Up in Arms: An Intellectual Property, Copyright, and Fair Use Annotated Bibliography

Rather than celebrating the landscape of intellectual property, scholars provide concerned
critique and often call pending copyright cases legal battles. DeVoss and Porter describe those
battles as "skirmishes" (189). Ashley Hall et al. described the era of Copyright 2.0 as guerilla
warfare (182). This confrontational rhetoric appears in most copyright scholarship in Rhetoric
and Composition; the battle takes many forms, including fighting excessive copyright and the
unwillingness to acknowledge or allow fair use. To combat the enemy, as it were, this annotated
bibliography aims to create a conversation about the ways in which compositionists, equipped
with knowledge, can fight in the copyright fray. In order to fight the good fight, users must
understand the extent and limits of copyright and be prepared to exercise the right to fair use. In
effort to fight, heres an excellent transition, fairly used: Now remember, kid. First, analyze the
situation. Don't just barrel in there without thinking, eh? (Hercules).
After analyzing the situation, compositionists might decide they want to join the fight,
like the scholars listed in this bibliography, as well as many others. In order to do so, they must
equip themselves with knowledge of the law and the undefined spaces between the ruling. Most
scholars discussing intellectual property start with a historical understanding of the law: 17 US
Code 107, the Fair Use Doctrine.
In determining whether the use made of a work in any particular case is a fair use the
factors to be considered shall include
(1) the purpose and character of the use, including whether such use is of a commercial
nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work
as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
(17 US Code 107)
Each creative work is unique so precedent doesnt easily transfer. However, the skill of analyzing
and defending fair use must be used in each case. Composition teachers must understand the
laws and exceptions well enough to teach and facilitate discussions about intellectual property
with their students.
The approaches to the battle differ. Some scholars like Barlow, Herrington, Lessig, and
the collective from CCCC-IP argue that educators need to exercise their right to fair use or risk
losing it altogether. As a collective, the Rhetoric and Composition community has seen the
diminishing and increasingly punitive approach to "infringements" of copyright, under which fair
use belongs. Members of the discipline worry that avoiding addressing this affront with a handsoff approach will destroy fair use and thus free speech (Barlow, Herrington, Lessig). Others
dismiss this passive approach as bad pedagogy (CCCC-IP). They hold themselves and each other
responsible for lobbying for broader applications of fair use policies and for creating a discourse
that changes the nature of ownership/authorship for students (DeVoss and Porter, Logie,
Lunsford and West). Scholars also argue that teaching students common composition tools, such
as avoiding plagiarism, can be done well through using popular culture examples of parody or
sampling (Hall et al, Hess), while others point to the social implications of stringent fair use and
copyright policies (Lunsford, Herrington).

This annotated bibliography has some limitations. Namely the scholarship I have selected
for this bibliography represent a position more biased toward the copyleftist perspective, a
popular perspective in Rhetoric and Composition scholarship. Additionally, this bibliography
only briefly addresses a large amount of intellectual property scholarship. If time and space
allowed, I would site full books and collections rather than individual chapters and articles (e.g.,
Steve Westbrook's Composition and Copyright: Perspectives on Teaching, Text-making, and
Fair Use). However, I have selected either the most prominent pieces that most often get cited or
work that is provocative and forward unique perspectives on the topic. The works cited here are
also more heavily weighted toward theoretical treatments of intellectual property rather than
texts that offer concrete ways to incorporate fair use in a classroom, but that too is indicative of
the work I found most readily with the disciplinary publications. To make reading the
bibliography more accessible, I have broken the bibliography into three categories: law, theory,
and practice and pedagogy.

Law
Bielstein, Susan M. Permissions, a Survival Guide: Blunt Talk About Art As Intellectual
Property. Chicago: University of Chicago Press, 2006. Print.

Bielstein emphasizes the influence of money on the existence of stringent law and
copyright litigations. She criticizes copyright laws and deems them to be a symptom of
greed and not a moral defense of the author/artist. Bielstein focuses on securing rights
and enacting fair use of images (in non-academic spaces); she briefly considers the role
of using images fairly in the classroom: Did I transform the image? Do just copy it?
Bielstein also provides templates for usage requests and tips for publishing images in

