Do you have any general guidance on fair use of copyrighted materials for teaching, research or study for educational and scholarly users?
Answer
The Library provides an important function by supporting faculty and students in teaching, learning and research as well as protecting the institution from legal challenges. By providing faculty and students with information on copyright, the Library aims to assist in your fair-use evaluation of copyrighted materials utilized in your educational endeavors and to record this analysis which is critical to establishing reasonable and good-faith attempts to apply fair use. The principles below are designed to guide your reasoning and to help you guide the reasoning of others.
Fair Use
Fair use provides the right to make certain uses of copyrighted materials without seeking permission from, or paying fees to, the copyright owners of those materials.
The fair use doctrine is described in general terms in the law, so the distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined and requires individual analysis. Fair use is determined on a case-by-case basis by balancing a variety of issues, taking all the circumstances into account, examining how and why a new use repurposes or recontextualizes the work and whether an unlicensed use of the copyrighted material generates social or cultural benefits that are greater than the costs it imposes on the copyright holder. Because it is a tool to balance the rights of users with the rights of owners, educators and students need to apply reason to reach a decision. Ultimately, determining whether any use is likely to be considered fair requires a thoughtful evaluation of the facts, the law, and the norms of academic and research libraries.
Section 107 of the Copyright Act contains a list of the various favored purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four non-exclusive factors to be considered in determining whether or not a particular use is fair.
- The purpose and character of the use, including whether such use is of 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 copyrighted work as a whole
- The effect of the use upon the potential market for, or value of, the copyrighted work
Under the first factor, if the purpose of the use is for non-profit educational activity, it would tend to weigh in favor of the use being fair and non-infringing. However, not every educational and noncommercial use is non-infringing.
Under the second factor, generally, creative works are afforded greater protection than purely factual works.
The third factor takes into account whether more of the work was used than necessary to accomplish the specific purpose of the use.
In the educational context, the fourth factor protects the copyright owners’ financial interests in being able to create and sell works to educational institutions, educators, and students. If the work being used by an educator was specifically marketed for classroom use and the use would supplant purchases or licenses that otherwise would be likely to occur, it would tend to weigh against it being fair use and you may have to obtain formal permission for such use.
The four factors are not a checklist that must all weigh toward the user for courts to find fair use.
Through the history of fair-use litigation and the development of case law, judges analyzing fair use often consider these two questions:
- Did the user employ copyrighted works with a transformative purpose that differs from the original?
- Did the user employ only as much as necessary for that transformative purpose?
In analyzing the first question, case law suggests that a use is transformative when it repurposes copyrighted material and adds something significant to it by modifying material or putting material in a new context, or both. To determine whether a use is transformative, a court would consider the purpose of the original work and compare it to the purpose of the use by the scholar.
Determining whether the fair user has only used as much of the original copyrighted work as necessary varies case by case. The analysis focuses on how much of the original copyrighted work is needed to fulfill the transformative purpose of the fair user. You should be the best judge of whether you have used more than is necessary to make your point.
The answers to these two questions give a clearer picture of whether or not a particular use is a fair use. Answering yes to both of these questions is a strong indication that a particular use is fair—even if the work is used in its entirety. Despite longstanding myths, there are no cut-and-dried rules such as 10 percent of the work being quoted, or 400 words of text, or two bars of music, or 10 seconds of video that may safely be taken without permission. There is no limitation on the amount of a copyrighted work an author may use as long as the author has not taken more than he or she needs and the use is transformative.
To help you better understand how to determine the fairness of a use under the U.S. Copyright Act use the Fair Use Evaluator and collect the information you need to support a fair use evaluation.
Common Best Practices in Education
For any particular field of activity, lawyers and judges consider expectations and practice in assessing what is fair within that field.
In the course of teaching, using a germane excerpt from copyrighted material in course-related content available to enrolled students in order to illustrate a key idea is likely to be a fair use. Materials should be made available only when, and only to the extent that, there is a clear link between the instructor’s pedagogical purpose and the kind and amount of content involved. Only eligible students and other qualified persons (e.g., instructors’ graduate assistants) should have access to the materials. There should be reasonable protection against third-party access or downloads. The availability of materials should be coextensive with the duration of the course or other time-limited use (e.g., a research project) for which they have been made available at an instructor’s direction. Full attribution, in a form satisfactory to scholars in the field, should be provided for each work included or excerpted.
Close scrutiny should be applied to uses of content created and marketed primarily for use in courses (e.g., a textbook, workbook, or anthology designed for the course). Use of more than a brief excerpt from such works is unlikely to be transformative and therefore unlikely to be fair use.
