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220 Cards in this Set
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An instructor would like to take digital photographs of paintings, sculptures, or architectural works and share them with her class. Is this a fair use?
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Response: Works of art and architecture that are not in the public domain may still be available to copy in the form of a photographic image. Photographic reproductions are generally lower-quality and would not likely compete in the same market as the original (if they do, as might be the case with reproducing photographs or digital images, use would likely not be permitted). When deciding if and how to use photographic reproductions of works of art, you should conduct a four-factor fair use analysis for each reproduction. Also, remember that peoples' faces may not appear in photographs that will be publicly displayed without a signed release.
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An instructor wants to include photographs or music in a PowerPoint presentation for his class lecture. Does he need to seek permission from the copyright owners to do so? What if he wants to make changes to the photograph or music file?
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Response: Because the use occurs in the face-to-face classroom, the instructor does not need to seek permission to use the copyrighted photographs and music files. Displaying or performing copyrighted works for classroom purposes is allowed under section 110 of U.S. Copyright Law. In addition, changes made to enhance his instructional purpose, e.g. commentary, criticism, even parody, are activities allowed under the fair use provision.
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An instructor would like to place several articles and book chapters on reserve at the Library for students to access electronically. Access will be limited to only those students enrolled in the class. Is this a fair use?
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Response: Traditionally libraries have provided short term, limited access to materials selected by instructors. Electronic reserve systems exploit new technologies that enhance reserve service and deliver 24/7 remote access to authorized, registered students. Applying the fair use provision of copyright law is critical in library electronic reserve services. Instructors submitting materials to be posted on the Library's eReserve system are responsible for evaluating, on a case-by-case basis, whether the use of each copyrighted work requires permission or qualifies as fair use.
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An instructor would like to compile articles from journals, chapters from textbooks, and various other sources and create a coursepack of readings that students will purchase at the bookstore. Where can she go to find more information about how copyright applies when creating coursepacks?
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Response: Some schools and copy centers provide assistance with getting permissions to use copyrighted works in coursepacks that are purchased by students- however, HCC does not allow the use of coursepacks.
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A faculty member wrote and published an article in a journal last year. Since she authored the article, does she have the right to make and distribute copies?
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Response: It depends. Authors, at the point of a work's creation, hold the exclusive rights given to copyright owners to reproduce and distribute the work. However, in the pre-publication process, many authors transfer all or part of their copyright of a manuscript to the publisher, who may request or require the exclusive rights to publish and distribute the work. When these rights are transferred to the publisher, then the author may only copy and distribute the work with permission from the publisher, or after a determination that fair use, a limited exception to the copyright holder's rights, would apply.In this case, it is important to review and negotiate publication agreements. Publishers of scholarly and academic journals will each have their own default policies regarding author rights.
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An instructor copies the papers submitted by the students in her class and brings them to the Libraries to place on reserve. Does the instructor need permission from each student to copy their paper and share it with others?
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Response: The students' papers are copyrighted and each of the students will own the copyright to their papers. The instructor will need permission from each student to copy the papers. She should get the permissions before bringing the papers to the Libraries. If an instructor gets permission to copy a student authored work for use in Libraries reserves, she would need new permission to use the work again during any subsequent academic term. Please note: Certain uses of student work may require compliance with the Regents Policy on Student Records and the Family Educational Rights Privacy Act (FERPA).
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An instructor scans excerpts from journals, textbooks, and various other sources and creates PDF files of all of the readings. The instructor announces to the class that the readings will be available online at the course LMS (such as Eagle Online) site. Is this fair use?
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Response: Fair use is determined by the results of the four factor analysis conducted for each work. In this scenario, the instructor must conduct a four factor analysis for each journal article, each textbook section, and any other work she wishes to include on the class Eagle Online site. The result may be mixed and fair use might apply to some works while others may require permission from the rights owner for inclusion on the class website.
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A faculty member developing an interactive tutorial that she intends to market to K-12 school districts wants to digitize video clips of commercial television programming that she dubbed off-air. She's described her project to the networks that own the rights to the programs from which the clips will be selected, and asked for permission to use specific clips. The networks all refused. After considering these refusals the faculty member decides to go ahead and assert that her uses are fair use. Is fair use available once permission has been denied?
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Response: As a matter of principle, fair use is controversial and reasonable people will, at times, disagree on what constitutes a fair use of copyright protected works. In this case it may well be that the faculty member's planned use could be viewed as a fair use. However, it is important to note the effect that the permission refusal has on any litigation that might result from these differing viewpoints about fair use. When someone asks for permission to use copyrighted work and the copyright owner refuses to give that permission then those who choose to go forward with the projected use, under the provisions of fair use, can be considered willful infringers in any subsequent litigation over the matter. The penalties for willful infringement are much more severe than those for innocent infringement. Anytime you are refused permission for a specific use it is best to consult with the Office of the General Counsel or an attorney before proceeding with that specific use as a fair use.
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An instructor wants to create a copy of a documentary and post it to her password-protected course website for download. Is this a fair use?
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Response: In the face-to-face classroom setting this situation is clearly allowable under the provisions of Section 110(1) in U.S. copyright law. However, until the University meets all of the policy requirements of the TEACH Act instructors can only look to the provisions of fair use when working with media in the online teaching environment. In this case the instructor would conduct a four factor fair use analysis to determine whether this is an allowable use. The circumstances weigh against fair use. Though the purpose is educational and the nature of this documentary film may be factual, the amount (the entire film) and the market effect (students will download the film and thus be able to keep their own copy) tip the balance of the four factors away from fair use. Use of the entire film may be critical to the educational purpose but by downloading the entire film each student becomes part of a distribution of the film that very likely has a negative market effect which cannot be ignored.
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An instructor wants her students to read an article from a professional journal. She accesses the full text of the article as a PDF through the University Libraries. She saves the article to her computer and then uploads it to her course's Eagle Online site for students to download. Is this a fair use?
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Response: Since the instructor obtained the article from a Libraries licensed electronic resource she needs to understand general limitations and restrictions on use that may be contained in the license agreement between the publisher and the Libraries. The terms of such license agreements control how the materials may be used. It is essential that all instructors using library resources understand their Rights and Responsibilities for the Use of Library-licensed Electronic Resources. Frequently license agreements do not allow copying of PDF files and reposting them to a class web site or Eagle Online site. However, in numerous instances the instructor can make articles available to students from a course web page through a direct link. To learn how to link directly from your web page to an article available as an electronic resource from the Libraries, consult a librarian.
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An instructor has found an article in a professional journal that is particularly useful for a class she teaches every semester. She would like to include the article as reading this semester, and then again next time she teaches the course. Is this a fair use?
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Response: The repeated use of a copyrighted work, from term-to-term, requires particular scrutiny in a fair use evaluation. Such a use explicitly relates to "market effect", the fourth factor in the evaluation. This factor requires one to consider the impact of using a copyrighted work on any market for the original article, including the permissions market. Repeated use, as well as class size, may impact this consideration. Smaller class sizes may mitigate the impact on permissions markets to some extent, and using the article only once, not in future semesters, may further limit the overall market effect of a decision to forego permissions. While not an automatic disqualification, repeated use of a copyrighted work weighs against fair use. For any repeated use to be judged as a fair use, it must be outweighed, in the balance, by the remaining three factors of the evaluation (purpose, nature, and amount).