scholarly work as well as a price breakdown of permissions and usage fees from the work
itself.
Herrington, TyAnna K. "The Interdependency of Fair Use and the First Amendment."
Computers and Composition 15.2 (1998): 125-143. ScienceDirect. Web. 15 Feb. 2015.
Targeting the connection between fair use and the right to free speech, Herrington
details the National Information Infrastructure (NII) White Paper (1994) that aims to
reduce access to creative works. However, fair use permits copying for social critique, so
Herrington argues that the NII White Paper is an attempted infringement on the publics
right to critique and participate in a "democratic dialogue." In other words, the NII White
Paper poses an enormous risk to the right of free speech because it limits access, thereby
determining what can be copied and who can be inspired to copy. Herrington writes
primarily to encourage educators to exercise their rights. According to Herrington,
policymakers want to deny your and your students right to cultural and social critique;
these attempts, if successful, would have larger social implications like the ones
mentioned in Andrea Lunsfords "Rhetoric, Feminism, and the Politics of Textual
Ownership."

Hunter, Dan. The Oxford Introductions to U.S. Law: Intellectual Property. Oxford: Oxford
University Press, 2012. Print.
The Professor of Law at New York Law School introduces this text with the aim
of balancing theory and practice as they relate to intellectual propertys various branches.
He documents intellectual propertys origin and claims that the 1990s dramatically
changed the law and views of sharing/copying, especially in regards to the music

industry. Hunter draws the dichotomy between public and private rights but seems to
endorse a copyleftist perspectivethat the laws are solely aimed at protecting corporate
interests rather than those of the individual or creator.
Lessig, Lawrence. The Future of Ideas: The Fate of the Commons in a Connected World. New
York: Vintage, 2002. Print.
Lessig predicts the end of the Internets current iteration, one made of sharing
culture, prolific copying, and free exchange. While it is the reason for growth and
popularity, the free nature of the Internet will be the reason for its downfall. Lessig
blames the confusion surrounding property. Who owns what on the Internet? Selfish
ownership impedes creativity because the inability to copy or derive is like creating in a
vacuum: "You're totally free to make a movie in an empty room, with your two friends"
(5). Extensive copyright law costs our culture new creative works because creators have
too many obstacles to overcome, such as Lessigs example: movie creators must ask
permission to show certain images on screen, even furniture. Lessig asserts that tighter
control over copyrightable texts does not benefit the greater good. Creativity will die if
users cannot copy to some extent, as Lessig argues; the very nature of creation involves
borrowing from what one already knows.

Logie, John. "Response to Part I'An Act for the Encouragement of Learning' vs. Copyright
2.0." Copy(write): Intellectual Property in the Writing Classroom. Eds. Martine Courant
Rife, Shaun Slattery, and Dnielle Nicole DeVoss. Anderson: Parlor Press, LLC, 2011.
149-156. Print.
Logie develops a historical understanding of copyright and numerates a type of
legislation that he calls "Copyright 2.0." Copyright 2.0 is a patching of original
copyright which only accounted for analog technologies. Copyright 2.0 tries to account
for the ease and access to copying in the digital era. Copyright 2.0 is a conservative
approach to copying and strictly regulates users who copy, fairly or otherwise. Logie
points out that some critics contest the term 2.0 because it implies improvement or
overhaul, when in reality Copyright 2.0 is patched not rewritten. Logie argues for a new
copyright system, one that accounts for changing notions of ownership and authorship
and the incredibly influential digital culture and affordances.
Poltorak, Alexander, and Paul Lerner. Essentials of Intellectual Property: Law, Economics, and
Strategy. 2nd ed. Hoboken: Wiley, 2011. Print.
Poltorak and Lerner provide clear and concise definitions of intellectual property
and its related concepts and tend to emphasize trickier parts of the copyright/fair use law.
For example, copyright protects an ideas expression and not the idea itself. Poltorak and
Lerner also point out that if a work doesnt have a copyright symbol that its not
necessarily free to copy.

Tushnet, Rebecca. "Judges as Bad Reviewers: Fair Use and Epistemological Humility." Law &
Literature 25.1 (2013): 20-32. Google Scholar. Web. 19 Feb. 2015.
Law school does not train judges to be literary critics, and therefore, judges may
not make the most educated verdicts about literature. A piece of creative work (original or
inspired) may have more than one interpretation because a text has contains explicit and
implicit meanings, Tushnet argues. A judge might see just one meaning in a text due to
their inexperience critically reading creative texts. This may lead them to decide that the
work isnt fair, thereby damaging the integrity of fair use and setting a precedent of
empowering copyright holders at the creators expense. "Epistemological humility" is the
solution. Judges must accept the possibility that another reader could interpret the text
differently than she. To do this, Tushnet urges judges to be humble, consult other
audiences, and think from the perspective of another readership to determine a texts
various and competing meanings that might constitute fair use.

