And so you have to look back and see. So if you got permission to put it in a handout from the author, you can’t then go putting it in a book down the road to a publisher because A, you didn’t get that permission, and B, you don’t own it. And you have to go back, or the publisher will have to go back to that author if they want to include it in the book.

Kevin Patton (00:54:21):
Okay. So I have another question, and it’s been nagging at me ever since I asked you to help us out with some of these questions. And the reason it’s nagging at me is because it bothers me that people do this. I’m in no position to be bothered by it because I have done it myself, because I was told to do it. And what it is is when I first started teaching anatomy and physiology, it was in a high school setting. So we had a textbook that the students… I can’t remember now. They either rented or it was provided by the school or whatever. So they had a textbook that was purchased by the school, but we had lab activities that were expected. And I said, “Well, do the students have a lab manual?” And they said, “Well, no, because the lab manuals, you’re writing those. And we don’t want students writing in the books because we have to use them for the next 12 years or whatever-”

Brenda Ulrich (00:55:14):
Yeah.

Kevin Patton (00:55:14):
“… until we have enough money to buy new ones. And so what you do, Kevin, is we have these three lab manuals in the prep room, and you can take any exercise out of any lab manual and you photocopy it.” Or back then we used these, they called them ditto machine spirit duplicators. And so there was a way to get a copy onto the spirit master, and then you’d run this thing, and now you’d have 50, 80, 100 copies of that lab exercise. And so that’s what part of my day was, was running these copies-

Brenda Ulrich (00:55:55):
Yeah.

Kevin Patton (00:55:56):
… of these lab exercises. And I’d maybe go in the course of a year use five from that book, and 10 from that book, and another five from the third book, and that was the end of it. And often I would keep a master photocopy or something, because then I’d want to do that next year. Or maybe I’d say, “That one didn’t work out too well. Let me find a different version of that in a different lab manual.” And I mean, I realize now based on what you’ve said so far, that’s probably not a good idea. That’s like breaking the law. That’s where the hefty fines come in. Assuming that I’m correct on that, the next thing that occurs to me is, “But everybody does it.” I mean, this is still a very widespread practice.

Brenda Ulrich (00:56:45):
Right.

Kevin Patton (00:56:46):
I don’t know that it happens that frequently at the college level, but I suspect it happens some. And I know at a high school level, it happens a lot. And I think this-

Brenda Ulrich (00:56:56):
Yeah.

Kevin Patton (00:56:56):
… happens more in schools that are really strapped for funds, which I guess-

Brenda Ulrich (00:57:03):
Yeah.

Kevin Patton (00:57:03):
… most schools are strapped in some ways for funds. But the ones that are really, really squeaking by, and they just don’t have the funds to buy a license or pay for permission or get enough lab manuals for everybody, and so they feel like, “Well, this is the only option we have.” Now, in my mind, I feel it’s like, “Well, if I have absolutely no money and somebody left that sandwich laying there while they went to the restroom, and I’m going to steal that sandwich, well, maybe you can make a case for that, but it’s not quite the same when you’re talking about stealing intellectual property by making lab manual copies.” So can you confirm whether I’m correct or not, whether that’s a good thing or a bad thing to do or what?

Brenda Ulrich (00:57:49):
Well, you are correct. Well, I’m a lawyer. So I’m not a minister. So I’m not going to weigh on good or bad. I will say it is infringement, right? It’s definitely infringement. You’re making copies without permission from the copyright holder. And I mean, I appreciate your sandwich example. But if I say I’m too poor to buy a car, does that mean I can just steal my neighbor’s car? I mean, no. So that being said, I think that there’s sort of the principle, right? Which is it’s definitely infringement. That’s pretty black and white.

(00:58:22):
The question then is, what is the risk? And I would suspect, well, A, that historically, when people were making photocopies or mimeographs or whatever it was, it was sort of below the radar because it was just within the school who the publisher wasn’t coming in and checking on what was happening. So A, it might not have been detected. And B, if you’re a publisher in the K through 12 market and you’ve got an adoption of 500,000 copies of your book to, let’s say, the Texas school system, you’re not sweating a few lab manuals. You want to keep that adoption because that’s very lucrative. And so from a publisher’s perspective, it just might not be worth it to go after the hand that feeds them in that case. They could if they wanted to, if they really thought it was starting to hit their bottom line. But most of the time, they’ll make the cost benefit analysis and say, “We don’t want to sue our best customers.”

