Fair Use and the ACM Copyright Licensing Agreement

Two years ago, in response to frequent requests for copyright advice around the time camera-ready papers for CHI or CSCW are due, I wrote a blog post explaining the ACM copyright license. At the end I included some notes about third-party material, but I’ve gotten some inquiries specifically about that and have also had to deal with it myself recently.  In short, the process for claiming fair use of third-party material for an ACM publication is confusing at best and misleading at worst, so this post is an attempt to explain fair use and to give you an example of the way that I deal with this issue.  As always, this is not legal advice and IANYL, but I hope that this information is helpful!

Congrats, you’ve had a paper accepted to an ACM conference! Now you have to give ACM the right to publish it. Because you’re not rich enough for open access, you probably picked the license option (because I told you to?) and now have a bunch of questions on the licensing form to answer. Everything’s good until you get to this question:

How do you know if you have “third-party material” in your paper? ACM provides some guidelines, and mentions things like “figures, tables, graphs, photographs, simulations, music or audio/video clips.” So it could be things like images from data that don’t belong to you (e.g., Instagram photos) or a figure or table referenced from someone else’s publication. The first time I dealt with this it was a paper with Kurt Luther on his dissertation project Pipeline that included images of the cool creative things that study participants had made using Pipeline. Most recently, a student working with myself and Shaun Kane has a poster at ASSETS (about crowdsourcing comic book transcriptions for blind fans) and the paper includes a comic book panel.

Notice that there are two options: (1) You don’t have third-party material; and (2) You have third-party material and have the necessary permissions. So basically, I have lied several times on this form. Because fair us is not a permission. Fair use is, in fact, about the absence of permission. The super TL;DR of fair use is that it is an exception to copyright law that lets you make some use of content whether the copyright owner likes it or not. This is a very important safety valve in the law to ensure that copyright cannot squash free speech. For a ton more information on this, see the Code of Best Practices in Fair Use for Scholarly Research in Communication out of American University. I also wrote a fair use analysis of my Barbie remix, or hey, I have a whole CSCW paper about it!  (Side note: Fair use is, of course, U.S. law, though there are versions of this in other countries. It is relevant here, however, because ACM is using U.S. law.)

So whereas it should actually say “I have used third-party materials and have the necessary permissions and/or rights“, choose the second option anyway, and you will be presented with this popup window. (As a side note on “and/or rights,” that would also apply if the third-party content were, for example, public domain (like a photograph from NASA)).

ACM provides guidance on how to fill this out, but not on how to claim fair use. It links to fair use guidelines, which are decent! I’m not sure I agree completely with all of their counter-examples (absent more context) but I think this is a pretty good document for thinking about whether something might be fair use in the context of a paper.  (One thing I do appreciate about the guidelines is that it suggests that you consult your university librarian, as opposed to recommending you ask a lawyer. Good advice!)  Though the problem is, there’s still no information about how to claim fair use in practice – which is why I wrote this blog post. 🙂

Unfortunately when it comes to the form itself, there’s even more fair use confusion. Clicking on the question marks gives you more information, so let’s go through each of these, and how you might want to answer them to claim fair use.

1. ACM Citation Reference (“Where in your ACM paper or presentation the third-party material appears… each third-party figure or image reference must be noted on the form and in publication.”)  This is spot on. Remember that fair use means you don’t need permission, not that you don’t need to cite. You’ll see that on our ASSETS poster paper, the image caption includes “Image (c) DC Comics.” (We also included a cite in the references, because hey, it’s awesome to cite a comic, right?)  So in this field you should write like “Figure 1” or wherever the image + citation appears.
2. Original Third-party Source (“Where the third-party material was published or found”) Also spot on! This is where for that paper I gave the citation for the comic book. If yours is, for instance, an Instagram photo, then you could include the URL. If it’s a figure from someone else’s book, then a citation for that book.
3. Approved By (“Who approved your use in republication? Give copyright owner’s name (author or publisher) and include contact info. Note: Claims of Fair Use mostly apply to formal reviews and teaching, not to republication.”)  And here is the problematic bit. Again, fair use requires no approval. Also, the characterization of fair use here is kind of strange. I don’t think that it is purposefully misleading, but it is almost certainly misleading in practice. After all, most people using this form would be using it for the types of examples I’ve indicated – not for wholesale copied/republished content. I’m reminded of the YouTube Copyright School video, where they basically say “yes fair use exists but it is so complicated you will never understand it, so you should just get a lawyer.” As for completing this field, I’ve just written “This is fair use and does not require approval.”
4. Image Credits. I actually am not sure what is intended for this one because there’s a bug in the form (clicking on the question mark does not give you new information), and it isn’t specifically mentioned on the third-party material information page. My best guess is that they want to know exactly how it’s credited in your paper, so e.g., “Image (c) DC Comics.”
5. Date Approved (“the date on which you received permission to use this content”)  Again, no approval required for fair use, so I just put the current date.
6. Proof of Permission (“an email or pdf document granting you permission”)  This is required for the form, and again is misleading because fair use does not require permission. However, this is the perfect place to include a fair use analysis in a separate document, which is what I do.

And here is where it’s worth pointing out that I have no idea what other people have been doing when it comes to this form. I’m just assuming that my practice of writing up a fair use analysis is not a thing that most ACM authors would think to or know how to do. So… is it the norm to just say that you have no third-party material even when you do?  In which case if that’s been working all this time (i.e., apparently ACM doesn’t care) then it probably won’t hurt to keep doing that.

But if you want to make sure you’re totally on the up-and-up, here is a copy of the fair use analysis I wrote up and submitted with that form for the comics poster paper. (I have never gotten any response to these, so I can only assume that it works perfectly fine.)  There are a number of links above that have more information about the fair use factors, though what I wrote there is a pretty good template for the type of things that might be relevant:

1. The purpose and character of the use.  Criticism, education, transformation are key here. You can’t state that it’s noncommercial because even though you aren’t making money from it, ACM is (sadface). This is also a good place to state that the illustration is required to make your point from a research perspective.
2. Nature of the copyrighted work. Honestly even judges pretty much ignore this so I don’t worry about it. But it is favorable to fair use if the appropriated work is “non-fiction” rather than “fiction” (or if it’s unpublished).
3. Amount and substantiality. How much of the original did you use? The answer might be “all of it” but something that is relevant is the resolution of a photograph, for example. I usually note that I used only as much of the original as was required for my purposes.
4. Market harm. Is this material being in your paper going to harm the market for the original? Like is someone going to read your paper and then not purchase the original? This would often be irrelevant. For example, I noted that since we only used one panel from a comic, no one would read our paper instead of buying the comic. Or for an Instagram photo, since it was available online for free viewing, there was not really a market for the original anyway.

This was longwinded, but I hope it helps!  I am a huge proponent of knowing and using your fair use rights. Unfortunately I have heard too many stories from academics about choosing not to include certain content in their papers because it might be copyright infringement. Chilling effects are bad!

Feel free to ask questions in the comments!

And as a side note, I’m currently recruiting PhD students (as are many others in my department!) so if you know of anyone who is interested in these kinds of issues or lots of other things I study, please send them my way!