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In the attempt to save students money a professor scans several chapters from an expensive textbook for her course and uploads a PDF file of the chapters to her Eagle Online site for students to read. This is the only material the students need from this particular textbook to complete class assignments. Is this a fair use?
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Response: This is not a fair use. A four factor analysis of these circumstances would reasonably conclude that the market is directly affected by this activity. Students who would otherwise be expected to purchase the book no longer need to and the publisher is thus deprived of sales. An alternative approach for the teacher would be to place an appropriately acquired copy of the textbook on reserve in the Libraries or to ask students to purchase the text from the bookstore.
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A professor would like to scan a chapter from a book (that is not an anthology or books of essays) and distribute it to students in his class in hardcopy format. Is this a fair use?
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Response: If copying and distributing the book chapter meets the CONTU Guidelines for Classroom Copying, the professor may copy and distribute the chapter.Note that the CONTU Guidelines do not allow for copying a chapter from a workbook, test book or other ‘consumable’ work designed for the educational market. Also note that copying the chapter cannot substitute for purchase of the book. If the copying does not meet the CONTU Guidelines, and a license to use the book chapter is available through the Copyright Clearance Center or the publisher, the professor should seek permission and pay any applicable fees. Chapters of books that are anthologies or that consist of separate essays are more likely to be available for licensed use by the CCC or publishers.
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A professor would like to print out a journal article and distribute it to her entire class. Is this a fair use?
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Response: The professor should check to see whether the journal article is available through the library licensed resources. If so, the article may be printed and distributed, or made available to students as through a durable link, if allowed by the terms of the license. If the article is not available through the library, the professor should consider whether copying and distributing the article complies with the CONTU Guidelines for Classroom Copying. If the CONTU Guidelines do not apply, the professor should consider whether a license to use the article is available through the Copyright Clearance Center or the publisher. If there is an accessible licensing program in place, the faculty member should seek permission to copy and distribute the article.
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A professor would like to convert an article that was not written by him or her into a Word document in order to edit the content. Is this a fair use?
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Response: The faculty member, in this scenario, does not own the copyright to the article. Converting the article into a different format and then editing it may infringe the copyright owner’s exclusive right to create derivative works of the article, unless the copying and editing qualifies as fair use.
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A professor would like to scan a chapter or an excerpt from a book (that is not an anthology or collection of essays) into a pdf and upload it to her online course. Is this a fair use?
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Response: If copying the book chapter or excerpt qualifies as fair use according to the four fair use factors then the professor ma proceed with scanning and uploading the file to her eLearning course. If copying the book chapter or excerpt DOES NOT qualify as fair use according to the four fair use factors, the professor should request permission from the Copyright Clearance Center and pay any applicable fees.
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A professor would like to upload a journal article to her eLearning course. Is this a fair use?
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Response: If the journal article is available through the library’s licensed electronic resources, in most cases the professor may create a link to the article and use it in her eLearning course. In cases where the licensing agreement for the electronic resource does not allow such linking, the professor can work with Library staff to identify alternatives. If the journal article is available only in print, the professor should use the four fair use factors to determine whether the use is fair use. If not, she should seek permission from and pay applicable fees to the Copyright Clearance Center or the copyright holder. Note that the publisher is not always the copyright holder.
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A professor makes a link in her eLearning course to an article that has been posted on another person’s website. Is this a fair use?
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Response: The professor should consider whether the website appears to be authorized to post and distribute the article, and if so, whether the link complies with the website’s stated terms of use. If the article appears to be pirated or posted without permission, then the faculty member should not link to it.
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A professor downloads an article from the internet and makes copies for students in his class. Is this a fair use?
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Response: The professor should consider whether downloading, copying and distributing multiple copies of article complies with the website’s stated terms of use. If the website expressly prohibits such action, then the professor could be liable for violating the terms of use as well as infringing copyright. A better alternative would be to provide students with a link to the article, so that they can read and print it themselves as allowed by the website’s terms of use. If the website does not have terms of use that address these activities, the professor should consider whether fair use applies, using the four fair use factors for journal articles.
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A professor would like to insert a copyrighted news photograph into a poster she will be presenting at an education conference. Is this a fair use?
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Response: The professor should check whether the news photograph is available on a website that has the right to make it available for educational, non-commercial purposes. If the photograph is not available under such terms, the professor should consider whether fair use applies. The professor can strengthen her fair use argument by ensuring that the photograph is accompanied by commentary or criticism (either in the professor’s presentation or on the poster itself). If the photograph is being used for decoration purposes or for other non-transformative purposes, then the fair use argument becomes difficult, and the professor should seek permission.
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An Art professor would like to have paintings scanned from various books to display in class during her classroom lecture. Is this a fair use?
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Response: Before requesting that the images be scanned, the professor should check to see whether digitized versions of the paintings are available online for educational, non-commercial use. A number of museums have digitized their collections, and are making the images available under specified terms (see www.museumlink.com and www.mfa.org). If the images are not legally available online or if the available images are not of the quality necessary for detailed analysis in a classroom setting, the professor should consider whether reproduction of the paintings through scanning is covered by fair use. Detailed information on this issue is provided by Guidance on Art Images. The professor may display the images of the paintings in her classroom without obtaining permission, as allowed by Section 110(1) of the Copyright Act (the Face-to-Face Classroom Teaching Exemption).
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A professor would like to have her 35mm slide collection of artistic visual images (paintings, sculptures and photographs) scanned so she can create a PowerPoint presentation to show in class. Is this a fair use?
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Response: Before requesting that the images be scanned, the professor should check to see whether digitized versions of the artistic visual images are available online for educational, non-commercial use. A number of museums have digitized their collections, and are making the images available under specified terms (see www.museumlink.com or www.mfa.org). If the images are not legally available on line or if the available images are not of the quality necessary for detailed analysis in a classroom setting, the professor should consider whether reproduction of the images through scanning is covered by fair use. Detailed information on this issue is provided by Guidance on Art Images. The professor may display the images in her classroom without obtaining permission, as allowed by Section 110(1) of the Copyright Act (the Face-to-Face Classroom Teaching Exemption).
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A professor would like to include photographs or artistic visual images in her PowerPoint presentation that she will upload into her eLearning course. Is this a fair use?
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Response: Section 110(1) of the Copyright Act allows faculty to display copyrighted images in the classroom without infringing copyright. However, Section 110(1) does not cover displays of images outside of the physical confines of the classroom. In order to post the PowerPoint presentation on her eLearning course, the professor should consider the following issues: (i) can she link to legally available copies of the images, or can she obtain the images for download and use from a museum website that is making the images available for non-profit, educational use; (ii) if not, does display of the images on the eLearning website comply with all of the requirements of the TEACH Act; or (iii) does the professor’s use of the images qualify as fair use?