(00:59:16):
I think you’re right that the analysis changes a little in the college market. And frankly, it changes once we’re in the licensing online world because A, it’s much easier to detect, like I was saying before. People find infringement on the internet much more than you could when things were physical. And also, part of the reason publishers have moved to time-limited licenses for a semester or for a year is to prevent exactly this kind of thing. When your license ends, it all disappears from your computer. And that’s a way they protect their secondary market and make sure every semester, students are registering and buying the work anew and we don’t have a used book market or an illicit market in copied materials. So it is partly just the cost-benefit analysis from the publisher’s view, but also, the risk, I think, has changed then back in the day when things were sort of done very locally in a sort of analog paper way.

Finding Media

Kevin Patton (01:00:19):
Well, taking a brief moment away from our featured chat with Brenda. I wanted to address the virtual elephant that’s been pushing its way into the virtual room here. If all of this talk about potential limitations on images that we can ethically use in our course means that we can’t use the media that we’re accustomed to using, what do we do? There’s no textbook that contains all images that we’d like to use to get some of the visually complex concepts of A&P across to our students. Where do we look for those extra diagrams and photos and graphs and whatever that we need for excellent teaching? Well, this is another area where The A&P Professor website has had your back all along. If you go to theAPprofessor.org/media, you’ll find a whole list of links to media collections that will allow you to supplement your current textbook media and build the best presentations for your students. If you have a favorite source of legal media already and want to share it on that list, you can do that too. Please, do that. Once again, that’s theAPprofessor.org/media.

Can I Put My PowerPoint on YouTube?

Kevin Patton (01:02:00):
A few minutes ago, I was discussing that I used to copy exercises out of lab manuals when I first started teaching. Once I realized that that was not an ethical thing for me to be doing, and I was looking for other options and not having any money to license anything or any funds available to me through my institution, one thing I did was I thought, “Well, here’s a lab exercise that walks a student through how to use a microscope properly and effectively.” My students really need that and they need some guidance beyond me just telling them what to do because when you sit there in front of the microscope, you’ll forget what I just said five minutes ago. So you need that. So I realized that I took composition class and I can write a sentence, maybe not that poem that you were talking about earlier. But I can-

Brenda Ulrich (01:03:00):
[inaudible 01:03:01].

Kevin Patton (01:03:00):
… write nonfiction and I can write how to use a microscope. So that’s what I started doing. I just started saying, “Well, you know what? I’ll just write my own.” And I do my own handout on this and that. And I eventually built up a library that was large enough that I didn’t really need a lab manual. And that’s part of what got me into this whole business of textbook authoring that I never thought I would get into. But there are other options besides using somebody else’s book. You can create some of your own materials. And does it take time? Yeah, but you do a little bit at a time and it may build up and you might be able to get a grant to do it or something like that over the summer or during your break. So there’s that and there’s that other-

Brenda Ulrich (01:03:37):
Kevin.

Kevin Patton (01:03:37):
Go ahead.

Brenda Ulrich (01:03:37):
Um.

Kevin Patton (01:03:37):
Yeah, sure.

Brenda Ulrich (01:03:48):
No, I’m just thinking your example of how to use a microscope. I mean, I think there’s also sometimes a sense among instructors that, “Well, it’s just obvious, right? If I could get the instruction manual from the microscope manufacturer and it’ll have six steps of how to set it up and use it.” And that’s not teaching. And I think sometimes people see teaching materials as just sort of like a phone book or something very rudimentary and not very creative. And I think anybody who’s written a textbook will tell you, “No, there’s so much thinking and creative effort to make this work as a pedagogical teaching material,” whether it’s how to use a microscope or the whole of anatomy and physiology. And so I think we have to not discount that textbook authors and creators of teaching materials put a lot of time and effort to make these work as teaching materials. Anybody can get the facts of subject matter, but it’s how you teach it is where the creativity comes in. And that’s where the copyrightable content comes in.

