Fair Use GuidelinesA Guide for Teachers and Students

©By Steve Summers

Perkins County High Schoolsteve_summers@pcs.esu16.org

Source: Fishman, S. 2008. The copyright handbook: What every writer needs to know. 10th ed. Berkeley, CA; Nolo.

What is Fair Use?Fair use is a limitation on the exclusive rights of a copyright holder.

Fair use is legally defined by Section 107 of the Copyright Act of 1976:

“fair use of a copyrighted work, including such use by reproduction in copies or phono records 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.”

What is Fair Use?Section 107 of the Copyright Act of 1976 established four criteria for determining whether the use of copyrighted work is fair use:

the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

the nature of the copyrighted work;

the amount and substantiality of the portion used in relation to the copy-righted work as a whole; and

the effect of the use upon the potential market for or value of the copy-righted work.

What does it mean for us?

Everything we do is “for nonprofit educational purposes” so every thing we do is fair use, right?

Wrong.

“purpose and character of the use”

Just because it is used in a classroom is no guarantee that its purpose is educational.

Showing a movie as a reward for good work, or good behavior, or just to fill up the last few minutes of the period, is not educational.

Be sure that any use of copyrighted material is for instructional purposes.

So its educational, is that enough?

No.

We still have to meet the other criteria.

like. . .

“nature of the copyrighted work”

This is a big one.

There are as many different rules as there are types of copyrighted works.

How many types are there?

Think about the number of types in just these categories: text, pictures, video, audio.

Then think about the “nature” of the different types.

Is it scholarly or artistic?

Is it published or unpublished?

So where do we find this huge list of rules?

There isn’t one.

The Copyright act of 1975 contains a very long list of very general guidelines that are all subject to interpretation by the courts.

If a judge has to decide if your use is fair use, it is because you have been sued.

Try not to get in that situation.

Guideline #1

Get permission.

Before using a copyright protected work.

Especially if you are not sure what you have planned falls under the other guidelines for fair use.

“amount and substantiality of the portion used in relation to the copy-righted work as

a whole”

Can we use the whole thing?

Almost never.

How much should I use?

Generally, the smallest portion possible.

The smaller the portion used, the more likely your use, if challenged, will be ruled fair use.

“amount and substantiality of the portion used in relation to the copy-righted work as

a whole”(Guidelines for printed Materials)

Teachers may, under the fair use guidelines, use in a multimedia presentation or make multiple copies of:

Up to 10% or 1000 words, whichever is less of most text works.

An entire poem of less than 250 words, but no more than three poems by one poet, or five poems by different poets from any anthology.

Up to 250 words of a longer poem, but no more than three excerpts by a poet, or five excerpts by different poets from a single anthology.

“amount and substantiality of the portion used in relation to the copy-righted work as

a whole”(Guidelines for printed Materials)

Teachers may, under the fair use guidelines, use in a multimedia presentation or make multiple copies of:

an article, story, or essay of less than 2,500 words

one chart, picture, diagram, graph, cartoon, or picture from a book or periodical

up to two pages from an illustrated work

You may NOT copy “consumables”

“amount and substantiality of the portion used in relation to the copy-righted work as

a whole”(Guidelines for printed Materials)

Remember:

usage must be “at the instance and inspiration of a single teacher” and when time does not allow for acquiring permission

no more than one copy per student

copies MUST be made only from legally obtained originals

“amount and substantiality of the portion used in relation to the copy-righted work as

a whole”(Guidelines for Audio & Video Materials)

Teachers may, under the fair use guidelines, use:

Up to 10% or 3 minutes, whichever is less, of a motion media work

Up to 10% or 30 seconds, whichever is less, of the music and lyrics from an individual musical work.

But, any alterations to a musical work shall not change the basic melody or the fundamental character of the work.

“effect of the use upon the potential market for or value of the copy-righted

work”

Make sure that your educational use of a copyrighted work in no way lessons or destroys potential commercial value for the work.

And Finally

Whenever possible, follow Guideline #1

Get Permission!