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Copyright & Fair Use

Your guide to understanding copyright and fair use

Disclaimer

The following guidelines have no force of law. We believe that everyone should familiarize themselves with the law, and this guide is intended to help you do so, but do not take our word as law. We’re not lawyers, we’re librarians.

What is fair use?

Despite the fact that the right to copy, derive, distribute, display, perform or transmit a copyrighted work lies exclusively with the rights holder, the very next section of the Copyright Act defines certain situations where it is legal for anyone to do these things without even asking permission. This is known as “fair use.”

 

The Act specifically states that using copyrighted material “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” It goes on to outline how a judge would determine if use of copyrighted material was fair. The factors to consider are:

 

  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 U.S.C. § 107).

 

The good news is that nonprofit education is a highly favored factor in fair use determination. The bad news is that we cannot offer any hard-and-fast rules as to what constitutes fair use. Not even the US Copyright Office can do that. As they write:

 

Courts evaluate fair use claims on a case-by-case basis, and the outcome of any given case depends on a fact-specific inquiry. This means that there is no formula to ensure that a predetermined percentage or amount of a work—or specific number of words, lines, pages, copies—may be used without permission.

 

Please note that the Copyright Office is unable to provide specific legal advice to individual members of the public about questions of fair use.

 

Only a judge can legally evaluate a fair use claim, and most people don’t want to get sued just to find out what fair use means, so it’s everyone’s responsibility to consider all four factors above when they use copyrighted material. For example, reprinting a colleague’s unpublished work, even for the permissible purpose of criticism, would likely not be fair use due to factors two and four. Making multiple copies for teaching is specifically allowed, but making multiple copies of a custom textbook or coursepack would likely not be considered fair use, as it would have a negative effect on the market for that work.

Recent case law has added a fifth factor to fair use determination that sometimes outweighs the others. In Campbell, aka Skyywalker, et al. v. Acuff-Rose Music (92-1292), 510 U.S. 569 (1994), the Supreme Court, recognizing that copyright’s intent is the promotion of progress, ruled that “transformative” uses of copyrighted material are also fair use. Campbell’s group, 2 Live Crew, requested a license to use Roy Orbison’s song “Oh, Pretty Woman” in their parody, “Pretty Woman.” Acuff-Rose Music, the rights holder, refused, but 2 Live Crew released the song anyway. The company sued for copyright infringement and lost, but they won on appeal.

 

In deciding to hear Campbell’s subsequent appeal, the Supreme Court noted the inherent tension between copyright protection and creative uses of copyrighted works. Justice Souter wrote the unanimous opinion, which traced this tension all the way back to British common law. Souter quoted Lord Ellenborough, who wrote that “while I shall think myself bound to secure every man in the enjoyment of his copy right, one must not put manacles upon science.”

 

The Court reversed the appeal, remanded the case, and it was settled out of court. The first and third factors of fair use determination weighed most heavily in Campbell’s favor. In their directions to the lower court, the Supreme Court wrote of the first factor that “Parody, like other comment and criticism, may claim fair use.” They continue:

 

The enquiry focuses on whether the new work merely supersedes the objects of the original creation, or whether and to what extent it is "transformative," altering the original with new expression, meaning, or message. The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use. The heart of any parodist's claim to quote from existing material is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's work. But that tells courts little about where to draw the line. Thus, like other uses, parody has to work its way through the relevant factors.

 

The Appeals Court, following precedent, had ruled that 2 Live Crew had copied the “heart” of the work and thus their parody was not fair use on the basis of the third factor. The Supreme Court disagreed with this interpretation of “the amount and substantiality of the portion used,” writing:

 

Even if 2 Live Crew's copying of the original's first line of lyrics and characteristic opening bass riff may be said to go to the original's "heart," that heart is what most readily conjures up the song for parody, and it is the heart at which parody takes aim.

 

With this ruling, the Supreme Court changed the interpretation of fair use in a very substantial way. Now, derivative works can be deemed to be transformative, and thus fair uses, if they use a source in new and unexpected ways, and this factor alone can qualify that use as fair, even if all four other factors of fair use determination would have weighed against it. This is what allows for television shows to use clips from other shows for satire and for other transformative uses including the creation of remixes and mashups, livestreaming, making works accessible to those with disabilities and making copies as part of a new technology, such as Google Images’ use of thumbnail images for searching.

How can I use copyrighted material for instruction?

 

Section 110 of the Copyright Act deals with instruction. It provides wide latitude for the use of copyrighted materials in on-campus instruction, and it was amended by the TEACH Act (Pub. L. No. 107–273 § 13301) in 2002 to make the rules for distance learning more congruous with face-to-face instruction.

 

It is fair use for students and educators at nonprofit educational institutions to perform or display lawfully acquired copies in person on campus. It is also fair use to do so online with entire “nondramatic literary or musical” works and “reasonable and limited portions” of other works. There are a few caveats for online learning. The work must not be “produced or marketed primarily for performance or display as part of mediated instructional activities transmitted via digital networks,” it must be “an integral part of a class session,” and the audience must be limited to officially enrolled students.

 

It’s the school’s responsibility to institute copyright policies, provide accurate information regarding copyright to students, faculty and staff, to provide “notice to students that materials used in connection with the course may be subject to copyright protection” and to ensure that technological measures are in place to prevent download or sharing of the copyrighted content.