Kevin Patton (01:04:51):
I love that you made that point, Brenda. I think that many faculty and especially students don’t realize how much work and thought and research and prior experience, and yes, blood, sweat, and tears go into trying to get it all to work well as a teaching tool.

(01:05:14):
So I have one last question. I really appreciate all the time that you’ve taken with us today to help us understand these things. Several times you mentioned, in the old days when it was just brick and mortar classroom, and that’s one kind of environment, but nowadays, we have these online experiences of teaching and learning. And that got me to thinking, it’s becoming more and more common for instructors to take their… Let’s say they usually use PowerPoints for a lecture or a demonstration or something like that, and then they’ll put that online. They’ll either put it online because classes got canceled because there was a pandemic-

Brenda Ulrich (01:05:56):
Yeah.

Kevin Patton (01:05:56):
… or because there’s some disruption on campus. And so they’re closing campus for a few days or who knows what. Or just because we’ve now learned that sometimes doing some preparatory material before class makes your in-class experience more effective in teaching and learning. So let’s say you take all or part of your PowerPoint slides, which have these images from the publisher or otherwise used with permission to use them in your class. But now you make a YouTube video out of that. You record your lecture. You put it on a platform that’s open to everyone like YouTube or SlideShare or there’s a million others, and we put it out there.

(01:06:45):
And now, I might scan through there… Well, this has happened to me, not because I was looking for it. But it just so happened I look at it and, well, there’s an image from my textbook. Well, there’s another image from my textbook.

Brenda Ulrich (01:07:01):
Yeah.

Kevin Patton (01:07:01):
And I mean, is that okay for them to do that? Assuming they didn’t contact the publisher to get permission to put it on YouTube or put it out there for the public, is that fair use or does that require extra permission or something?

Brenda Ulrich (01:07:20):
That sounds like it requires extra permission. It’s the same as people are more familiar generally, in the YouTube context, of using music, putting music in your video from, say, Taylor Swift. You can’t do that. That’s her intellectual property, and you need permission to do that. And so if you’re finding your images from your book in a YouTube video and nobody got permission for that, either they had no permission at all or what permission they had was probably limited to the classroom use, and you’ve now exceeded the scope of that permission. So that is not okay.

Kevin Patton (01:07:58):
Okay. And you alluded to this kind of a use before, and I just want to sort of clarify how that may or may not apply here. And that is, what if I don’t put it on a publicly accessible platform like YouTube? What if instead, I put it in Blackboard or Canvas or one of these other online teaching platforms where the only people that can get to it are the people who are actually enrolled in my course, not everybody at the school, not even everybody in the course in the whole school, just those that are enrolled in my section-

Brenda Ulrich (01:08:38):
Yeah.

Kevin Patton (01:08:38):
… of that course? Do you think that might be considered fair use or is that still going to need probably some extra permissions?

Brenda Ulrich (01:08:48):
It’s likely going to need extra permissions. I mean, at this point, you’re outside the scope of any classroom teaching permissions because you’re not using it while you’re teaching. And then if it’s fair use, you really need to look at how you’re using it. And fair use, we haven’t really even gotten into today, but that’s a whole separate analysis. There’s a four-factor test in the Copyright Act. And what are you doing with it? Are you transforming it in some way? And that goes back to what I was saying. If you’re using an image from a textbook to teach a concept, you’re not really transforming it. You’re using it for what it was intended to do. That’s a situation where you need to get permission, because you are potentially and likely undercutting the licensing market for it.

Kevin Patton (01:09:33):
Okay. But let’s say I do a workshop at the Human Anatomy and Physiology Society. I’m getting ready to go to this year’s conference and a couple of weeks here. And let’s say there’s a workshop, and this workshop, let’s say they’re going to have the pituitary picture from Kevin Petti’s textbook, they’re going to have the one from my textbook, and they’re going to have-

Brenda Ulrich (01:10:02):
Yeah.

Kevin Patton (01:10:02):
… one from a third and fourth and fifth textbook. And they’re going to put it up there to say, “You know what? Different textbooks represent the pituitary gland differently. And I think some of them are misleading, and I think some of them are just spot on. And so let’s look at five examples here.” Now, would-

Brenda Ulrich (01:10:25):
Yeah.