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A professor has assigned an ePortfolio to her students. The students have added copyrighted images to their portfolio. The portfolios are only accessible to those enlisted in the course. Is this a fair use?
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Response: The professor should consider discussing copyright issues with the students, providing them with a link to or copy of the college Copyright Policy, and encouraging them to use images available through Creative Commons and other open source licenses. The students should be made aware that they could be individually liable for copyright infringement if their use of the images does not qualify as fair use.
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A professor assigns a project for students to create a publicly-available website. The students want to add photographs to their website that they scanned from books or found on other websites. Is this a fair use?
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Response: The professor should consider discussing copyright issues with the students, providing them with a link to or copy of the college Copyright Policy, and encouraging them to use images available through Creative Commons and other open source licenses. The students should be made aware that they could be individually liable for copyright infringement if their use of the photographs does not qualify as fair use.
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A professor would like to have an analog cassette tape of music that she has purchased, converted to a CD, in order to play in her classroom for discussion and analysis. Is this a fair use?
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Response: If the analog cassette tape is available for purchase as a CD, the professor should purchase the CD. If the tape is not available in CD format, the professor should consider whether fair use applies to the format conversion. The professor can enhance her fair use argument by demonstrating why the format conversion is needed for educational purposes, and by converting only the amount of music necessary for the classroom discussion. Note that the professor can play the music in the classroom without fear of copyright infringement, as allowed by Section 110(1) of the Copyright Act.
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A professor would like to have copies made of a language CD in order to have more than one copy available to students in the Media Listening & Viewing Room. Is this a fair use?
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Response: Fair use most likely would not apply to the reproduction of language CDs specifically designed and marketed for use by educational institutions. The fourth factor of the fair use test (effect of the use on the market) would weigh heavily against fair use. If the language CDs were designed for the educational market, then the professor should purchase additional language CD to meet the student’s needs.
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A professor has students create a Digital Story assignment. Students insert music into their Digital Story. Is this a fair use?
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Response: The professor should consider discussing copyright issues with the students, providing them with a link to or copy of the college Copyright Policy, and encouraging them to use music available through Creative Commons and other open source licenses. In no event should students use music obtained illegally through peer-to-peer file sharing programs.
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A professor would like to have a language tape converted to mp3 files in order to upload into her eLearning course. Is this a fair use?
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Response: Fair use most likely would not apply to the conversion and electronic distribution of language tapes specifically designed and marketed for use by educational institutions. The fourth factor of the fair use test (effect of the use on the market) would weigh heavily against fair use. The professor should purchase the language tape in electronic format if available or seek permission.
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A professor assigns students a project where students bring in a piece of music to critique in class. He would now like to upload these music clips to his eLearning course. Is this a fair use?
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Response: The professor should consider posting links to legally available copies of the music (on iTunes or otherwise). If this is not possible, the professor should consider whether all of the requirements of the TEACH Act apply. Note that the TEACH Act requires materials to be posted on course websites in streaming media or other non-downloadable formats. If the TEACH Act does not apply, the professor should consider whether fair use applies to this use of the music clips. The professor could enhance his fair use argument by ensuring that written critiques of the music clips accompany the music clips as they appear on the eLearning course.
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A professor assigns students a class blog. Some of the students have uploaded music to the blog as part of their assignment. Is this a fair use?
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Response: The professor should consider discussing copyright issues with the students, providing them with a link to or copy of the college Copyright Policy, and encouraging them to use music legally available through Creative Commons and other open source licenses. Students should be notified that the Recording Industry Association of America has filed lawsuits against students for distributing music without permission.
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A professor has several older VHS videocassettes that are used regularly for classroom presentations. The videos are not available in DVD format. The professor would like the VHS tapes converted to DVD. Is this a fair use?
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Response: Converting the VHS tapes to DVD would constitute creation of a derivative work, which could infringe the copyright holder’s exclusive right to make derivative works unless fair use or another exemption applies. The faculty member could strengthen her fair use argument by converting only the parts of the VHS tapes that are needed for her class presentation, and using the DVDs only in class. If the tapes become available on DVD or other digital formats, the faculty member should purchase the tapes in the new formats.
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A faculty member records a segment of the evening news on her home VCR and the next day shows the recording to her class. Afterward she burns the program onto a DVD for future classroom presentations. Is this a fair use?
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Response: The faculty member may record the evening news on her home VCR or DVR; such practices are allowed under a Supreme Court decision that time shifting qualifies as fair use. The faculty member may show the recording in her classroom to students enrolled in the class, as allowed by Section 110(1) of the Copyright Act. The faculty member would have a strong argument that fair use allows her to burn the program onto a DVD for future use in class.
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A professor has several older VHS videocassettes that are used regularly for classroom presentations. The videos are not available in DVD format. The professor would like to have the VHS tapes digitized and uploaded on her Eagle Online page. Is this a fair use?
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Response: Converting the VHS tapes to DVD would constitute creation of a derivative work, which could infringe the copyright holder’s exclusive right to make derivative works unless fair use or the TEACH Act applies. The faculty member could strengthen her fair use argument by converting only the parts of the VHS tapes that are needed for her class presentation, and posting only those sections on her course website in compliance with TEACH Act requirements, if possible. The digitized videos should be providing in streaming media format, and students should be warned in writing not to download or otherwise retain or distribute the videos. Access to the course website must be restricted to enrolled students. Please see the college copyright policy for additional information on TEACH Act requirements. If the tapes become available on DVD or other digital formats, the faculty member should purchase the tapes in the new formats.
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A faculty member would like to have a DVD of an entire current Hollywood movie or television show digitized and uploaded to her Eagle Online page for students to have access. Is this a fair use?
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Response: The faculty member should place the DVD on reserve in the library or check to see whether the students can view or download the movie or television show from websites such as iTunes, NBC.com or other legal sources. Digitizing an entire DVD could violate strict federal laws prohibiting circumvention of digital rights management technology, if the DVD is protected by such technology (Digital Millennium Copyright Act). The TEACH Act would not apply to this scenario, because it allows for the posting of reasonable and limited portions of audiovisual materials. In addition, it is unlikely that fair use will apply to this scenario, especially if the use of the movie or television show in this manner would harm the market for digital distribution of the work.
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A faculty member records a segment of the evening news on her home VCR and would like to have it made into a Quicktime movie to put on her Eagle Online page. Is this a fair use?
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Response: The faculty member may record the evening news on her home VCR or DVR; such practices are allowed under a Supreme Court decision that time shifting qualifies as fair use. Before the faculty members begins to analyze whether Copyright Act exemptions apply to her proposed digitization and posting of the news clip,she should check whether the clip is available for viewing on the television station’s website, and if so, she should direct students to that website. If the clip is not available, the faculty member should consider the news clip can be digitized and posted on her Eagle Online page in compliance with all of the requirements of the TEACH Act. If the TEACH Act does not apply, the faculty member should consider whether fair use could apply by analyzing the four fair use factors for video.