In general, all library database materials can be made available through ArtCenter Canvas by linking to the appropriate database article. If the material you would like provide for a class is not available in one of our online resources, you can request the creation of a PDF for an ArtCenter Canvas course by submitting the item to be made into a PDF to the Digital Collections Lab in the Fogg Library, Hillside Campus, and completing a PDF Request Form.
Images
The scholarly or educational use of an image will often be different in purpose than that of its creator, which is frequently aesthetic in nature. An educator or scholar may display an image or series of images to convey a scholarly argument, or to convey information whether in face-to-face teaching, non-synchronous teaching activities, or non-course related academic lectures. Images used in the course of teaching or scholarship are typically accompanied by significant, additional commentary or critique, or are placed alongside other images or media, such that the purpose served by the image is to advance a scholar’s, instructor’s or student’s own argument in the context of an educational lecture or paper. This is very often a quite different purpose than that being made by the creator of the image. Educational users typically need to use the entire image (or an image of an entire work) to make their point, courts have repeatedly found that these factors are not determinative if the fair use analysis otherwise points towards a use being fair.
You can use the Digital Image Rights Computator (DIRC) to assist you in assessing the intellectual property status of a specific image documenting a work of art, a designed object, or a portion of the built environment.
To request images for inclusion in the ArtCenter Visual Resources in LUNA which can be used for teaching and scholarship, submit a completed Image Request Form to the Digital Collections Lab in the Fogg Library, Hillside Campus.
Videos
The practice of screening excerpts or entire works within the face-to-face teaching context is well established, requiring no permission or payment. A face-to-face teaching context involves educators being in the same general place as their students during the display and performance of copyrighted works. The space itself does not have to be an actual classroom and may include other places used for instruction, such as an auditorium or library. Educators using film and media for instructional purposes within the face-to-face teaching context require great latitude to display, perform, and reproduce copyrighted works. They routinely utilize still images, film and video clips, video games, audio segments, and other media for the purposes of analyzing and illustrating historical, theoretical, and critical ideas. In many cases, educators need to use complete works, either in class or during separate screening times.
Also, it is often necessary for educators to copy excerpts from films, television shows, and other media and include them in compilations or presentations for illustrative purposes. The ability to copy, excerpt and edit, capture stills, and manipulate images and sounds in this way enhances film and media educators’ ability to analyze, critique, and teach media. The community of film and media educators believes that such practices qualify as fair uses of copyrighted works.
In addition, students need latitude for using copyrighted media for classroom presentations or other course assignments so long as the excerpts are used in the service of coursework or study and are not circulated beyond the class.
Copyrighted media may also be made available to students for further study through library reserves. In addition, such works may be distributed online, provided that the requirements of the online distance education exception are satisfied or the use qualifies as a fair use under the Copyright Act.
A license may be required for classroom screenings that are advertised to persons who are not enrolled in the course or that require an admission charge beyond the regular tuition and fees for the course. A license may also be required for screenings aimed at entertainment rather than educational purposes. Many films and videos directed at an educational market may be rented with licenses that permit their screening or broadcast outside of the classroom. There are also a number of rights clearinghouses that may be contacted to secure licenses for such use. It is important to remember, however, that even when the audience for the screening extends beyond the classroom or admission is charged, educators’ screening of the material may still qualify as a fair use under the Copyright Act.
Ownership of a physical copy of a copyrighted work does not entitle the owner of the physical copy to use the copyrighted work as he or she pleases. A distinction should be recognized between the physical object and the copyrighted work. Fair use, however, can be employed whenever there is a legal copy available.
Converting VHS to Digital Formats
If the faculty member owns the copyright to the content on the VHS tape or has documentation with permission from the copyright owner for format migration and wants to convert it to DVD, they can engage a third-party digital transfer company to convert their VHS.
If the faculty member is NOT the copyright owner or does NOT have permission from copyright owner and there is a commercially available copy, funds are usually available for the purchase of institutionally-licensed versions of streaming video, DVDs, or Blu-Ray Discs. Faculty should contact their Research Librarian to request the purchase of a replacement video. The new media will be added to the library collection. The usual time required for a purchase is anywhere from a week to several weeks, depending on the distributor.
This document does not provide legal advice (which applies the law to specific facts and circumstances); rather, the aim of this document is to provide general guidance to educational and scholarly users of copyrighted material so that they can rely on fair use with greater certainty when employing these practices and principles.
Additional Resources
ArtCenter Library's LibGuide on Copyright & Fair Use
Visual Resources Association, Statement of the Fair Use of Images for Teaching, Research, and Study
College Art Association, Best Practices in Fair Use for the Visual Arts
The Code of Best Practices in Fair Use for Media Literacy Education
Digital Image Rights Computator (DIRC)
NYU Libraries Copyright Research Guide
