Fair Use?

Posted by on Friday, July 18, 2008

Copyright symbol>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. 


And certainly, the general public propagates many myths about what can or cannot be used. For example, take a look at this seemingly harmless (and mercifully short) 29-second video posted on YouTube:



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:
  • 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?
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:
  1. The use of the copyrighted work is transformative.
  2. The kind and the amount of the copyrighted work used is appropriate for the assignment.
  3. The author of the copyrighted work is cited.



2 Comments

Kern Kelley said...

Hi Spiro,
An interesting (and fun) look at the copyright issue is this video A Fair(y) Use Tale:

http://www.youtube.com/watch?v=CJn_jC4FNDo

Spiro Bolos said...

Hiya Kern!

Thanks for the link! Last year I actually contacted Eric Faden about his amazing work because I was wondering how he avoided the issues raised by the DMCA (Digital Millennium Copyright Act). My worry was that he had to circumvent DVD encryption.

Here's his reply: "Now, in my own case, we developed "A Fair(y) Use Tale" very, VERY carefully knowing that we were directly challenging the most protective and litigious copyright owner on Earth. I was very fortunate to have a top-notch legal team advising me. While DMCA was never a major concern, we avoided its issues by capturing everything from ANALOG sources. DMCA largely protects only against DIGITAL copying so the issue of anti-circumvention became moot."

Amazing stuff for sure! Thanks again for sharing!

Disclaimer

Although this blog is authored by New Trier High School (NTHS) staff, the audience is global and the views expressed here do not necessarily represent those of NTHS as an institution.

Copyright and Fair Use

This site contains images and excerpts the use of which have not been pre-authorized. This material is made available for the purpose of analysis and critique, as well as to advance the understanding of technology in education. 
The ‘fair use’ of such material is provided for under U.S. Copyright Law. In accordance with U.S. Code Title 17, Section 107, material on this site (along with credit links and/or attributions to original sources) is viewable for educational and intellectual purposes. 
If you are interested in using any copyrighted material from this site for any reason that goes beyond ‘fair use,’ you must first obtain permission from the copyright owner.