[Air-L] an ethical question or two

Charles Ess charles.ess at gmail.com
Mon Aug 4 23:51:19 PDT 2014


Dear colleagues,

First of all, a thousand thanks to all who have responded both on-list and
off-list: all most helpful as I continue to work through these issues.

Because of various logistical considerations, I will need another week or
so to garner more of some of the relevant information as suggested by both
on-list and off-list responses.  Presuming I thereby gain some clarity
that can further be appropriately reported on this list, as I anticipate
will be the case, I will most happily do so.
(In addition, this would seem to make for a good case study to append to
the AoIR ethics guidelines 2.0 - with any luck, will be able to write this
up one of these days.)


Again, a thousand thanks and I hope to have something useful soon as a
return favor for all of the excellent responses and helpful suggestions.

Best in the meantime,
- c.


On 05/08/14 00:59, "McLaughlin, Lisa" <mclauglm at miamioh.edu> wrote:

>It seems to me that the compelling argument for 'fair use' is that the
>individuals being represented in the article are public persons who
>clearly have made public statements or created artifacts meant to
>circulate publicly.
>
>As for the question of 'commercial' v. 'non-commercial' use, of course
>publishers such as Taylor and Francis and Elvevier are making commercial
>uses of the contents of journals. Taylor and Francis Ltd was bought in
>2004 by Informa plc, a multi-national conglomerate that specializes in
>pub- lishing and conferences in areas that include maritime and
>transport, yacht shows, finance, real estate, health insurance, telecoms,
>and law. As a former editor for a T&F/Routledge journal, I can attest to
>the fact that publishing is a commercial activity for such journals
>(journals which fail to produce a profit after a few years are no longer
>published). Most definitely, it helps to turn a profit when a publisher
>is able to rely on the unpaid labor of editors, reviewers, and authors.
>
>However, there is a fuzzy area when it comes to authors and
>commercialization. If the journal is not open access, I assume that
>Charles will have to assign ownership of the article to the journal. But,
>Charles has no commercial interest in the article (or so I assume;-) and
>will not benefit financially after the publication of the article.
>Following the embargo period, however, he has more ownership rights over
>the article--for example, Charles can re-publish it in his own edited
>collection.
>
>Regardless, I continue to think that the bottom line is that the twitter
>feeds and FB pages were made available by public figures for public
>consumption and are being used for educational purposes.
>
>Regards,
>
>Lisa
>
>
>
>On Mon, Aug 4, 2014 at 5:47 PM, Charlie Balch <charlie at balch.org> wrote:
>
>Is publication in an academic journal "non-commercial"?
>
>Charles Balch PhD
>Faculty, Department of Business & Administration
>Northern Arizona University - Yuma
>
>Office/cell: (928) 317-6455 <tel:%28928%29%20317-6455> / 287-3906
>Skype: NAUCharlie
>Google+: cvb23 at nau.edu
>   
>
>-----Original Message-----
>From: Air-L [mailto:air-l-bounces at listserv.aoir.org] On Behalf Of Dan L.
>Burk
>Sent: Monday, August 04, 2014 2:32 PM
>To: Charles Ess
>Cc: Air list
>Subject: Re: [Air-L] an ethical question or two
>
>Dear Charles:
>
>You are asking two (at least two) different questions.
>
>The first is about the right of publicity and/or privacy of the
>politicians.
>In the jurisdictions with which I am familiar, they have very little: as
>you
>have pointed out, they are public figures, acting in the public sphere,
>and
>in a democratic society there is a much stronger interest in robust
>discussion and examination of their actions than there is in maintaining a
>personal right to control their images.
>
>Stated differently, they chose to place themselves in elected office, so
>autonomously chose to place themselves under public scrutiny.  That will
>tend to negate their personal interest in controlling the images.
>
>I would hope that this analysis would play out similarly in most
>democratic
>jurisdictions, but YMMV.