Theory
Barlow, Aaron. "The 'Fair Use' Challenge." The CCCC-IP Annual: Top Intellectual Property
Developments of 2010 (2011): 23-25. Web. 12 Feb. 2015.
Barlow argues that fair use is dying because copyright-purchasing companies like
Righthaven LLC target ordinary users with lawsuits; the situation weakens fair use as a
viable right because an undefended right is weak. Due to a lack of finances, most users
cannot contest a lawsuit. In addition, Barlow points out that each publishing company,
website, or even individual writers construct their own fair-use policies. Nonstandardization fosters exploitation of the law, infringement of the users rights, and the

creation of confusing gotcha moments that trap users. Barlow implies an ethic of lawful
consistency; the copyright research provided in this bibliography demonstrates that this
consistency is absent, especially "ethic" on the part of the copyright holder. Barlow
disagrees with scholars who ask universities to develop new policies as that reinforces
inconsistency and, instead, supports CCCC-IP's view in "Use Your Fair Use," where the
authors encourage teachers to break university policies and follow the law itself. Outside
the university, writing instructors should to use their rhetorical abilities to promote the
broadest interpretation of fair use.
DeVoss, Dnielle Nicole, and James E. Porter. "Why Napster Matters to Writing: Filesharing as a
New Ethic of Digital Delivery." Computers and Composition 23.2 (2006): 178-210.
ScienceDirect. Web. 15 Feb. 2015.
The primary exigence of this work is to ask compositionists to think about digital
medias influence on the composition classroomespecially those digital media that
challenge a traditional view of writing, authorship, and ownership. The authors detail
Napsters history as well as look at the cultural and legal aftershock of its existence,
death, and its classroom application. Napster massively influenced American culture
because it changed the nature of the Internet, providing a site for incubating new and
changing ideas about ownership. Students today hold these shifted ideas about sharing
culture.

Galin, Jeffrey. "The Fair Use Battle for Scholarly Works." Copy(write): Intellectual Property in
the Writing Classroom. Eds. Martine Courant Rife, Shaun Slattery, and Dnielle Nicole
DeVoss. Anderson: Parlor Press, LLC, 2011. 3-27. Print.
Galin, a former co-chair of the CCCC-IP, opposes the threat of overzealous
copyright holders and argues that the greater good of humanity should surmount the
rights of individual copyright holders. Scholars must be willing to learn and fight for their
rights because these rights have been, are, and will continue to be taken if scholars do not
provide resistance. For example, Lawrence Lessig established a valuable precedent with
Carol Loeb Shloss, a scholar who wanted to publish using some quotes from James
Joyce's work. Shlosss work was fair because it passed the four-factor test, but the James
Joyce estate refused to let her to use any of his work. When Shloss and Lessig took the
case to court, Shloss won; she fought against the Joyce estate from infringing on her
rights. Scholars can be resistant to overactive copyright by knowing which resources can
be called on if confronted with a lawsuit such as Chilling Effects Project, Berkman
Center for Internet and Society at Harvard Law, the Electronic Frontier Foundation,
Creative Commons, the Fair Use Project, and a number more. Additionally, Galin argues
that academics should change their own publishing culture, publish, and create more
open-access materials and tools.
Lunsford, Andrea Abernathy. "Rhetoric, Feminism, and the Politics of Textual Ownership."
College English 61.5 (1999): 529-544. JSTOR. 12 Feb. 2015.
Copyright law and the "gold rush" culture that surrounds it commodifies the
author, particularly in corporate spaces. This system disenfranchises all creators,
especially women. Lunsford crafts a humanizing perspective of the term "intellectual

