Helping Students Make Sense of Fair Use
Helping Students Make Sense of Fair Use
By Sue Kunda
Disclaimer: This article is intended for informational purposes only and does not constitute legal advice.
U.S. Copyright Law grants a number of exclusive rights to copyright owners, but those rights have various limitations. One of those limitations, fair use, is both a blessing and a curse for educators. It’s a blessing because it gives us the right to use copyrighted materials without seeking permission from the copyright owner, but it can also be a curse due to misunderstandings and misinformation regarding fair use. Making matters worse is the circulation of various sets of classroom “guidelines” – on university and library websites – that have never been part of copyright legislation and are therefore, not legally binding. In fact, most classroom copyright guidelines are much too restrictive and, if followed to the letter, can erode and impair the educational mission of the University.
So if we’re confused about copyright, what about our students? How do we help them think critically about using copyrighted materials in their classroom assignments when we’re not even sure ourselves? This article will describe current fair use analysis and provide you with a framework to guide your students in making sound decisions about using copyrighted material in their work. I’ll use actual student work to provide an example of fair use in action, show you how to teach students to think through and document their reasoning process, and provide additional sources that I’ve found especially useful.
To fully understand and appreciate fair use, it’s important to start with the reason for copyright itself. Although Hollywood, the recording industry and other large entertainment organizations would have us believe otherwise, the purpose of copyright, as established by the U.S. Constitution is to:
“promote the Progress of Science and Useful Arts...”
The founding fathers believed giving authors and inventors a limited monopoly to their work would encourage them to share that work with the public, which would allow others to build upon it and further improve it.
The Copyright Act of 1976 provides a number of limits to a creator’s monopoly in order to meet the Constitution’s lofty goal. One of those limits, fair use, is codified in Section 107 of the Copyright Act, which states,
“the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”
As you can see, the fair use exemption targets the activities a typical university community engages in day in and day out – criticism, comment, teaching, research and scholarship. It’s important to note, however, fair use is not limited to the uses and activities outlined in Section 107. Those responsible for drafting the fair use provision purposely used “such as” and other ambiguous wording in order to give greater flexibility to the doctrine. Just as they couldn’t foresee the innovative practices digital technology would later afford (e.g., search engines, text-mining), we can’t pretend to know how future researchers and scholars will engage with cultural and scholarly materials. Unfortunately, this lack of clarity creates confusion and uncertainty, which can in turn stifle our teaching and our students’ learning.
Fair Use Analysis
Section 107, however, provides four factors to weigh when determining whether a use is fair or not. The four factors 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.
While courts weigh the four factors to resolve copyright disputes and educators refer to them when making decisions about using copyrighted material in the classroom, asking students to do the same is often impractical. We want them to understand the implications of making unauthorized uses of copyrighted materials. We want them to recognize their rights and responsibilities under fair use. But we want to provide them with a decision-making framework that is both legally sound and relatively uncomplicated.
Fortunately, modern fair use analysis does just that.
Recognizing the ambiguity in fair use court decisions, Pierre Leval, then a district judge on the Second Circuit, provided legal scholars with a more condensed view of the four factors. Looking at the first factor (purpose and character of the use), which he considered “the soul of fair use,” Leval determined that fair use decisions should be based on whether or not the use is transformative – does it add value, provide a different aesthetic sense or bring new meaning to the original or does it merely take the place of the first? The third factor (amount and substantiality of use), Leval opined, hinges directly on this idea of transformativeness – is the amount used in direct proportion to the purpose of the transformation? In other words, are you using only the amount you need to achieve your purpose?
Leval’s reasoning has since been incorporated into a number of court decisions, most notably, the 1994 Supreme Court copyright law case, Campbell v. Acuff-Rose Music, Inc., which used the transformativeness standard to determine the legality of 2 Live Crew using Roy Orbison’s “Oh, Pretty Woman” in their rap single, “Pretty Woman”. Legal scholars may feel transformativeness is as equally ambiguous as the four-factor test, but, in my opinion, at least for the educational setting, we have a much better chance to engage students using the former rather than the latter. Remembering Leval’s two questions about transformativeness and the amount taken is much easier to understand – and remember.
Students and Fair Use
When working with students, I like to walk them through an adapted version of Renee Hobbs’ “Document the Fair-Use Reasoning Process” worksheet. Ms. Hobbs is a tireless advocate for educators’ and students’ rights to use copyrighted materials in media literacy projects. She helped write the Code of Best Practices in Fair Use for Media Literacy Education, spearheaded the successful Copyright Office petition to allow K-12 educators to circumvent encrypted DVDs and online digital media for fair use purposes (the higher education community – including students – was granted rights in 2009) and maintains an extensive copyright education library on her website. You can find the fair use reasoning process worksheet there or in the appendix of her book, Copyright Clarity: How Fair Use Supports Digital Learning.
Shown below is an example of an OSU graduate student’s use of copyrighted material* in his 2012 thesis and his use of the fair use reasoning process.
|Original Image||Image with Student's Markup|
Pajak, Z. E. (2012). Picture this, imagine that: the literary and pedagogic force of ekphrastic principles (Master's thesis). 10 September. Retrieved December 13, 2012, from http://hdl.handle.net/1957/34331
*The age of this poster (1918) places it in the public domain and it can, therefore, be used for any purpose. I include it here merely for example.
1. What is the purpose of your project?
Answering this question sets the stage for making fair use determinations. Transformativeness rests, to a large extent, on using copyrighted works for a purpose different from the intent of the original.
I am using this copyrighted image in my graduate thesis.
2. Who is the target audience?
This question also helps set the stage. Repurposing a work for a completely different audience than the original helps make the case for Transformativeness.
