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Copyright: Fair Use

What is it?

"Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use." - U.S. Copyright Office

Educational Use

Fair Use Checklist

"Fair Use" varies from situation to situation.  There is no prescriptive answer as to what constitutes fair use.  There are four tenets to consider when applying the "Fair Use" clause of the U.S. Copyright Law:

  1. Purpose and character of the use.  Is the use educational?
  2. Nature of the work.  Is the work highly factual (for example, a recipe or definition) or creative (novel, textbook, film, poem, etc.) in nature?  The more creative a work is, the more likely this particular factor will weigh heavier in your analysis.
  3. Amount of the work used.  The guideline used by the library is 10% of the work, but in fact there is not an amount assigned in the written letter of the Copyright Law.  If a very small portion used consists of the "heart" of the work, this would weigh heavier in the analysis.
  4. Market effect of the use.  Will your copy affect the sale or market of the work? 

These tenets were not meant to be considered singly, but should be analyzed together.  The clause does not prescribe how much "weight" each factor is accorded.  Historically, the courts have placed the most value on the "market effect" of the use, while the "nature" clause has usually been considered as a lesser factor.

For help in determining a fair use evaluation, the ALA Fair Use Evaluator, developed by Michael Brewer is a good resource.

Educational Use Guidelines

Under the "fair use" provision of U.S. Copyright Law, a copy may be made of an author's work without asking permission.  The suggestions made below are based on fair use guidelines, but please be aware that courts are not bound by these guidelines and the Copyright Act does not contain these prescriptions.  These examples merely provide a "safe harbor" for use.  Be sure to use the Fair Use Evaluator to conduct your own fair use analysis.

Print Materials:

  • A single chapter from a book or 10% of the work, whichever is less.
  • A single article from a journal or newspaper.
  • A short story, essay or poem from an individual work
  • A single chart, diagram, graph, drawing, cartoon, or picture from a book, journal, magazine or newspaper.

Classroom distribution of copies:

  • Copies should not substitute for the purchase of books, journals, etc.
  • Always provide a copyright notice on the first page of the copied material.  At the very least, the notice should state:  "Notice: This material is subject to the copyright law of the United States."
  • Provide only one copy per student.
  • Copying the work for subsequent semesters requires permission from the publisher.

Using Material found on the Internet:

  • Always credit the source
  • If you are using information on your personal web page, ask permission or simply provide a link to the site.
  • If you receive permission to use the material, keep a copy.

Using Multimedia:

Multimedia works are created by combining copyrighted works such as movies, music, sounds, graphics and text.  It is recommended that only small portions of the works are used.

  • Movies: Up to 10% or three minutes, whichever is less.
  • Text: Up to 10% or 1,000 words, whichever is less.  (The limits on poetry are understandably more restrictive).
  • Music: Up to 10% of an individual copyrighted musical composition.  10% of a copyrighted musical composition on a sound recording.  However, no more than 30 seconds may be used without gaining permission from the copyright owner and/or publisher.
  • Photos and Illustrations: Based on the CONFU guidelines, "a photograph or illustration may be used in its entirety, but no more than five images by one artist or photographer may be incorporated into any one multimedia program.  From a published collective work, not more than 10% or 15 of the images, whichever is less, may be used.

Conference on Fair Use Guidelines for Multimedia

The Conference on Fair Use (CONFU) attempted to establish guidelines to clarify the application of fair use of copyrighted works in the digital educational environment. These guidelines were never formally adopted.

While only the court can authoritatively determine fair use, many educators use these guidelines as a starting place because the guidelines represent the CONFU participants' consensus of conditions under which fair use should generally apply. However, the guidelines have no force of law behind them.

CONFU guidelines allow you to use small portions of multimedia works without obtaining copyright permissions.          

         Following CONFU guidelines you may:

  • Use portions of copyrighted works when creating multimedia projects for educational or instructional purposes.
  • Students may use small portions of copyrighted materials for a class project.
  • Students may display their own projects, use them in e-portfolios, use them in a job interview, or as part of an admissions application for college.
  • Faculty may use projects for teaching, distance education, remote instruction, conference presentations, or activities related to teaching and professional development.
  • Attribute your original source (cite the source!) of all copyrighted material you use.
  • Place a copyright notice on the opening screen of multimedia projects and any accompanying printed materials that states:  "Certain materials in this multimedia presentation are included under the fair use exemption of the U.S. Copyright Law and are restricted from further use."
  • Fair use exemptions of the copyrighted materials expire at the end of two years.  To use multimedia projects after the two years, obtain appropriate copyright permission.

Tales from the Public Domain: Bound by Law?

A Fun look at Fair Use!  
Duke University has a Graphic Novel devoted to the topic.