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What is "Fair Use"?

Section 107 of the U.S. copyright law, provides for limitations on exclusive rights "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research" (17 U.S.C. § 107).  This provision is called Fair Use.

Your use must be "fair and reasonable" to qualify as Fair Use.

FAIR USE: 4 FACTORS

The Four Fair Use Factors will help to determine whether or not your fair use claims are valid:

1. Purpose and character of the use; whether it is commercial (used for monetary gain) or non-commercial (used for educational purposes
2. Nature of the copyrighted work - Is it based on something factual, such as a biography? Or is it purely creative fiction?
3. Amount/Portion of the work used in relation to the whole
    * Note: Many sources may recommend that using 10% of the total work constitutes fair use, but this number varies on a case-by-case basis, depending on the users' needs.  If you can justify that you are using no more or less than necessary to make your point and/or instruct your students, then your fair use claims may be validated.
4. Potential market value - how does your use affect the value of the copyrighted work's market value?

You also must consider the transformative-ness of the use.  This relates to the purpose of the use, the amount/portion of the work that is used, and how the creator's product is changed by the use.  This is often the deciding factor in copyright court cases.

Fair Use Evaluators

Tools and checklists for instructors:

What are the Best Practices for Fair Use?

Every copyright case should be reviewed as a single entity.  "Best Practices" documents/sites offer tips and suggestions that can help understand the issues involved in using copyrighted material in online and face-to-face classrooms:

• Code of Best Practices in Fair Use for Academic and Research Libraries
• Code of Best Practices in Fair Use for OpenCourseWare
• Code of Best Practices in Fair Use for Online Video
• Documentary Filmmakers' Statement of Best Practices in Fair Use
• SCMS Statement of Best Practices in Fair Use  in Teaching for Film and Media Educators -- published online and in Cinema Journal (v.47, no. 2, Winter 2008)
• Code of Best Practices in Fair Use for the Visual Arts | College Art Association
• Code of Best Practices in Fair Use for Scholarly Research in Communication | Center for Media & Social Impact

Transformative Use

In his article, "Toward a Fair Use Standard," Judge Pierre Leval writes:

"if . . . the secondary use adds value to the original - if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings - this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society" (Leval 1111).

Leval also states that transformative works can include "criticizing the quoted work . . . parody, symbolism, aesthetic declarations" (Leval 111).

Judge Leval was a Court of Appeals Justice for the Second Circuit, serving from 1993-2002.

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Leval, Pierre N. "Toward A Fair Use Standard." Harvard Law Review 103.5 (1990): 1105. Business Source Elite. Web. 20 Nov. 2014.

Fair Use in the Classroom

Fair Use can be applied in different ways depending on the nature of the copyrighted material AND the method of instruction (online or face-to-face).

Check out Webster University's comparison of different scenarios:

TEACH Act of 2002

The Technology, Education and Copyright Harmonization (TEACH) Act can be used as a model for copyright compliance in distance education. See section 110 (2) of the U.S. Copyright Law.

Complete films/videos cannot be integrated into online course management systems.  The TEACH Act allows for "reasonable and limited" portions of films.

For face-to-face classroom situations, please review section 110 (1) of the U.S. Copyright Act.

Check out Duke University's helpful TEACH Act Flow Chart.

Common Myths for Fair Use

From the Center for Media & Social Impact

IF I'M NOT MAKING ANY MONEY OFF IT, IT’S FAIR USE.

Noncommercial use is indeed one of the considerations for fair use, but it is hard to define. If people want to share their work only with a defined closed-circle group, they are in a favorable legal position. But beyond that, in the digital online environment, wholesale copying can be unfair even if no money changes hands. So if work is going public, it is good to be able to rely on the rationale of transformativeness, which applies fully even in "commercial" settings.

IF I’M MAKING ANY MONEY OFF IT (OR TRYING TO), IT’S NOT FAIR USE.

Although nonprofit, personal, or academic uses often have good claims to be considered "fair," they are not the only ones. A new work can be commercial--even highly commercial--in intent and effect and still invoke fair use. Most of the cases in which courts have found unlicensed uses of copyrighted works to be fair have involved projects designed to make money, including some that actually have.

FAIR USE CAN’T BE ENTERTAINING.

A use is no less likely to qualify as a fair one because the film in which it occurs is effective in attracting and holding an audience. If a use otherwise satisfies the principles and limitations described in this code, the fact that it is entertaining or emotionally engaging should be irrelevant.

IF I TRY TO LICENSE MATERIAL, I’VE GIVEN UP MY CHANCE TO USE FAIR USE.

Everyone likes to avoid conflict and reduce uncertainty, and a maker may choose to seek permissions even in situations where they may not be required. Later, a maker still may decide to employ fair use. The fact that a license was requested--or even denied--doesn't undercut an otherwise valid fair use claim. If a rights holder denies a license unreasonably, this actually may strengthen the case for fair use.

I REALLY NEED A LAWYER TO MAKE THE CALL ON FAIR USE.

Fair use is a part of the law that belongs to everyone. A lawyer usually works for a client by reducing risk; in copyright law, that often means counseling purchase of rights for all uses of copyrighted material. If clients tell lawyers that they want to assert their rights (something that has a very low risk, if they understand what their rights are) then lawyers can recommend appropriate policies; but lawyers need to be told what their clients want.

And finally, a special note from the lawyers among us: Be careful not to draw too much from specific past court cases.

A good example of one decision that easily can be over-interpreted is the California District Court decision in L.A. Times v. Free Republic, 56 U.S.P.Q.2D (BNA) 1862 (C.D. Cal. 2000), which ruled that a right-wing electronic bulletin board that invited reader comments on mainstream media content was not fair use. This anomalous case predates a Supreme Court decision (Eldred v. Ashcroft, 537 U.S. 186, 2003) that clearly asserted the link between fair use and free speech. Furthermore, decisions like Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005), dealing with infringement standards in music sampling, are widely cited for fair use principles when in fact they do not concern fair use at all. While case law is of essential importance in establishing legal norms, it is the trend in case law that determines such norms. The trend in case law about fair use has strongly been in the direction of supporting transformativeness as a core measure of fair use. This puts the judgment about fair use back squarely in the hands of the new creators and platform providers, who must look carefully at how videos repurpose copyrighted works.