Fair Use

Fair Use

Fair Use is part of U.S. Copyright Law. It allows for the unlicensed use of copyrighted material for certain purposes and with certain limitations. Using portions of copyrighted work for non-profit educational purposes is generally acceptable, but this does not mean teachers and students can use any copyrighted material they want in any manner that they want.

Four Factors

Fair Use does not give you the right to use anything you want in any way you want. Before using any protected material without a license or the creator's permission, you need to consider the following Fair Use conditions.

  1. Transformative uses of copyrighted materials are more acceptable under Fair Use. This means that the work is used along with new material that adds an additional purpose rather than to simply replace another resource.

  2. Using works that are factual rather than creative in nature (movies, songs, novels) are more acceptable under Fair Use.

  3. The amount of the original work used and whether or not the portion used was substantial is also a factor. Either one or both of these conditions could apply to any given use. Fair Use does not allow you to use a large percentage of the copyrighted material, see the Portion section below. Nor is it considered Fair Use when only a small portion is used, but this particular portion captures the substantial basis of the work.

  4. The effect the use on the potential market value of the work is also considered.

How and Where

After considering whether or not your use complies with these four conditions, make sure that how and where you use the work is also acceptable under the Fair Use law.

  1. What's my purpose? If you intend to use the the content for school work (teacher or student), research, news reporting, commenting or criticism, you are probably okay. On the other hand, if you want to use an image or other content to decorate your blog or social media site, you would be safer getting permission, buying a stock image, or finding an image that is in the public domain. This is especially true if you use your site to generate any income.

  2. Where can people see the material I am using? If the only place that people are going to see the copyrighted material is in the classroom, even a restricted-access school website, then you are okay. But if you publish the material to a website that can be viewed by the public or perform or show the work in person to a public audience, you can run foul of the Fair Use law and possibly be sued. Again, the risk of being sued is greater if the public venue, online or in person, earns you or anyone else money.

Using Images from Websites

Images are everywhere on the web. With just a couple clicks you can download and reuse them. But before you do, you should revisit the four conditions of Fair Use to be sure that how you intend to use the image is in line with the law. Ask yourself these questions:

  1. Are you going to use the image in a transformative work? If the way in which you use the image in your work no longer resembles the way it is originally presented, you are in safer territory.

  2. Are you using a thumbnail linked to the original or just a portion of the image? If so, your Fair Use argument may prevail if you are challenged.

  3. Are you willing to take the risk of being sued? Using images on a public website, as opposed to on a presentation or paper you turn in to your teacher or show in the classroom, could get you into hot water.

  4. Is the image owned by a stock photo services company such as Getty Images or Shutterstock? If so, never use these images without paying for them. These companies are in the business of selling images and they do not want you using their 'products' for free. In addition to the watermarks they usually 'scar' their pictures with before purchase, they usually include a hidden attribute in the file so that they can find it on the web even if you change the image and the name of the file. They then use web services that locate the unlicensed images and file suits against the user. To prevent having to go to court you may be given the option of paying them hundreds or thousands of dollars.

  5. Is the image protected by a Creative Commons license that prevents reuse? If so, use the image only as the creator intends. Go to the Creative Commons website to find out what each symbol means.

Portion Size

As mentioned in the four factors for determining Fair Use, portion size matters. The following are the recommended limits:

Do not attempt to get around these restrictions by creating a series of presentations or by dividing the final product in to portions in order to use more than the allowed amount.

* Be very careful not to use more than the Fair Use allowed amounts when posting/performing the copyrighted material publicly, either on the web or in person, without the copyright holder's permission. This includes reading books or singing songs on websites that are open to the public. You may think that this is okay because you see people doing this on YouTube or elsewhere all the time. But technically it is not okay, especially if the YouTube site includes advertising that earns the person money. Many times copyright holders do not bother to file suits for these types of copyright infringement, especially if the post actually helps their sales; but that doesn't mean they can not file a suit if they choose to do so.

Using Web Content

Linking to material on other websites is generally allowed since you are not publishing the copyrighted material to the web yourself. Be careful not to imply that the linked material is yours.

Deep Linking is not recommended. Deep Linking is when you post to a sub-page of another site, by-passing the author's home page. Always include both the site's main page and the page where the exact material is found. This way you are not skirting any ads or other information that the author included on his/her homepage that he/she wants viewers to see.

Framing another's site within your site can leave readers with the impression that the framed site is yours. This is not acceptable under Fair Use.

Inlining content is also not advisable. Inlining is similar to framing. It refers to when you display a picture on your site, but the picture is actually being displayed from its original location. When this is done such that it looks like the image is yours, or done as a way of avoiding getting permission to use the image, your use might not hold up under Fair Use, if challenged.

Asking permission

Asking the permission of the copyright holder is easier than ever to do. In fact, bloggers, authors, and artists who publish their work to the web often love to hear from teachers and students as to how their work is being used educationally. Look for a contact link on the website and send a request. You may be surprised how quickly you hear back.

Attribution and Notice

Under the Fair Use provision of Copyright law you are not required to give the original creator credit in your presentation or work. This has more to do with avoiding claims of plagiarism than copyright. However, recognizing the creator or source of any material you include in your presentations under the Fair Use provision is a good practice and demonstrates good digital citizenship. This may be done either when the material is presented or at the end of the presentation. In addition, you should include the following notice:

"This presentation was made using the Fair Use Guidelines for Educational Multimedia. Certain materials are included

using the Fair Use Exemption of the U.S. Copyright Law. Further use of these materials and presentation are restricted."

Using Links to Cite Sources is not enough. In the long run just pasting a bunch of links to cite your sources is not adequate. If you are going to quote someone or your use someone else's art work on your post or in your presentation, then use more than the link to acknowledge where you got the material. At the end of your presentation, include the publication or website, but also the author's name and other relevant information. This way, if the website disappears and becomes a broken link on your presentation, you have still recognized your source.

Good Resources:

Copyright Fair Use and How it Works for Online Images by Sara Hawkins, Nov. 2011

References:

About the fair use. (2015, August). Retrieved from The U.S. Copyright Office: https://www.copyright.gov/fair-use/more-info.html

Fair use. (2015, August). Retrieved from Wikipedia: https://en.wikipedia.org/wiki/Fair_use

Fair use guidelines for educational multimedia. (2015. August). Retrieved from The University of Texas

Libraries: http://copyright.lib.utexas.edu/ccmcguid.html