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A professor has several older VHS videocassettes that are used regularly for classroom presentations. The videos are not available in DVD format. The professor would like to have the VHS tapes digitized and uploaded onto her personal webpage. Is this a fair use?
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Response: Digitizing the VHS could infringe the copyright holder’s exclusive right to make copies and derivative works, and uploading the digitized version onto a publicly accessible website would be likely to infringe the copyright holder’s exclusive right to distribute and publicly display the work. The conversion and uploading of a short video or a short portion of a video might still be permissible as fair use, but one would have to consider the fair use factors carefully. The argument for fair use might be stronger if the material that was converted and uploaded was (1) factual or scientific, rather than fictional or dramatic; (2) only a small portion of a larger work; and (3) used in a transformative way - for example, as a vehicle for criticism, commentary, or parody. As a general matter, however, the professor should consider getting permission from the copyright holder before making a copyrighted video publicly accessible on her website.
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A faculty member would like to have a DVD digitized and uploaded to her personal webpage for students to have access. Is this a fair use?
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Response: Digitizing a DVD could violate strict federal laws prohibiting circumvention of digital rights management technology, if the DVD is protected by such technology (Digital Millennium Copyright Act). Beyond that, the same considerations apply as in the scenario above. Bear in mind that even though the professor’s purpose is to make the video available to her own students, if it is uploaded onto an unrestricted webpage, it will potentially become available to everyone. To avoid possible problems, the professor should look into whether she can obtain permission from the copyright holder for the use, or whether the video is available for viewing or downloading from a website that is sponsored or licensed by the copyright holder (such as a television show available for viewing on CBS.com).
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While in film school, you produced a funny, sardonic short film, looking at the role of characters of color in the Star Wars series and what their treatment reveals about George Lucas’ attitudes toward race and racism. You focused particularly on Darth Vader. Now you would like to take this project and develop an hour-long essay-style documentary that quotes liberally from several of the Lucas films. In particular, you want to analyze the scene from Revenge of the Sith in which Anakin Skywalker definitively turns to the dark side, murdering the Jedi played by Samuel L. Jackson. You believe that before broadcast or educational distribution, the feature-length version (only 70 minutes, making it easier to trim down for broadcast) will launch at the Sundance Film Festival to wide acclaim.Do you have a fair use right to quote extensively from the Star Wars series throughout your film, how extensively? Can you claim fair use for an entire scene, such as the murder scene from "Revenge of the Sith?"
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Response: Statement One from the "Documentary Filmmakers' Statement of Best Practices in Fair Use" is ONE: EMPLOYING COPYRIGHTED MATERIAL AS THE OBJECT OF SOCIAL, POLITICAL, OR CULTURAL CRITIQUE. This class of uses involves situations in which documentarians engage in media critique, whether of text, image, or sound works. In these cases, they hold the specific copyrighted work up for critical analysis. Such uses are generally permissible as an exercise of documentarians’ fair use rights. This is analogous to the way that a newspaper might review a new book and quote from it by way of illustration. This activity is at the very core of the fair use doctrine as a safeguard for freedom of expression. So long as the filmmaker analyzes or comments on the work itself, the means may vary. Direct commentary and parody, for example, function as forms of critique. You can see more at http://www.centerforsocialmedia.org/fair-use/best-practices/documentary-filmmakers-statement-best-practices-fair-use
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You are planning to make a series of films on the "real" Greek myths and epics, as they actually were told and understood in ancient times. To show how different those originals were from today's ideas of the same stories, you plan to quote from Hollywood films. For instance, in an episode devoted to the hero Jason, you would open with a scene from the 1963 version of Jason and the Argonauts, in which Jason confronts one of Harry Harryhausen's terrifying monsters. For a discussion of The Iliad, you would like to start with a battle scene from Troy, including a close-up of Brad Pitt as Achilles. In each of these cases, you would be choosing a clip that contrasts sharply with what you've found out about the "real" Greek tales.. In addition, you would also like to do entertaining montages showing the importance of Greek myths in modern movies; Woody Allen's "Mighty Aphrodite," Pier Paolo Pasolini's "Medea" and the Disney animated film "Hercules" might feature in such a montage, using evocative short clips to ma
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Response: Statement Two from the "Documentary Filmmakers' Statement of Best Practices in Fair Use" is TWO: QUOTING COPYRIGHTED WORKS OF POPULAR CULTURE TO ILLUSTRATE AN ARGUMENT OR POINT. Here the concern is with material that is quoted not because it is, in itself, the object of critique but because it illustrates some argument or point that a filmmaker is developing—as clips from fiction films might be used to demonstrate changing American attitudes toward race. This sort of quotation should generally be considered as fair use. The possibility that the quotes might entertain and engage an audience as well as illustrate a filmmaker’s argument takes nothing away from the fair use claim. Works of popular culture typically have illustrative power, and in analogous situations, writers in print media do not hesitate to use illustrative quotations (both words and images). You can see more at http://www.centerforsocialmedia.org/fair-use/best-practices/documentary-filmmakers-statement-best-practices-fair-use
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You are making a film about the emotional and learning challenges facing young girls who attend a particular school in Maryland. You have filmed your subjects hanging out at the mall, going to movies, and being with each other at home. Along the way, you have filmed or recorded corporate logos, movie posters, piped-in music in stores, television programs on television sets in private homes, and broadcasts heard on car radios. Then at one point, on their way to a soccer game, the girls spontaneously sing along with a popular song that happens to be on the air. While at a sleepover, the girls repeatedly play a CD track of their favorite performer (a best-selling Warner Brothers artist) and practice dance steps to it. Do you have a fair use right to use all the commercially-created culture these girls encounter when they go out in public? Are there any limits on that right? Should you be able to claim fair use for your footage of their sing-along in the car? What about the music they choose to practice steps?
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Response: One of the Rules of Thumb (Statement Three) from the "Documentary Filmmakers' Statement of Best Practices in Fair Use" is CAPTURING COPYRIGHTED MEDIA CONTENT IN THE PROCESS OF FILMING SOMETHING ELSE Documentarians often record copyrighted sounds and images when they are filming sequences in real-life settings. Common examples are the text of a poster on a wall, music playing on a radio, and television programming heard (perhaps seen) in the background. In the context of the documentary, the incidentally captured material is an integral part of the ordinary reality being documented. Only by altering and thus falsifying the reality they film— such as telling subjects to turn off the radio, take down a poster, or turn off the TV—could documentarians avoid this.
Fair use should protect documentary filmmakers from being forced to falsify reality. You can see more at http://www.centerforsocialmedia.org/fair-use/best-practices/documentary-filmmakers-statement-best-practices-fair-use |
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Inspired by Vikram Jayanti’s "Feast of Death," you are making a film about a famous crime that took place on the Eastern Shore of Maryland some 40 years ago. It involved gruesome and seemingly obsessive mutilations to a young boy’s corpse. You have returned to the scene of the crime, filmed the community, and interviewed surviving local residents. One person suddenly remembers that she has an image of the crime scene – a print given to her at the time by the photographer. This previously unpublished picture not only brilliantly illustrates a central point you want to make, but it also provides new insight into the incident. You track down the photographer’s niece, who handles his estate, but she refuses to license his work; she wants to distance herself and her family from this blight upon local history. Do you have a fair use right to use this photograph in your film?
