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Guidelines for Fair Use
Summary: This handout provides a few general guidelines about fair use policies and copyright laws but no concrete legal advice. Anyone dealing with a specific legal issue or dilemma should contact a lawyer. Anyone making decisions about using multimedia in a class project should first consult the usage policy of their school or institution. The US Copyright Act contains relevant but complex sections that can inform teachers and students making a decision.
Guidelines for Fair Use
Introduction
As schools and universities increase technology use in the classroom, more students and teachers have questions about copyright law. Students are often unclear about how they can legally incorporate images, music, video, and other multimedia into classroom projects. This is not surprising. Copyright laws are very complicated, and it is often hard to find straightforward answers about educational use.
This handout provides a few general guidelines about fair use and copyright laws but no concrete legal advice. Anyone dealing with a specific legal issue or dilemma should contact a lawyer. Anyone making decisions about using multimedia in a class project should first consult the usage policy of their school or institution. The US Copyright Act contains relevant but complex sections that can inform teachers and students making a decision. (These pages are hosted by Cornell’s Legal Information Institute.)
- 17 U.S.C. § 106: Exclusive rights in copyrighted works
- 17 U.S.C. § 107: Fair Use
- 17 U.S.C. § 110: Limitations on Exclusive Rights
Please remember that companies more aggressively pursue violations that put them in a bad light or reflect poorly on them. Thererore, since a number of student projects are designed to criticize corporate images, a balance between teacher and student desires must be found in order to develop legal and fair information about corporate legal trends.
Fair Use
This handout works mostly with 17 U.S.C. § 107 on fair use, which provides the conditions that allow the limited use of copyrighted works. Again, these guidelines are general rather than specific, and courts often determine fair use on a case by case basis. Four things are considered when determining fair use:
- The Purpose of the Use
- The Nature of the Copyrighted Work
- The Amount or Percentage of the Work Used
- The Effect of the Use on the Original Work
Based on this definition of fair use, some uses of copyrighted works are more likely to be protected than others. Again, there are few hard and fast rules concerning educational approach. Uses meeting these conditions are more likely, though not guaranteed, to be protected.
The purpose of the use is educational.
Many people assume that any educational use of a copyrighted work is legal. That is not accurate. However, the law does recognize the unique situation of non-profit educational institutions when it comes to fair use issues. Section 107 specifically distinguishes between commercial and educational use. Therefore, teachers and students are more protected when using copyrighted works for classroom assignments, lessons, or projects. Purposes that are specifically mentioned in Section 107 include “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” Almost any unauthorized use of a copyrighted work that makes money will not be protected under fair use.
The new use is not widely available.
Fair use is more likely to apply when the new use is available for a limited time to a small group of people. Therefore, showing part of a movie in the classroom is more likely to be protected than posting the same clip to the internet. Similarly, using copyrighted images in a classroom PowerPoint presentation is more acceptable than making the presentation available online or putting the images on a website. Therefore, when determining the use of copyrighted work, consider time, access, and durability. Make the new use available for the shortest amount of time to the smallest group possible. Prevent others from duplicating the work for further use. Keep copyrighted works off the internet, or place them behind password protection to avoid outside access.
The copyrighted work was legally obtained.
When using a copyrighted work, get the original version legally. Buy the DVD, CD, or photo instead of pirating it off the internet. Use a legally purchased film clip or song rather than one downloaded off YouTube or Limewire. Purchase a photo instead of taking it off Google image search. This ensures that the copyright holder receives some funding for the use.
The use does not affect the copyright owner.
Uses of copyrighted works should not interfere with the copyright holder’s use of the work. This means that the new use should not make any money or be available to a large audience. Uses that allow others to access or reproduce the work, such as images or a pdf file posted on a website, can also be detrimental to the copyright owner.
The use is partial.
Reproducing only a small part of a copyrighted work is more acceptable than using an entire work. Try to use less than 10% of a movie, television show, music, or other media. Though image use does not conform easily to this standard, consider using only a few photos or illustrations rather than an artist’s entire collection. As a rule of thumb, using a smaller portion of a work is more likely to be protected. Furthermore, take only what is necessary for the purposes of the new use.
The use is transformative.
Courts often favor uses that transform the copyrighted work into something new by adding criticism or commentary to change the meaning or message of the original. Educational use is protected to allow creativity and intellectual expression, so educational expansion of the copyrighted work is more likely to be protected. Contribute commentary or analysis to an image, or include it as part of a collage or parody. Incorporate film or music as part of a larger work, or edit and remix the clips to produce a new product. Transforming a work as part of the educational process helps it fall under fair use.
The work is published.
Fair use will more likely apply to published works than unpublished works. The law wants to give the original copyright holder the rights to the first publication of a work, meaning that a work should never be used by a non-copyright holder before its publication.
Alternatives
Quite often, there is no legal use for a copyrighted work, even in an educational setting. In this or any case, it is always the best option to get permission from the copyright holder before using a work. However, time constraints and potential rejection often make this option unfeasible. In that case, consider these alternatives.
Find available works.
Many sources, such as freeimages.com and imageafter.com, provide free or cheap images that can be used without copyright violation. Try to find images offered for use instead of those protected by copyright law. Furthermore, some media is protected under creative commons licensing, which can be more flexible than official copyright law. Creative commons works also specify acceptable usage conditions.
Use homemade media.
When possible, take photos for the project instead of using those found of the internet. Generate music or footage personally to ensure that copyright law is not being violated.