property," highlighting the words historical significance, i.e. the ownership of women
and people of color as property. Thus, Lunsford argues, scholars should create a new
discourse and culture concerning ownership and authorial property in the composition
classroom. Lunsfords definition and approach invites scholars to examine how
intellectual property law affects social hierarchies. The digital space equalizes students
and scholars, young and old, male and female; the Web provides them a platform.
Imposing harsh copyright and anti-access legislation steals the right to speak from these
historically underprivileged groups and bestows this right almost exclusively to the white
male population that owned it before the digital revolution.
Lunsford, Andrea A., and Susan West. "Intellectual Property and Composition Studies." College
Composition and Communication 47.3 (1996): 383-411. JSTOR. Web. 12 Feb. 2015.
Cultural notions of authorship influence the nature of the US copyright laws.
Increasingly conservative laws do not fulfill copyrights original goal: that is, to
contribute to the greater good and its progression. For example, the Humane Genome
Project patents vital biological information and cures for humanities' diseases. Patenting
this kind of information prevents its widespread distribution, use, and, eventually, the
medicine itself from reaching the consumers, particularly the underprivileged. Contrary
to popular belief, copyright often does not serve the creators. The copyright and the wirefor-hire systems protect the employers or publication companies, rather than the
individual creator. To tackle this detrimental system, composition teachers should do two
things: 1) develop a stance and be an activist, as the legislation around intellectual
property affects the work that scholars are permitted to do, despite its educational intents
2) develop a sense of responsibility in how teachers assume the embodiment of

knowledge/authorship. What lessons about ownership and authorship are scholars

teaching, directly or indirectly, in the composition classroom? Lunsford and West also
describe the connections between authorship, copyright, ownership, and plagiarism, as
they see all of these things as intimately tied. However, the essay asks composition
teachers to see "rhetorical invention" differently, but does not provide any suggestions for
how to enact this in a classroom.
Moore Howard, Rebecca. "Plagiarisms, Authorships, and the Academic Death Penalty." College
English 57 (1995): 788-806. JSTOR. Web. 16 Feb. 2015.
Students patchwrite when they selectively alter an existing text. Moore Howards
article responds primarily to views of plagiarism both in the classroom and on an
administrative level. However, she briefly mentions copyright and argues that
conservative views of authorship are similar between anti-patchwriting and copyright.
These views demarcate between producers and consumers (i.e. writers and readers).
While patchwork doesnt require a discussion about copyright, the attitudes towards,
around, and about patchwriting certainly belong in a conversation about copyright. The
problem all boils down to the necessity to draw a hard line between who is producing and
who is not, who is the author and who is not, and who owns something (and therefore has
the right to distribute/use) and who does not.
Westbrook, Steve. "Visual Rhetoric in a Culture of Fear: Impediments to Multimedia
Production." College English 68.5 (2006): 457-479. JSTOR. Web. 19 Feb. 2015.
While textual copyright is tenuous and shaky at best, image usage is even more
questionable because transforming images is more difficult than simply copying them.

Westbrook argues that fear of copyright infringement prevents teachers and students from
doing experimental work with visual rhetoric and multimedia composition. In 2006,
Westbrook notes that instructors are not asking students to produce visual rhetoric and
multimedia compositions but instead to imagine rather than actually participate in
mark-making activities. Students cannot shape, but must be shaped by, culture. If
students do multimedia work, they are often prevented from circulating, stripped of
agency. Corporations often abuse copyright law to protect their companys image, which
is a form of censorship. Abused copyright means control over students, teachers, and
users writ large (see Lessig). This approach teaches students that their production outside
of the classroom is illegitimate and in no way tied to the lessons inside the classroom.

Practice and Pedagogy

CCCC Caucus. "Use your Fair Use: Strategies Toward Action." College Composition and
Communication 51.3 (2000): 485-488. JSTOR. Web. 16 Feb. 2015.
Educators may reproduce copies for classroom use. Rather than assuming a "use it
or lose it" approach like many other articles of its kind, CCCC Caucus offers several
quick tips for exercising the right to fairly use, such as avoiding compliance to overlyrestrictive institutional policies and educating copy shops to make handbooks for
teachers. The authors acknowledge that fear and ignorance of the law may cause
complacency. They argue that using fairly is good pedagogy.

Hall, Ashley, Kathie Grossett, and Elizabeth Vincelette. "Parody, Penalty, and Pedagogy."
Copy(write): Intellectual Property in the Writing Classroom. Eds. Martine Courant Rife,
Shaun Slattery, and Dnielle Nicole DeVoss. Anderson: Parlor Press, LLC, 2011. 179204. Print.
"[A]ctivist pedagog[es]" should use YouTube and parody to raise students
awareness of their own composing practices in and out of the classroom. Using a
different materiality, such as YouTube, changes the conversation from "text to context."
This lesson translates easily to fair use and the four factor test because using fairly
depends on the expression and context of use. To facilitate this, Hall et al. provide a stepby-step assignment for students as well as a grading rubric. However, understanding the
interface along with the genre is a class-privilege issue.
Hess, Mickey. "Was Foucault a Plagiarist? Hip-Hop Sampling and Academic Citation."
Computers and Composition 23.3 (2006): 280-295. ScienceDirect. Web. 16 Feb. 2015.
Researched academic-paper writing is similar to hip-hops composing process
known as "sampling," the selective arrangement of old and new material used to craft
something new. Hess argues that by learning to sample, students can better understand the
process of incorporating scholarly work into their papers, as it is a form of "textual
revision." He also argues that "reverie" for the scholarly material disempowers students.
Sampling builds on existing material, and the (hip-hop) community holds the new piece in
high-regard. Thus, sampling can help students transcend that dominant/submissive voice
dichotomy while writing their papers. This approach asks educators and students to
consider a familiar composing process in a different way because, as Ashley Hall et al.