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Response: Statement Four from the "Documentary Filmmakers' Statement of Best Practices in Fair Use" is FOUR: USING COPYRIGHTED MATERIAL IN A HISTORICAL SEQUENCE. In many cases the best way to tell a historical story or make a historical point is to make selective use of words that were spoken during the events in question, music that was associated with the events, or photographs and films that were taken at that time. In many cases, such material is available under license. On occasion, the licensing system breaks down. Given the social and educational importance of the documentary medium, fair use should apply in some instances of this kind. To conclude otherwise would be to deny the potential of film making to represent history to new generations of citizens. Properly conditioned, this variety of fair use is critical to fulfilling the mission of copyright. You can see more at http://www.centerforsocialmedia.org/fair-use/best-practices/documentary-filmmakers-statement-best-practices-fair-use
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A University professor records a showing of the "Andy Griffith Show" on her VCR. She then puts the tape on reserve in the library so students can watch it to critique it.
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Response: Most likely the professor is violating copyright. A better solution would be to place on reserve less than 10% of the whole. This, then, would fall under fair use, especially since the viewing has a direct educational purpose.
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An elementary school teacher copies a song from a CD to upload to the web so that students can listen to it.
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Response: Under the fair use guidelines, the teacher is most likely violating copyright. Even if the teacher were using the material for educational purposes, he/she is depriving the artist of income from the sale of the cd.
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A University professor makes several dozen copies, one for each student in the class, of a published, academic journal article.
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Response: No, the professor is probably not violating copyright. The professor/teacher is allowed to make multiple copies of the article if: It meets the test of brevity--is less than 2500 words. It meets the test of spontaneity --done within a reasonable time period. The inspiration and decision to use the work and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission. It meets the cumulative effect test (the content is relevant to the course being taught). a copyright notice appears on each copy.
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An online teacher sends students to a link deep into a web site to complete a lesson provided there. The web site is operated by a vendor, who markets online instruction. Is this a fair use?
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Response:It would seem that the use of a link to a web site would be harmless. In fact, one could argue that the links would increase the flow of traffic on the web site. While this may be the case, the flow is counted, and advertisers are parked, on external sites. Bypassing those outer links has the potential to reduce the value of all associated links. The fair use measurement of value bring the infringement into question. Then, there are cases that determine that while the link is not a copy, the selection of the link causes a copy to be made onto the RAM. And, the teacher does have ample time to obtain permission. Most likely, the case would not be in favor of the teacher.The following cases make for interesting reading on deep linking: Ticketmaster Corp v Tickets.com; Washington Post v Total News, Inc.;SNC Havas Numerique v SA Kelijob;Intellectual Reserve Inc. v Utah Lighthouse Ministries, Inc.
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Some students created web sites so that others could obtain copies of software and music can be easily distributed. Is this a fair use?
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Response: Students seem to have an impulse to share all sorts of work, especially music and software, when they can save a dime or two. These particular students created web sites just so others could obtain copies of software and music for free. It is indeed a popular thing among our students to find and share software and music. These particular college students created web sites dedicated to the purposes of making copies without permission. While this “Robin Hood” syndrome sounds noble to students around the world, the fact is, they are skimming profits from the providers. Interestingly, the two different students received opposing verdicts. One was found guilty of copyright infringement, while the other was found not guilty, primarily because he had not acted for profit. As the capacity of legal authorities to detect and follow up on technological innovations for copyright violations, it becomes increasingly risky to engage in this freeware/shareware activity.
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Arthur Miller, a distinguished Harvard University Law professor, videotaped his lectures and sold them to Concord University. Law students at Concord paid for and used these on-line lectures for course work. Miller did not inform Harvard University administrators or ask permission. Miller reasoned that since he did not provide any interaction or service to the students at who were taking classes at Concord, and since he made the videotapes in accordance with Harvard’s guidelines concerning consulting and outside employment, his actions were permissible. Harvard disagreed. Who is correct in this case?
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Response: Copyright law gives rights of ownership of works-for-hire to the employer. However, in many cases alternate agreements have been reached. Traditionally, universities hold to “works-for-hire” for staff but not for faculty. Secondary school systems traditionally hold to “works-for-hire” for all employees. In this particular case, the primary issue between Harvard and Professor Miller was not about copyright because Harvard did not claim ownership of the taped lectures. Instead, it was about whether Miller could “moonlight” his services to another university. This incident led Harvard administrators to create a conflict-of-interest policy specific to online teaching that allows it to protect the institution’s reputation and financial interests.
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A university professor creates course materials to teach a new course. Later, she moves to another university and decides to use the same course materials to teach the course at her new institution.
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Response: U.S. copyright law gives rights of ownership of works-for-hire to the employer. Because the creation of new course materials could be considered among the normal duties of a university professor, it is possible that such works would be considered a work-for-hire and so the university could claim copyright on them. In other words, it may be a copyright violation for a professor to use materials created at one institution to teach a course at another. However, several court opinions have held that the university professors should not be considered employees in regard to work for hire. This is in line with the academic tradition of allowing professors to retain copyrights for scholarly works or other materials they create.
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A university Teacher Resource Team develops, hosts, and supports online courses developed by professors in the school. They are accused of copyright infringement because of illegally copied articles which are a part of one of those courses. Is this a fair use?
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Response: Maybe. It is very common for universities to provide teams to support the development and delivery of online courses. The team usually has a role as the host of the server on which the courses exist. In this particular case, the professor has had them to scan chapters from a text, copy some graphics form another university, and he delivers these to his students via the Internet. The use of online instruction has outpaced the development of copyright legislation to regulate the use of technology in copyright violation. While the fair use doctrine has been found both to the favor and to the disfavor of similar professors, the involvement of a third party, the service provider, adds new meaning to the scenario. The professor may or may not be found guilty, depending on the weight the particular court places on each of the fair use elements. Logically, we recommend that the professor get permission, or buy sufficient copies.
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A University library subscribes to a scholarly journal and a professor wants to make photocopies of articles from that journal for archival purposes. Is this allowable under Fair Use?
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Response: Since Fair Use is so slippery, it is difficult to determine if it will actually protect anything in a court of law. Most of the case law for this scenario involves corporate employees rather than university faculty members, so our professor’s intentions might indeed be allowable due to factor number one (non-profit, educational purposes), but to make an accurate assessment, we must more fully know the professor’s intentions. What is the nature of her research and what role will the photocopied articles play in that research? Will the professor profit from the use of those articles? Would it be unreasonable to expect the professor to take out a personal subscription to the journal? Or at least to request the publisher’s permission to make the copies? Even if there is a violation, is there even a remote chance of the professor being caught? You can see more at http://www.thecopyrightsite.org/scenarios/photocopying.html
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A University professor wants to make a collection of assorted readings available to her students. She will have her students buy a course pack from the local photocopying shop. Is this a fair use?