>
>The second question, regarding copyright, is much trickier.  Copyright
>does
>not lie with the subject of the photo, but with the photographer (unless
>of
>course it is a selfie).  You indicated that the photos were drawn from
>Facebook and Twitter, which suggests that there may be some implied
>permission for public use, but this is only a supposition and to know you
>would need to check.
>
>Several people have now suggested that the use would be fair.  First, fair
>use exists only in a handful of jurisdictions (the U.S., and more recently
>Israel, and to some extent Korea and Taiwan).  Some other jurisdictions
>will
>have exemptions (such as "fair dealing" which is NOT fair use, although in
>Canada it is creeping closer) that might allow the use.  The EU is a
>patchwork, with exemptions varying from country to country.
>
>However you should not assume that non-commercial use of a photo of a
>politician is necessarily fair, even in jurisdictions that recognize the
>defense (witness, for example, the famous and protracted litigation
>between
>the Associated Press and Shepard Fairey for unauthorized use of a photo of
>Barak Obama that formed the basis for Fairey's "Hope" poster -- summarized
>here http://en.wikipedia.org/wiki/Barack_Obama_%22Hope%22_poster .
>Admittedly, Fairey did not help his case any by committing
>perjury/spoliation).
>
>Best, DLB
>
>> Dear AoIRists,
>>
>> I am editing a piece for a forthcoming journal issue; it includes two
>> screenshots of tweets from Members of the European Parliament (MEPs)
>> and a screenshot of the Facebook page of a politician running for
>> office in 2014, including their pictures and names.
>> These are public figures very intentionally engaged in a public
>> activity in a medium that functions as a de facto public sphere (or at
>> least an approximation thereof).
>> There is nothing in the screenshots that could be construed as
>> potentially embarrassing, much less libelous, much less potentially
>> warranting protection as private.
>>
>>
>> I have gained the impression over the past few years that both in
>> practice and in emerging guidelines codes, and law (specifically,
>> based on what [little] I know of law surrounding freedom of speech and
>> privacy issues in journalism in the U.S., the E.U., and Scandinavia),
>> it is permissible to publish these without permission from the
>> politicians in question.
>>
>> At most, if these were tweets and FB pages posted by U.S. politicians
>> aimed at U.S. voters, we would have to note that the tweets and
>> pictures were de facto copyright by their authors; to my knowledge,
>> however, there is no parallel requirement on this side of the pond.
>>
>> Of course, it's usually when I think I know a good response to an
>> ethical dilemma that I turn out to be missing something crucial - so:
>> am I missing something crucial, or are we indeed on reasonably safe
>> ground to publish the screenshots as is, no permissions required, no
>> copyright notices included?
>>
>> Many thanks in advance,
>> - charles ess
>>
>> Professor in Media Studies
>> Department of Media and Communication
>> University of Oslo
>> P.O. Box 1093 Blindern
>> NO-0317
>> Oslo Norway
>> email: charles.ess at media.uio.no
>>
>>
>>
>>
>>
>>
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>>
>
>
>--
>School of Law
>University of California, Irvine
>4500 Berkeley Place
>Irvine, CA  92697-8000
>Voice: (949) 824-9325 <tel:%28949%29%20824-9325>
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>-- 
>For MJF course waitlist, go to this site: http://units.miamioh.edu/mjf/
>
>
>Please note that my e-mail address has changed to mclauglm at miamioh.edu.
>Messages sent to my former address will no longer be forwarded after May
>31, 2014.
>
>
>Lisa McLaughlin, Ph.D.
>
>Associate Professor, Department of Media, Journalism & Film and Women's,
>Gender, & Sexuality Studies Program
>Miami University-Ohio
>USA
>
>Contact:
>Department of Media, Journalism & Film
>Williams Hall
>Miami University
>Oxford, OH 45056
>USA
>Tele: 513-529-3547
>Fax: 513-529-1835
>Email: mclauglm at miamioh.edu
>
>
>
>
>





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