Fair use is the flexible and dynamic exception to copyright law that serves to balance the rights of creators with the public interest in using copyrighted works to advance education, to comment and criticize, and to make new creative content. Its flexibility is often somewhat intimidating because when considering fair use it is very rare to know with certainty that a use is fair, only that it is more or less likely to be fair. It can be frustrating that the law does not give us any clear answers regarding amounts we can use and know that we are "safe." Fortunately, there are ways of understanding the purpose and function of fair use that can help us feel more confident about evaluations and maybe even come to love fair use for its flexibility.
Image: Portions of Fair Use Fundamentals infographic: Association of Research Libraries CC-BY.
Image: Portions of Fair Use Fundamentals infographic: Association of Research Libraries CC-BY.
Fair use is determined by considering four factors of that use. No one factor is determinative; each factor must be considered and weighed. Usually after considering each of the four factors and weighing how much each fact of your particular situation favors or disfavors fair use, you are left with an overall sense that your use is "probably fair" or "probably not fair." Really, only the courts can offer us definitive answers.
How do you propose to use the work? Purposes that favor fair use include education, scholarship, research, news reporting, criticism, and commentary. Non-profit purposes also favor fair use. Commercial uses weigh against fair use.
The biggest error we see educators making is mistaking their educational context for an educational purpose. If you create a class website or presentation and put a picture on it primarily for decoration, it is less likely to be considered fair use than if you use an image to help instruct.
Remembering copyright is designed to protect works of creative expression, the more highly creative the work you want to use is, the more fair use is weighed against. This is, of course, subjective. We might say, in general, a novel would be more highly creative than a work of non-fiction but, of course, there is a huge range of creativity within the category of "non-fiction." Another way to think about it is if the work is factual. Facts cannot be copyrighted, so the more factual a work is, the more likely it would qualify for fair use. Unpublished works would also be less likely to qualify for a fair use than published works.
This is the one where everyone seems to want to see some percentage or number of pages that will always be fair. There is no such number. The goal of fair use is to make available a wide and unpredictable set uses. Could a legislator predict in advance that a future satirist would never need more than ten percent of a work in order to make their point? Of course not.
As a general principle: using less of a work is always more likely to be fair than more. The smaller the portion used is relative to the whole, the more likely the use is to be fair.
It is also true, however, that using an entire work can be and often is a fair use. Another guiding principle: using only the portion of a work that is necessary to meet the educational (or other fair) purpose you have in mind is more likely to be fair than using more than is necessary. For example, if you are considering copying a 4-page article for your class because the author makes an argument you'd like to discuss but that argument could be well understood by reading just a couple of paragraphs of the article, copying just those paragraphs would much more strongly favor fair use than copying the whole article.
The larger the portion you want to use represents the "heart of the work," the less likely your use is to be fair. This can be difficult to assess, but keeping in mind “less is more” can help.
The most useful way to think about this factor is to ask if your use could substitute for the original in the marketplace. Would your use substitute for sales either to students or anyone else? A confusing piece here is the permissions market. A strong market exists in selling permissions to use content, especially things like book chapters and journal articles. So it can be easy to say "Oh, of course my student won't be subscribing to Journal X so copying an article doesn't substitute in the market." But it would substitute for that secondary permissions market. We don't have conclusive case law to guide us in thinking about the permissions market, but it does seem very likely that where there is a viable permissions market for the material you want to use, this would weigh against fair use. This does not necessarily negate fair use, but only establishes that the courts have not decided this issue.
A Balancing Test
Once you have looked at all of the factors, you can assess if taken as a whole your use seems likely to be fair or unfair. No single factor is determinative and you could "strike out" in three categories but have the remaining category weigh so strongly in favor of fair use that, overall, your use is fair.
Remember that using a checklist will never let you determine with certainty whether a use is fair. It can, however, help you organize and document your thinking. We recommend that you use and print a fair use checklist whenever you're dealing with a tricky fair use situation. Take the time to document your thinking in case of a future challenge!
"I'm sure I read somewhere that 10% of a work is always fair!"
"Isn't it okay if I use something for one term but then I have to get permission the next term?"
We know from looking at the four factors of fair use that no specific amounts are dictated and there's nothing in there about 'spontaneity' or 'cumulative effect' (all that "one term free" business). So why do so many of us remember hearing these things somewhere along the line? These concepts come out of the Classroom Guidelines. These are a set of negotiated guidelines agreed to by the Association of American Publishers and The Author's League of America following the passage of the 1976 copyright law (which first codified fair use). The Guidelines are an agreement between private parties intended to provide a kind of "safe harbor." That is, the publishers were essentially saying that the guidelines represent, in their opinion, an interpretation of the minimum standards of fair use that they could live with and if educators operated within that "safe harbor" they would not be liable for infringement. The guidelines specifically state that they are meant "to state the minimum and not the maximum standards of fair use under section 107." Despite this, many groups including the American Association of University Professors (AAUP) objected to the Guidelines as they feared they would come to be seen as, in essence, a ceiling rather than a floor. This fear has proven to be well-founded with many institutions enshrining the Guidelines as policy. Certainly the Guidelines are widely conflated with the actual law.
