Textbooks to Slides: IP Attorney Brenda Ulrich on Legal Image Use in Anatomy & Physiology | TAPP 150 - The A&P Professor

Episode Transcript
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Kevin Patton: Former United States Senator (00:00):
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Alan Simpson once stated, "If you have integrity, nothing else matters. If you don't have integrity,
nothing else matters."Aileen Park:
Welcome to The A&P Professor, a few minutes to focus on teaching human anatomy and physiology

(00:21):
with a veteran educator and teaching mentor, your host, Kevin Patton.

Kevin Patton: In episode 150, intellectual property (00:29):
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attorney, Brenda Ulrich, answers my questions about using textbook images in teaching.
A while back, I got a couple of inquiries about proper use of textbook images in teaching. But

(00:56):
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

(01:21):
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.

(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,

(02:03):
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

(02:24):
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

(02:45):
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.And by the way, you might be interested to

(03:06):
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

(03:30):
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.
Well, hi, Brenda. Thanks for stopping by and talking with us about some questions that many

(03:56):
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:
Thanks, Kevin. I'm happy to be here.Kevin Patton:

(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

(04:37):
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.

(04:58):
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

(05:25):
of different things I can use images for as I'm teaching my students? So that's okay, right?

Brenda Ulrich: So yeah, I think generally speaking, (05:31):
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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,

(05:52):
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.

(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,

(06:34):
"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

(06:56):
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:
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

(07:19):
will come up, and I just scroll down and click, "Yeah, I agree," and I don't go any further.

Brenda Ulrich: Yeah. (07:25):
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Kevin Patton: So you're saying that really, (07:25):
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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:

(07:45):
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: Sure. (07:55):
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Brenda Ulrich: And they might have good advice for (07:55):
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you on how to best utilize them.Kevin Patton:
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

(08:20):
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

(08:40):
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

(09:02):
images out of that in my teaching?Brenda Ulrich:
No.Kevin Patton:
Okay.Brenda Ulrich:
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,

(09:26):
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: Okay. But I'm thinking to myself, "What if I (09:48):
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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

(10:09):
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,

(10:30):
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

(10:55):
it on my test?Brenda Ulrich:
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

(11:16):
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

(11:36):
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.
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

(11:59):
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,

(12:20):
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.
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

(12:43):
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

(13:03):
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.
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,

(13:25):
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,

(13:49):
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

(14:09):
to the details of that, but just know it's not as unencumbered as in the classroom.
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

(14:31):
making content available to students outside the classroom, you're on much shakier ground from a
copyright perspective.Kevin Patton:
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

(14:52):
me find it or?Brenda Ulrich:
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

(15:16):
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

(15:41):
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:
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,

(16:08):
"We did? How do I get that?" And that usually makes them really happy too, because then they
made a good choice-Brenda Ulrich:
Exactly.Kevin Patton:
... 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:
Okay.Kevin Patton:
... this is really a beautiful image from that anatomy atlas that I have. I checked it out with

(16:34):
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:
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:

(16:55):
Okay.Brenda Ulrich:
... 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

(17:19):
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:

(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,

(18:02):
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.

(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

(18:54):
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:
Yeah.Kevin Patton:
But that book that I have on my shelf, this particular book, it's a reproduction that was

(19:18):
published in commemoration of, I don't know, the 400th anniversary or something of the original
publication.Brenda Ulrich:
Yeah.Kevin Patton:
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

(19:43):
to that big commemorative edition-Brenda Ulrich:
Right.Kevin Patton:
... 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

(20:04):
recent copyright, but those-Brenda Ulrich:
Yeah.Kevin Patton:
... images are from way, way long ago.Brenda Ulrich:
Yeah.Kevin Patton:
So are those images fair game?Brenda Ulrich:
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

(20:27):
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

(20:49):
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

(21:14):
added. But just that single image is still in the public domain. And so you can still use that.
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

(21:37):
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,

(21:57):
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: I think I follow that. So- (22:16):
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Brenda Ulrich: Sorry. I've always loved the (22:18):
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historical context of these things.Kevin Patton:
... 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

(22:45):
some anomaly that isn't commonly found in humans. And he just assumed that everybody has this-

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

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

Brenda Ulrich: Right. (23:06):
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Kevin Patton: ... how science progresses. (23:07):
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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,

(23:33):
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-

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Kevin Patton: ... tours around Italy looking at (23:44):
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the originals of some of these-Brenda Ulrich:
Right.Kevin Patton:
... 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:
Right.Kevin Patton:
"... that is from the way we represent those things today." So I think a lot of us

(24:07):
do that. So that's very useful information, real practical use for most of us, if not all of us.