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Response: In 1982 several publishing companies brought a law suit against NYU, nine faculty members, and a photocopying establishment. The Association of American Publishers which coordinated the law suit on behalf of the publishing companies sought an injunction to keep the professors from copying course anthologies. The publishers reached an out-of-court settlement with the defendants thus requiring the university to appropriate, promulgate, and invoke more stringent copyright rules. After the success of the preceding law suit, more publishers decided to hop on the band wagon and get their share of what they felt were infringing activities perpetuated by the academic community. Publishers began targeting nationwide printing companies such as Kinko's, especially those near universities and colleges. Then Kinko's defended its actions by stating that course packets legitimately qualified under fair use because they were creating them for educators. You can see more at http://www.thecopyrightsite.org/scenario
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Current copyright law states that anything that is produced in final form is automatically copyrighted.If I am doing research that is not yet completed, can it be protected?
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Response: In most instances scholars are more than happy to share their research and writings with anyone who inquires. Indeed, the academy encourages the sharing of knowledge. That is why we are all here right? However, in certain situations scholars can reserve their finished work or even works in progress. If results of the research are not conclusive (for instance, if they have not been replicated), then colleagues will typically not request to look at the new research. Or, if the researcher owns the copyright or patent on the materials, she might decide to keep control of her work even after it has been published. This, however, is the antithesis of the academic mission at most institutions. The judicial system has to balance the academic benefits to the scholar who controls his own research against societal interests. You can see more at http://www.thecopyrightsite.org/scenarios/scholarly.html
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A teacher has recently started using PowerPoint lectures in his classes. To keep the presentations lively, he likes to include hip hop music in the presentations, and he sometimes includes current photos from the news. Sometimes the teacher would like to make changes to the music and pictures in order to try to make a point, but he's not sure if he should. Would this use be fair?
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Response: Because the use occurs in the face-to-face classroom, the instructor does not need to seek permission to use the copyrighted photographs and music files. Displaying or performing copyrighted works for classroom purposes is allowed under section 110 of U.S. Copyright Law. In addition, changes made to enhance his instructional purpose, e.g. commentary, criticism, even parody, are activities allowed under the fair use provision.
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A teacher has found an article in a journal that is particularly useful for a class she teaches every semester. She would like to include the article as a reading assignment this semester, and then again next time she teaches the course. Is this a fair use?
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Response: The repeated use of a copyrighted work, from term-to-term, requires particular scrutiny in a fair use evaluation. Such a use explicitly relates to "market effect", the fourth factor in the evaluation. This factor requires one to consider the impact of using a copyrighted work on any market for the original article, including the permissions market. Repeated use, as well as class size, may impact this consideration. Smaller class sizes may mitigate the impact on permissions markets to some extent, and using the article only once, not in future semesters, may further limit the overall market effect of a decision to forego permissions. While not an automatic disqualification, repeated use of a copyrighted work weighs against fair use. For any repeated use to be judged as a fair use, it must be outweighed, in the balance, by the remaining three factors of the evaluation (purpose, nature, and amount).
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A teacher records a segment of the evening news on her home VCR and shows the recording the next day in class. Afterwards, she selects a two minute clip from the segment and burns it onto a DVD for future classroom presentations. Are these uses fair ones?
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Response: Off-air video recording is subject to the same copyright considerations that any other media used in classroom instruction would be. News broadcasts are copyrighted, usually by the producing network. Before using home recordings in a classroom presentation instructors should conduct a thorough four factor analysis to determine if fair use might apply to the circumstances. In this particular instance the faculty member may find that her initial use of the recording is a fair use. Any subsequent use, even the short 2 minute clip, would require another four factor analysis. Circumstances can change over time. The network may later make the segment available commercially, on DVD. This condition could compel the faculty member to purchase the DVD from the network rather than rely on her homemade DVD copy for instructional use. In general analog to digital conversions are not permitted when content is commercially available in digital formats.
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For an assignment, a student is writing a paper on the influence of Bob Dylan on American pop music. In this article, she quotes lines from several of his songs. Is this a fair use of the song lyrics, or does she need to seek permission to use the material? What if the paper is published in the local music magazine?
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Response: Reproducing portions of a copyrighted work for the purposes of comment and criticism are often allowed under fair use. A four-factor fair use analysis will need to be conducted for each excerpt from each song used in the article. Factors such as length of the excerpt should be considered; using shorter segments that include only the lines necessary for the purpose of the article will lead to a more favorable fair use determination.
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A school is producing a website. Students have found several graphics on other websites that they would like to include on their site. The original source is being given credit. Is this a fair use?
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Response: Each use would need to be evaluated individually. Are the images licensed for any use? If not, are the Four Factors of Fair Use being met? Will be website exist for a time period beyond class use? How are the images being used- as thumbnails or links? These are all questions that should be considered.
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As part of an assignment, students are required to create a Power Point to present to their class. Some of them want to use copyrighted material for either background or to accompany a particular frame in their presentations. Is this a fair use?
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Response: The Fair Use Guidelines for Educational Multimedia should be used here as guidelines. For example, a photograph or illustration may be used in its entirety but no more than five images by the same artist or photographer. When using photographs and illustrations from a published collective work, you may use no more than 10% or 15 images, whichever is less. The time limitation is two years and attribution guidelines should be followed.
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A groups of students have produced a school presentation accompanied by playing background music directly from the original source CD. The presentation is video taped for transmission over the local, cable access channel. Is this a fair use?
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Response: This case offers a bit of caution about the difference between allowing public access to materials, as opposed to restricting access. Granting public access to entire works is much more difficult to justify as fair use.
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A department head gathers samples of student work to portray "A" type work, "B" type work, etc. She eliminates the students' names, then duplicates and disseminates these examples to teachers. Some teachers, in turn, distribute the examples to students. Is this a fair use?
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Response: As a rule, students own all the rights of copyright in and to the work they create as part of their education, whether generally or within the scope of a particular class. Any use of that work must be with the express and generally speaking written permission of the student. This is because under United States copyright law the creator of any copyrightable work owns all rights to that work unless they are bona fide employees or have entered into a valid, written and signed agreement transferring those rights to a third party. To obtain those rights, the school would have to have a valid, written agreement.
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The after-school program shows videos that have been purchased with school funds and are included in a the media center's video collection. The programs are used for entertainment and informal education, but there is no formal lesson plan.
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Response: This is only legally permitted if the school itself has a Public Performance Site License from Movie Licensing USA or another film licensing agency. This use is not covered under Section 110. Schools without such a license will be held liable if an outside organization involves them in copyright infringement by permitting movies to be used in their facility.