Kevin Patton (01:10:26):
… that be considered transformative and fair use because they’re not really using it to teach about the pituitary? We all know-

Brenda Ulrich (01:10:34):
Right.

Kevin Patton (01:10:34):
… about the pituitary. We’re using it as sort of like a critical review of how textbooks handle pituitary images.

Brenda Ulrich (01:10:45):
Yeah, that’s exactly. That’s a perfect example of fair use because what you’re doing is transforming the purpose behind what it is there for and you’re-

Kevin Patton (01:10:54):
Okay.

Brenda Ulrich (01:10:54):
… commenting on it. And again, the fair use exception was really designed to protect other types of creative expression, whether it’s commentary or criticism or scholarship. And that’s sort of hitting all those boxes. But I think that’s a great example of fair use. I think it just gets muddier that instructors in college settings often think, “Well, as long as I’m using it in some way to teach, it’s by definition fair use.” And that is just not the case. And I think that’s where people get into trouble with it.

Kevin Patton (01:11:26):
Yeah, I hear that perspective a lot.

Brenda Ulrich (01:11:28):
Yeah.

Kevin Patton (01:11:29):
And not that I totally understand what fair use actually is, but I know it’s pretty technical and very specific and-

Brenda Ulrich (01:11:38):
Yeah.

Kevin Patton (01:11:39):
… not just a general whatever you want to do. If you’re a teacher, you’re okay.

Brenda Ulrich (01:11:44):
I was going to say, go back to your librarians. The librarians can give so much help on that.

Kevin Patton (01:11:49):
Well, that’s a great place to end this conversation. I love, love, love all the things that librarians do, but I often forget about them over there in the library. And there’s so many things they can help us with. And I wish we had more time because I’m just that kind of a guy just like, “But what if? But everybody does this.” But I mean, I got a lot of those, and you put up with many of them, and I appreciate that. And I appreciate your perspective as someone who deals with the legal aspects of this all the time, and as the training, and you’re up-to-date on how things are shaking out on the legal end of thing. And so once again, thank you very much, and we really appreciate your time.

Brenda Ulrich (01:12:38):
Thanks so much, Kevin. It was a lot of fun.

Staying Connected

Kevin Patton (01:12:43):
Well, thinking back to the segments that we just listened to in episode 150, we all learned all kinds of things about the legal issues involved in using textbook images in teaching. Intellectual property and education attorney, Brenda Ulrich, works with schools, textbook authors, and other related parties every day on these issues. And she helped clarify for us some important principles. I think it probably caused some discomfort among many of us as we listened. I know that I was and still am uncomfortable back when I learned that some of the common strategies for using images and other content from A&P textbooks and lab manuals and anatomy atlases aren’t legal, and therefore, are not ethical. Now, I try and sometimes fail, but I try to model professional ethics for my students, many of whom are going to end up in the healthcare professions where professional ethics can literally have life or death consequences.

(01:14:00):
Now, in this episode, we learned that we ought to read the license provided by publishers when they give us access to textbook images for use in our course. We probably don’t have a legal right as that license reads to use them in later semesters after we’ve already switched to a different textbook, nor do we have a right to use images from textbook or atlases that we’ve never adopted formally in our course. Brenda gave us a lot to think about and talk about with our colleagues.

(01:14:37):
Hey, why not share a link to this episode so you all can discuss some of the things you just heard? Simply tell your friends to go to theAPprofessor.org/150. That’s 1-5-0. You can also use that link to review the show notes at the episode page where you’ll find some handy links to related resources. And while you’re there, you can claim your digital credential and professional development just for listening to this episode. And you’re always encouraged to call in with your questions, comments, and ideas at the podcast hotline. That’s 1-833-LION-DEN. That’s L-I-O-N D-E-N. Or 1-833-546-6336. Or send a recording or a written message to podcast@theAPprofessor.org. I’ll see you down the road.

Aileen Park (01:15:44):
The A&P Professor is hosted by Dr. Kevin Patton, an award-winning professor and textbook author in human anatomy and physiology.

Kevin Patton (01:15:53):
The copyright to this podcast and its theme music are owned by Kevin Patton, Lion Den Incorporated, DBA The A&P Professor. All rights Reserved. Lion Den and The A&P Professor are registered trademarks.