suggest, materiality changes the nature of the conversation and teaches students something
new or different.
Hobbs, Renee, and National Council of Teachers of English. Copyright Clarity: How Fair Use
Supports Digital Learning. Thousand Oaks: Corwin Press, 2010. Print.
Teachers fears of copyright infringement and ignorance of fair use rights cause
students to miss out on critical lessons and important learning opportunities. In addition,
users are suffering. For example, the filming industrys overly protective practices, such
as scrambling and anti-copying technologies, create an issue of material access, even
when using material fairly. Pirate(r)s often obtain this material either way, but without
fair use intentions. The system does not punish them but users trying to legally obtain and
use these texts. Hobbs warns teachers to beware of intentional misinformation designed
to cause fear and deter using fairly because students education benefits them most when
addressing real audiences about real issues in real spaces. In other words, students learn
more when they actually participate in conversations, not imaginary scenarios. However,
stringent copyright law is detrimental to students because it influences what students can
and can't learn and in what ways. In the past, no one questioned fair use when copying
occurs within the four walls of a classroom, but strictly-analog paper assignments are
diminishing with the introduction of the Internet and digital media in classrooms. Hobbs
argues that scholars should know and protect their rights simply by using them. While
fair use does not protect every classroom activity, it protects many. Some additional
resources are provided for holding a copyright development workshop, such as a
compilation of copyright laws.

Rife, Martine Courant. "The Fair Use Doctrine: History, Application, and Implications for (New
Media) Writing Teachers." Computers and Composition 24.2 (2007): 154-178.
ScienceDirect. Web. 23 Feb. 2015.
Fairly using is akin to avoiding plagiarism in the classroom. The difference is that
fair use does not require attribution. However, both have social repercussions for
violation, and both ask students to consider rhetoric and interpretation. In response to
new digital technologies and approaches to learning in the classroom, Rife argues that
instructors need to teach plagiarism, as it pertains to print, but also teach fair use, as it
pertains more so to multimodal composing methods. Instructors should not transfer their
disregard for legal policies on to their students, but rather they should stimulate fair use
discussions and strategies for self-interrogation in the classroom; it is implied that this
transfer is irresponsible. Rife gives three recommendations for teaching fair use: situate
it in the actual language of the law; teach it using real, prior and potential, scenarios;
and model [good behavior] when teaching.
Westbrook, Steve. "What We Talk about When We Talk about Fair Use: Conversations on
Writing Pedagogy." Copy(write): Intellectual Property in the Writing Classroom. Eds.
Martine Courant Rife, Shaun Slattery, and Dnielle Nicole DeVoss. Anderson: Parlor
Press, LLC, 2011. 159-177. Print.
Westbrook begins by building the idea of a shared common languagesome
things are copied, no matter what legislation is created. Westbrook also complicates what
teachers have thought of as fair use in the classroom and later problematizes the way in
which we approach these issues with students. When educators encourage students to
create digital texts and post them online, the fair use model is complicated. This is not a

new argument, but Westbrook uses this exigence to talk about how language influences
students to think about copyright, giving them the wrong ideas on either end of the
spectrum (overly liberal or conservative). Educators rarely find a balance, giving students
too much power or stripping students away of any rights and agency. Westbrook opposes
copyright as imperative (i.e. permission must always be requested) and further explores
the language in textbooks using this kind of misdirected rhetoric, which avoid explaining
fair use in an accessible or right way. Westbrook, then, argues that writing instructors
should import the four-factor test into the writing classroom. Using Rife's work, he argues
that the four-factor test would educate students about their rights, and in doing so, teaches
students ethics, influences future copyright law, and increases student agency in
"rhetorical decision-making."