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Students in a web design class have been given an assignment to make a personal website. Timmy Thompson, a student in the class, loves snowboarding and wants to put some snowboarding pictures on his personal site. The only problem is that he doesn't have any good pictures of himself. So, Timmy searches for snowboarding images a search engine and finds a site with a number of good pictures he would like to use. He looks everywhere on the site, but doesn't see anything written that says the images are protected by copyright. Timmy downloads a few of the images and uses them on his personal website on the hobbies page. Under each picture he cites the source of the image. Is this a fair use?
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Response: Timmy must assume that the images are protected under copyright since the display of the copyright symbol or statement is not required. In addition, while Timmy may be able to use many of the images more freely for educational purposes, under existing Fair Use guidelines, the continued use of them on his personal website would not be covered in the same way and permission should be sought.
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Students have been instructed to create a display or website about their favorite place. The teacher warned the students that points will be deducted from their final score if he finds any copyright violations. Not wanting to jeopardize his grade, Timmy Thompson gets his parents to drive him to his favorite place and takes pictures to use on his website. When students present their finished projects to the class, Timmy notices that Susie Simpson has used a bunch of pictures on her website that he knows must have been taken by a professional photographer. She didn't even site the source of the images. Timmy complains to the teacher that he thinks Susie used copyrighted images on her website. Susie defends herself, claiming that she got the images off of a U.S. government website and was allowed to use the images without restrictions because they were in the public domain.
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Response: If Susie is correct about the public domain status of her images, then she is free to use them as she wants to. If you copy from a public domain writing, do you have to credit the author? The United States Supreme Court has answered, “No,” holding that there is no legal requirement to provide any attribution when public domain works are copied and placed into new works. (Dastar Corp. v. 20th Century Fox Film Corp., 123 S.Ct. 2041 (2003).) However, just because there is no legal requirement to give credit to the creators of public domain works, doesn’t mean you don’t have to do it. When copying works from the public domain, be careful to avoid plagiarism. Plagiarism occurs when someone poses as the originator of words he did not write, ideas he did not conceive, or facts he did not discover. Although you cannot be sued for plagiarizing a public domain work, doing so can result in serious professional and personal penalties. For example, in the case of college professors and journalists, it may resul
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As a final project, students have been tasked with creating a website for a local business in the community. Timmy Thompson picks his aunt's restaurant since he knows that she doesn't have a website already. While searching the Internet for ideas, Timmy comes across a stock photography website that has some really good close up pictures of different types of food. These images would be perfect for his project, so Timmy reads the usage restrictions for the images. Timmy is excited when he reads that the images require payment for commercial use, but are offered free for not-for profit or educational use. Since he is doing the project for a school assignment, Timmy downloads the images and uses them in his project. Timmy completes the final website and receives praise from everyone, including his aunt and Mr. Johnson, about how nice the site looks.
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Response:As long as the site is only used as an educational project, the use of the images should be fair if all criteria are met. If the aunt wants to continue to use the website in support of her commercial business, then permission to use the images should be sought and payment made.
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A teacher comes to class with a stack of papers to hand out. It turns out that the teacher had made several dozen copies, one for each student in the class, of a published article. Is this a fair use?
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Response: The professor is probably not violating copyright. The professor/teacher is allowed to make multiple copies of the article if it meets the test of brevity--is less than 2500 words; it meets the test of spontaneity --done within a reasonable time period. The inspiration and decision to use the work and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission; it meets the cumulative effect test (the content is relevant to the course being taught); and a copyright notice appears on each copy.
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While her class is studying classical music, a music teacher uploads a song from a CD to her teacher website so that students can listen to it. The students like it so much, they ask her to upload the whole CD. Is this a fair use?
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Response: The scenario as described does not give us enough information to make a full determination here. If the music is classical, it may be old enough to be in the public domain. In this case, the use would be fine. But beware: modern recordings of public domain pieces are themselves subject to copyright. In other words, Beethoven's Ninth Symphony may be in the public domain, but the recording made by the Berlin Philharmonic is definitely NOT! But, with works covered under copyright, this is likely a violation of copyright if the entire CD is uploaded. Can the instructor use short clips? Can downloading be prevented?
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The owner of the local video store supports the school by donating one videotape rental-free to the school every Friday. The video is shown in the multi-purpose room to reward students with perfect attendance that week. Is this a fair use?
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Response: “Entertainment” and “reward” are explicitly excluded under copyright guidelines.To show a movie for entertainment purposes, you must obtain a version from an authorized distributor who can license you to show it.
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A history teacher taped the original ABC news report showing Richard Nixon leaving the White House after he resigned. She made it at home on her personal VCR and used her own tape. She uses the entire news program every year in her classroom. Is this a fair use?
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Response: This is not a fair use. Congress holds that videotapes of publicly broadcast shows can only be shown for 10 days afterwards unless the copyright holder grants greater allowances for educators. The time has long passed when she should have asked permission or purchased the tape.
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A teacher rents "Gone With the Wind" to show the burning of Atlanta scene to her class while studying the Civil War. Is this a fair use?
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Response: The video is a legal copy being used for instructional purposes, so this is a fair use.
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A student doing a multimedia report discovers how to copy the QuickTime movie of Kennedy's "We shall go to the moon" speech from a CD-ROM encyclopedia. He presents the report to his classmates.Then the teacher posts the projects on the school LAN. Is this a fair use?
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Response: The length of the clip and its use for educational purposes support the fact that this is fair use. Since the school LAN is presumably not accessible to the outside world, posting the report should not cause a problem.
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A student finds a photo online dramatizing a pre-Columbian Viking landing in America. Since the school symbol is the Viking, he uses this photo as a graphic element on the school's Web page--giving credit to the site from which it was copied. Is this a fair use?
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Response: This is not a fair use. Internet pages are copyrighted automatically. The student cannot safely post (and therefore re-copyright) anything for the general public without permission – even if credit is given. Use in a classroom report would have been fair use.
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A science teacher asks the school librarian to record a great episode of Bill Nye the Science Guy. He figures he'll use it for a couple of years. Is this a fair use?
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Response: The distributors of “Bill Nye,” like those of many other educational shows, allow educational retention after original broadcast, in this case, for three years, so the use is fine.
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A student building a multimedia art project uses copyrighted images of Frank Lloyd Wright buildings downloaded from the Web. He submits this project to a multimedia competition honoring classroom work and wins a prize for the school. Is this a fair use?
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Response: Yes, this is a fair use. The competition was expressly designed for classroom work by students. If the resulting projects were distributed on CD-ROM or posted at a Web site, however, the copyrighted works could cause a problem.
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The teacher of a winning multimedia project shows it at an art conference for educators. It cost $50 to attend the conference and the teacher is awarded free attendance because he is a presenter. Is this a fair use?
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Response: Fair use is generally extended to include educator trainings and conferences.
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A high school video class produces a student video yearbook that they sell at community events to raise money for equipment for the school. They use well-known popular music clips. The money all goes to the school and the songs are fully listed in the credits. Is this a fair use?
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Response: This is not a fair use. It is not instructional use. The fact that money is being charged is irrelevant; the problem lies in the use of copyrighted materials for non-instructional purposes.
