>Image via WikipediaOne of the trickiest issues for teachers is determining what constitutes "fair use" when utilizing copyrighted material, for ourselves or for our students. In the past, many well-intentioned educators published "fair use guides" on the web that were overly cautious or just plain wrong, focusing on, for example, the amount or percentage of time supposedly allowed when excerpting a clip.
You might have missed it, but Prince's classic song, "Let's Go Crazy" was playing in the background. According to Wired magazine, this video "was removed last year after Universal [record company] sent YouTube a takedown notice under the Digital Millennium Copyright Act."
But you might have also missed the fact that, "after being taken down for six weeks, the video went back online last year, having now generated about half a million hits." (emphasis added)
Fortunately for budding video directors (like our students) and us, the courts are more recently and more often siding with the creators of such videos, according to the Center for Social Media of American University: "In reviewing the history of fair use litigation, we find that judges return again and again to two key questions:
According to Peter Jaszi of American University, "Fair use is like a muscle that needs to be exercised, but people can't exercise it in a climate of fear and uncertainty." I'm no lawyer, but it seems to me that if we and our students follow a set of "best practices", not unlike what we already do with written work, we are unlikely to be challenged on legal grounds. Based on the 2 legal questions above and our own previous experience with quoting and paraphrasing, our best practices should then be easy to articulate:
- Did the unlicensed use 'transform' the material taken from the copyrighted work by using it for a different purpose than that of the original, or did it just repeat the work for the same intent and value as the original?
- Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?
- The use of the copyrighted work is transformative.
- The kind and the amount of the copyrighted work used is appropriate for the assignment.
- The author of the copyrighted work is cited.