The Guidelines can be helpful, especially when regarded as the "floor" they were intended to be. Remember that there is no real guarantee that the Guidelines do actually represent a "safe harbor" as they do not carry the force of law. But, more importantly, remember that the very nature of fair use is that it does not anticipate all future potential uses and describe in advance if those uses are fair.
"Why don't the laws that apply in the physical classroom apply in the online classroom?" It's hard to answer that question without editorializing about the legislative history of the TEACH Act but the short answer is that, as distance education began to become commonplace, there was an effort to update the Classroom Use Exemption (17 U.S.C. § 110(1)) that we as educators have always relied on to give us broad latitude to display and perform copyrighted materials in our classroom to apply to the distance education classroom. There was fear on the part of content owners that digital copies of their works in online classrooms would lead to wide scale piracy. Thus, the TEACH Act was born. TEACH is nice, when it works, because it does give us the clarity to know that our use is legal. But it definitely imposes greater restrictions on the online instructor than are felt by the face-to-face instructor.
Keep in mind, the only part of the law that really differs for the distance classroom vs the face-to-face classroom is the Classroom Use Exemption. Online instructors still benefit from fair use and, in many cases, we can make fair uses of materials that would not meet the extensive requirements of the TEACH Act.
TEACH has a list of criteria that must be true to make use of its protections. Many you can assume to automatically be true for classes you are teaching. These include:
The following are the criteria that you'll need to actively evaluate if you want to make use of TEACH:
If your use and material meet all of the criteria above, congratulations! Your use is protected by TEACH. TEACH is great when it applies because it gives you the peace of mind that comes with knowing that you're not making an infringing use. If your use does not meet all of the above criteria, don't despair! Your use might still be a fair use. Fair use doesn't always offer us the same peace of mind but it makes up for it by being a flexible and dynamic doctrine designed to support a wide variety of beneficial uses of copyrighted material.
Search your library’s collection to see if it has an electronic version of the article. If so, use a permanent link to the article (e.g., in your Blackboard course). Or, if the article is available legally on the web, link to the article. If you can’t link to it through your library or on the open web, you'll need to conduct a fair use analysis before scanning or copying the article for your class.
If you own a print copy of the book, place it on reserve at your library. Or, search your library’s collection to see if it has the ebook. If so, put a permanent link to the ebook in your readings list. If not, you'll need to conduct a fair use analysis before scanning or copying the chapter for your class.
Linking to a YouTube video is permitted. If embedding code is provided, it is fine to embed. Be sure to attribute the creator. Avoid any video that you suspect is not a legal copy.
In the case of face to face classes, the Classroom exception permits you to show DVDs without limitation, provided that the DVD is legally made and acquired. Streaming a DVD in an online class will need to be permitted by the TEACH Act or be a fair use. The TEACH Act specifically forbids copying an entire DVD. Fair use could permit it but a rigorous analysis and justification would need to be provided. Portions necessary to serve your pedagogical purpose may be streamed to students. You will need to think through your purposes for including the content from the DVD and limit your use to only the necessary portions. The TEACH Act specifically allows "The performance of a nondramatic literary or musical work or reasonable and limited portions of any other work.” The DVD must be a legal copy and the content cannot be mediated educational programming as long as “The performance or display is made by, at the direction of, or under the actual supervision of an instructor as an integral part of a class session offered as a regular part of the systematic mediated instructional activities.”
Yes! Your library has licensed content you can embed in your classes. Contact your library to learn more about the streaming content that it provides.
Showing legally acquired images in the classroom is permitted. If you post a slide deck to a learning management system, consider removing any copyrighted material unless you have done a fair use analysis. Consider using your library’s licensed content, Creative Commons-licensed content, or materials in the public domain. Otherwise, you'll need to conduct a fair use analysis.
Permissible to use, with attribution. If the chart or graph is creative in its display of information (as opposed to something that anyone could reproduce exactly given the same data), conduct a fair use analysis.
CDs are okay to use in the classroom. For online settings, see the "DVDs" tab.
If the performance is in-person, use is permitted by the classroom exemption. If the performance is streamed, you may need to conduct a fair use analysis.
It is better to send a link than to send an attachment. Much of the details listed above for posting things online will be similar with email but posting online on a learning management system will make any fair use argument stronger.
Get permission from the student in writing and keep that documentation. Be very specific in your request to the student about how you will use their work and adhere to those specifications. Both copyright and FERPA apply.
“Open CSCU” by the Connecticut State Colleges & Universities is licensed under a CC BY 4.0 International License. The individual items included are subject to their respective license provisions. This Copyright Guide is a derivative of Copyright Resources by Portland Community College Library (PCC) and a derivation of the PCC work, Copyright Resources by Naugatuck Valley Community College. The original work, "Copyright Resources," is licensed by PCC under a Creative Commons Attribution 4.0 International License. Nothing in this Copyright Guide should be construed as legal advice.