Brenda Ulrich: I can pick up something, (24:13):
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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

(24:37):
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.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...

(24:59):
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

(25:19):
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.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,

(25:40):
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,

(26:00):
which were not created for classroom teaching.Kevin Patton:
All right. That makes sense. 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,

(26:28):
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

(26:52):
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.I got all kinds of questions that are based on

(27:18):
what we've been talking about-Brenda Ulrich:
[chuckles].Kevin Patton:
... 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

(27:44):
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: Okay. (27:57):
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Kevin Patton: ... or one of my own textbooks. And so I'm going (27:57):
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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:
Yeah.Kevin Patton:
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,

(28:20):
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?

undefined

Kevin Patton: And now I'm using my textbook, (28:33):
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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

(28:59):
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: So I guess I'm going to (29:22):
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turn it back on you and say, well, what if the other Kevin did what you're talking about?

Kevin Patton: Oh, he'd never do that. (29:27):
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Brenda Ulrich: What if he said, "Boy, (29:32):
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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,

(29:54):
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.
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

(30:14):
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,

(30:35):
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: That brings a couple of (30:45):
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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

(31:09):
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

(31:31):
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:
Yeah.Kevin Patton:
... cheating on anything. So there's that too.Brenda Ulrich:
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

(31:56):
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

(32:16):
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.So you can't assume whether you're being ethical

(32:38):
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

(32:58):
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: Yeah, that's a good (33:09):
undefined
point. And I want to circle back to that hefty fine thing in a couple of minutes because-

undefined

Kevin Patton: ... that's concerning. But- (33:15):
undefined

Brenda Ulrich: Sure. (33:17):
undefined

Kevin Patton: ... before we do that, there's another thing that, (33:18):
undefined
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

(33:44):
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.

undefined

Kevin Patton: So can I just give him a call or (34:02):
undefined
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-

undefined

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

undefined

Kevin Patton: ... that was paid in some way, (34:36):
undefined
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: No, he can't. That is part of the book (34:55):
undefined
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

(35:19):
even if it's his text, he does not control the permissions for that. It's the publisher.

Kevin Patton: Okay. Yeah, so that makes sense, because I get (35:25):
undefined
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."

undefined

Kevin Patton: "Well, your name is on the (35:49):
undefined
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.
So getting back to this hefty fine thing. All right. So let's say I don't know Kevin Petti,

(36:16):
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.

(36:36):
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:
Yeah.Kevin Patton:
But in any case, so what are the chances that somebody's going to find that? And not only that,

(37:00):
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:

(37:21):
Yeah.Kevin Patton:
And how likely are those to be applied?Brenda Ulrich:
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:
All right. Glad to hear that. That's all I need to know.

Brenda Ulrich: Take that one off the (37:32):
undefined
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,

(37:52):
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,

(38:12):
of course, register all their publications, all their books with the Copyright Office.
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,

(38:37):
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

(39:01):
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.

(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

(39:43):
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.

(40:05):
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.
Now, in truth, most of the time, these things settle for a lot less than that.

(40:28):
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?
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,

(40:53):
"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,

(41:17):
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:

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

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

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

(42:12):
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

(42:36):
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.Not that it'll be all that easy to explore

(43:04):
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

(43:28):
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.You mentioned the idea of if you write a poem,

(43:57):
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-

undefined

Kevin Patton: ... to help my students (44:11):
undefined
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:
Yes.

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.css-14f5ked{margin:0;word-break:break-word;display:-webkit-box;-webkit-box-orient:vertical;box-orient:vertical;-webkit-line-clamp:2;overflow:hidden;}Textbooks to Slides: IP Attorney Brenda Ulrich on Legal Image Use in Anatomy & Physiology | TAPP 150