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Copyright: Fair Use

Copyright Compliance Officer

Elizabeth Fox's picture
Elizabeth Fox
Contact:
Briggs Library, Box 2115
South Dakota State University
Brookings, SD 57007-1098
Room 019 (lower level, north side of the room labeled Government Documents)
605-688-5569
Skype Contact

Notice - Information on Copyright Does Not Constitute Legal Advice

Note that the author of this guide is not an attorney and is providing information on copyright only. Nothing on this site should be taken as legal advice. For legal advice, please see an attorney.

What is Fair Use?

Fair Use is defined in Section 107 of the Copyright Law (Title 17, U.S.C.). It lists situations in which the rights given to authors may be used by others. These are exceptions to those rights, not a transference of rights. Section 107 lists four factors of a test for the courts to use to determine if a particular use if "fair use." Although some decisions have weighed one factor over the others, none are defined as more important in the law itself.

Factor 1: Purpose and Character of the Use

This factor looks at what is being used and why it is being used. There are specific uses listed in the law as fair uses including "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research" (Copyright Act, 1978). This factor favors uses at non-profit educational institutions as well. For faculty and students at SDSU, this factor will usually play in your favor if you are using material for a class here.

Factor 2: Nature of the Work

This factor looks at the work itself. Facts cannot be copyrighted and so facts and factual works are more easily used than artistic works. Also, published works are more easily used than unpublished works.

Factor 3: Quantity of the Work to be Used

This factor looks at the amount of the work used in relation to the work as a whole. There is no hard and fast guideline as to the amount of a work you can use, the law only says a small amount that is not the heart of the work. In the case called Cambridge University Press (CUP); Oxford University Press (OUP); Sage Publications v. Georgia State University (GSU), the court decided that 10% of a book of fewer than 10 chapters or 1 chapter of a work of 10 or more chapters is fair use. Journal/magazine/newspaper articles are typically considered a work in and of themselves so mostly, by using a journal article, you are using an entire work.

The heart of the work needs a little explanation. The heart of the work is the part of the work that is it's raison d'etre. An example is found in the court case Harper & Row v. Nation Enterprises. In this case, the magazine The Nation published an exceprt from President Gerald Ford's biography. The experpt was less than 10% of the entire work but it included the explanation of Ford's pardon of Nixon. The court found that by reading the exceprt published in The Nation, the reader had already read the "heart of the work" and thus the use was not fair use. Leave your readers wanting more is the lesson here.

Here is a clever video using short amounts of a lot of musical works to give the history of music in 4 minutes (by Pentatonix)

Factor 4: Effect of the Use on Any Potential Market for the Work

This factor looks at what the use does to any potential market for the original work. Note that in using materials for a course, you may actually be creating a market for the work. This is definitely the commercial factor but in most cases it does not outweigh the other 3. A frequent statement goes something like "I'm not making any money from it so it is OK to use." This is not the case - whether or not you make money from a use is not the point in the law. If the copyright owner COULD make money from it is the point.

References

Copyright Act § 107, 17 U.S.C. (1978).

Fair Use Guidelines - How Do I Determine if My Use is Fair Use?

There are many checklists for fair use out there on the internet. A few are linked below with some being more detailed and others less. Choose one you like and use it to determine whether your use is fair use or not. Note that if you are ever sued, showing that you performed a fair use analysis before using the work can be beneficial in court. Of course, it is also beneficial not to end up in court in the first place.

Thinking Through Fair Use Guide

Columbia University Fair Use Checklist

Cornell University Fair Use Checklist

The following website has a good analysis of some past copyright cases that have won or lost based on fair use. They summarize the findings on each of the factors of fair use.

Columbia University Libraries/Information Services, Copyright Advisory Office. Case Summaries

References

Copyright Act § 107, 17 U.S.C. (1978).

What about using ... in my class?

What about using a video in my face-to-face class?

As long as you don't actually copy the video and you can relate the video to an educational objective, go for it! The key for a face-to-face class is that the video must meet an educational objective and the classroom must be limited to enrolled members of the class (and, of course, instructors).

What about using a video in my online class?

Here the answer is much more complicated. Now we have to add the Digital Millenium Copyright Act into the mix. This act does not allow anyone to overcome any technological protections on a recording even if it is easy to do so. This generally applies more to DVDs than to VCR tapes. The only time I will ever say, you should get things on VHS is when it comes to fair uses of videos in online classes. You can generally make a copy of a short portion of a work on VHS for use in an online course. DVDs are rarely useable in online classes. To make this even more complicated, if you teach media studies or film classes, there is actually a code of best practices that has been agreed upon by various parties that allows you to make copies. See the page on Codes of Best Practices for the code.

What about using a short poem in my class?

Generally use of one poem is considered fair use. That being said, a book length poem probably does not count.

What about using an article in my class?

Generally use of one article for a class is considered fair use. However, remember that an article is an entire work by itself. The key with articles is that you use them only as supplemental reading, don't use so many that you create an anthology.

What about using 4 chapters of a book in my class?

This would be too much unless the chapters are really short. The Georgia State decision makes using even 4 very short chapters questionable. If the total amount used is a small portion of the work as a whole, this is generally OK (at least prior to Georgia State).

What about using a picture of the Mona Lisa in my class?

The Mona Lisa was painted in the 1500s so it is no longer covered by copyright. As long as the picture you use of it isn't a new work of art in itself, you can go ahead and use it. On the other hand, if you find a picture of the Mona Lisa where someone cleverly updated the clothing and made it look modern, that would actually be a new work of art and is probably copyrighted itself.

What about using a photo from the internet in my PowerPoint presentation?

Photos from the internet are often copyrighted. The best solution if you want a picture is to look for one that is copyright free or has a creative commons license. See the images page under the Types of Information tab for more information on finding such pictures. That being said, if the PowerPoint is only on D2L and you cite the photo, you can probably use the photo under fair use. One thing that is rather noticable in education is that faculty require their students to cite their sources but photos and other images in their PowerPoint presentations are rarely cited. Be a good example to your students and cite where you get your images (and anything else you copy from someone else).

Fair Use Index

The Copyright Office has an index of fair use cases heard by any court in the U.S. with their decision.

Fair Use Index

To Whom Does Fair Use Apply?

Fair use applies to anyone for any use based on the four factors test.

As students, staff, and faculty at SDSU, many uses of copyrighted materials will be allowed but be sure to analyse each use!

Information on Fair Use

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