The target audience for this thesis is K-12 and University instructors.
3. I am using (describe copyrighted material here) because (provide a reason here). This final stage-setting question requires the student to think critically about the purpose for using the copyrighted material and will, hopefully, ensure there’s a sound reason for doing so.
I am using an image of a World War I poster because the arrangement of text and image create an urgent and emotional experience and achieve a strong rhetorical purpose.
4. Does your use of the work “transform” the material taken from the copyrighted
work by using it for a different purpose than that of the original? Explain why your work does not just repeat the intent and value of the original source material.
Students should describe how they’ve added value or repurposed the copyrighted material. Criticizing, commenting, marking up, deconstructing, making a parody, placing in context, and remixing are just a few examples of transformations.
The original work was used to encourage community members to donate to the Bayside, New York Red Cross. I’m using the poster as a pedagogical tool for helping students understand visual literacy.
5. Did you use only the amount you needed to accomplish your purpose? Explain why you used the portion you did.
Students should review their use of a copyrighted work to make sure the amount used is proportional with the purpose of their use.
I needed to use the entire poster to illustrate how its visual composition provides a powerful, crisp example of effective visual rhetoric, but I’ve used a reduced version of the image.
If a student answers ‘yes’ to the questions about transformativeness and amount, the use is most likely fair. If the student answers ‘no’ to one or both questions, I encourage them to make changes (if appropriate) so their use comes closer to the fair use ideal or consider using a resource not under copyright protection (one in the public domain or with a Creative Commons license). Students are also free to request permission from the original creator if they discover their use is not fair.
When students create work that goes beyond the classroom walls (theses and dissertations, online media projects, etc.), I usually suggest they complete the “Document the Fair-Use Reasoning Process” worksheet and keep it with the final project. For most typical in-class assignments and projects, having students walk through the reasoning process may be sufficient.
There are several caveats to the above information:
- Assume almost everything created after 1923 is copyrighted (whether it has a copyright notice or not). This means almost all of the content on the Internet is copyrighted.
- Materials must be acquired through legal means – no illegal downloads or file sharing.
- License terms trump fair use. Use of materials acquired with accompanying licenses (e.g., ITunes, Netflix) is governed by terms of license, not copyright law.
- Cite everything. While copyright law doesn’t require a work to be cited, the scholarly method does.
Copyright clarity. (2010). Renee Hobbs. (Available in e-book format through OSU Libraries).
A very quick and easy read written for both K-12 and higher education communities.
Copyright law for librarians and educators: creative strategies and practical solutions. (2012). Kenneth D. Crews. (2012 edition available at COCC; earlier editions available at Valley Library)
A more thorough analysis of copyright and its place in educational settings.
Reclaiming fair use. (2011). Patricia Aufderheide & Peter Jaszi. (Available in e-book format through OSU Libraries)
An eye-opening depiction of today’s fair use environment.
Facilitated creation of “Best Practices in Fair Use” for creative and educational communities (media literacy education, academic and research libraries, communication scholars, use of images for teaching, research and study, film and media teachers, online video, etc.).
Arguably the website for copyright, fair use and education is written and maintained by Kenneth D. Crews, Office Director and law professor. The site contains everything you’ll ever need regarding copyright and fair use in an academic setting. Topics include general copyright information, conducting searches for copyright owners, requesting permissions, distance education issues, copyright duration, fair use case summaries and much, much more.
Renee Hobbs’ website provides an extensive library (in multiple formats) of copyright-related educational materials, including the Fair Use Reasoning Process worksheet.
The following videos are examples of transformative uses of copyrighted works that you and your students might enjoy:
Perhaps the most celebrated remix on the web, at least in part, because of its travails with Lionsgate Entertainment, owners of the Twilight Franchise.
An explanation of copyright and fair use using Disney clips. The quality’s not the best and it’s difficult to hear at times, but the creator definitely makes his point.
Sue Kunda is the Digital Scholarship Librarian for OSU Libraries and recently received a certificate in Copyright Leadership and Management from the Center for Intellectual Property at the University of Maryland University College. She works with students and faculty on issues of copyright, author rights and Open Access.
 Stanford University Libraries. (n.d.). Primary materials. In Copyright & Fair Use. Retrieved February 15, 2013, from http://fairuse.stanford.edu/primary_materials/#usconstitution
 Leval, P. N. (1990, March). Toward a fair use standard. Harvard Law Review. Retrieved February 15, 2013, from http://docs.law.gwu.edu/facweb/claw/levalfrustd.htm.
 Cornell Law School. (n.d.). Campbell v. Acuff-Rose Music (92-1292), 510 U.S. 569 (1994). . In Legal Information Institute. Retrieved February 15, 2013, from http://www.law.cornell.edu/supct/html/92-1292.ZS.html
 Hobbs, R. (n.d.). Document the fair-use reasoning process. In Media Education Lab. Retrieved February 15, 2013, from http://mediaeducationlab.com/document-fair-use-reasoning-process
 Hobbs, R. (n.d.). Code of best practices in fair use for media literacy education. In Media Education Lab. Retrieved February 15, 2013, from http://mediaeducationlab.com/code-best-practices-fair-use-media-literacy-education-0
 U.S. Copyright Office. (n.d.). Section 1201 exemptions to prohibition against circumvention of technological measures protecting copyrighted works. In Copyright. Retrieved February 15, 2013, from http://www.copyright.gov/1201/
 Pajak, Z. E. (2012). Picture this, imagine that : the literary and pedagogic force of ekphrastic principles (Master's thesis). 10 September. Retrieved December 13, 2012, from http://hdl.handle.net/1957/34331