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An middle school transcribes the lyrics from the album "Cats" and puts it on as the school mini-musical. A teacher plays the music by ear on the piano, and the students perform every song. There is no admission charge. Is this a fair use?
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Response: This is not fair use. The copyright holder sells the performance rights to schools in a very specific way. If you want "Cats," buy the performance rights. Sell tickets if you have to.
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You are producing a website for your political science class. You find a political cartoon on the Web that is a perfect illustration of the divisive nature of a two-party political system. You capture the cartoon and place it on your website. Is this a fair use?
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Response: This is copyright infringment. Chances are the political cartoonist was paid for his or her work. The news agency or political group that placed the work online probably holds the copyright. When you, in effect, steal the cartoon, you are guilty of copyright infringement. Try placing a link to the cartoon on your website. If you would prefer to have the cartoon on your site, contact the copyright holder for permission.
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As part of a social studies assignment, students have been required to create PowerPoint presentations to present to their classes. Some of them want to use copyrighted music for either background or to accompany a particular frame in their presentation.Is this a fair use?
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Response:The Fair Use Guidelines for Educational Multimedia should be used here as guidelines. For example, in the case of music, up to 10%, but in no event more than 30 seconds, of the music and lyrics from an individual musical work (or in the aggregate of extracts from an individual work), whether the musical work is embodied in copies, or audio or audiovisual works, may be reproduced or otherwise incorporated as a part of a multimedia project. Any alterations to a musical work shall not change the basic melody or the fundamental character of the work. The time limitation is two years and attribution guidelines should be followed.
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A teacher buys a single-user software program with department money and puts it on the local-area network (LAN). It is frequently used by several teachers at the same time. This is done in violation of a written district policy against using single-user programs on the LAN. After two years, the software company takes action against the individual teacher. The district is also liable. Is this fair use that can be defended?
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Response: No, this is not fair use. The district must enforce its written policy, not just post it. Somebody needs to be monitoring the network (and, it must be said, the stand-alone computers, too). Unenforced policy cost one large school district over $1 million.
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Copyrighted material used in multimedia projects may remain in the student's portfolio forever. Is this a fair use?
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Response: This is Fair Use as long as the material is not publicly distributed.
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Using a legal copy of the program Webwhacker, a district technology specialist downloads and caches educational and noneducational Web pages for school Internet trainings. Is this a fair use?
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Response: Although netiquette would dictate asking permission, since it's serving an instructional purpose, the trainer should be all right. Because it is impossible to view a Web page without first downloading it into computer memory, merely caching the page for future use should not be interpreted as illegal copying.
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A student brings in an audio cassette copy of the national anthem that he copied from an audio CD lent to him by a friend. Another student digitizes this into a HyperStudio stack. Is this a fair use?
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Response: Not a fair use. For fair use, the copy must be legally obtained. The student was using an unauthorized copy. Francis Scott Key may be dead, but the orchestra that created the arrangement and created the tape is probably alive and kicking.
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A high school video class produces a student video yearbook that they sell at community events to raise money for equipment for the school. They use well-known popular music clips. The money all goes to the school and the songs are fully listed in the credits. Is this a fair use?
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Response: This is not fair use. This is not instructional use. The fact that money is being charged is irrelevant; the problem lies in the use of copyrighted materials for non-instructional purposes.
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A school can only afford one copy of Kid Pix. It loads this onto the library computer and all students and all classes have access to it all day. The teachers copy and install Kid Pix Player on their classroom computers to evaluate the student work. Is this a fair use?
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Response: This is permissible. "Players" such as this are intended for distribution and the program itself is never in simultaneous use.
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A media aide tapes "60 Minutes" every week in case teachers need it. Is this a fair use?
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Response: Not valid under Fair Use Doctrine! Schools may not tape in anticipation of requests. They can act only on actual requests.
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A professor at a prominent University of California campus copies an expensive software program for every student in his class. This state university is taken to court by the copyright holder. Will the university lose?
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Response: Probably not. The copyright holder has lost before in a similar case. The U. C. schools are state schools and the court ruled the state could not be sued unless it consented. The ethical issue was unaddressed by the court.
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A schoool purchases one copy of a typing tutorial program, which is housed in the library. It is checked out to individual students to take home for two-week periods. Is this permissible as long as the homes erase the program at the end of the two weeks?
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Response: The checkout is fine. The school must make serious efforts, however, to make sure parents erase the program from their computers.
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"Seinfeld" has an episode on personal hygiene that a health teacher tapes and uses the following week in class. The local television station denies permission when asked and states this is a violation of copyright law. Is the TV station correct?
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Response: This is not a copyright infringement and is okay under Fair Use. The television station is wrong. First of all, it doesn’t hold the copyright on Seinfeld. Secondly, Congress holds that any program publicly broadcast may be used within ten school days. Some rights are extended much longer for schools by copyright holders.
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A high school video class produces a student video yearbook that they sell at community events to raise money for equipment for the school. They use well-known popular music clips. The money all goes to the school and the songs are fully listed in the credits. Is this a fair use?
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Response:This is not instructional use. The fact that money is being charged is irrelevant; the problem lies in the use of copyrighted materials for non-instructional purposes.
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A teacher creates his own grading program for use with his students. He transfers to another school and forgets to delete the program from the network. Everyone at his old school copies and use the program. He sues the school. Is he likely to win?
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Response: Probably. The teacher does have the right to make them stop using his work.
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You love the CD cover artwork from your favorite band's latest album. You download a photo of the artwork from the Internet, print it onto transfer paper, and make yourself a T-shirt. Your friends love the T-shirt, and you make several more, selling them at a small profit. Is it copyright infringement?
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Response: Yes. Although you could perhaps argue that the cover of the CD is seldom the reason people buy it, you would be guilty of copyright infringement from the first T-shirt. First, the CD artwork is copied in its entirety, and the copied percentage of the copyrighted work is one of the tests courts use to determine infringement. Second, your T-shirts undercut any profit the copyright holder may gain from marketing legal T-shirts with the same artwork. How do you avoid copyright infringement? In this case, avoid using the artwork at all.
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You are producing a short play you have written. One of the characters has a birthday during the course of the play, and you have written a scene in which five other characters sing "Happy Birthday to You" around a candle-covered birthday cake. Is it copyright infringement?
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Response: Yes. "Happy Birthday to You" is under copyright until 2030. While singing it at private birthday parties is perfectly legal, including the song in a stage play would require that royalties be paid to the copyright holder. When you have a birthday dinner at a restaurant, the employees usually sing an alternate song in order to avoid copyright infringement. How do you avoid copyright infringement? Either contact the copyright holders to request permission, which probably will require a royalty payment, or choose another song that is in the public domain.
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During your stint as a student teacher, you come across a great lesson plan in a library book. It includes sample worksheet pages, and you photocopy them to hand out to your students. The exercises work so well that you continue to photocopy the pages when you land your first teaching job the next year.Is it copyright infringement?
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Response: Probably. In such cases, check the copyright information at the front of the book. A few educational resources allow unlimited photocopying of their pages, but most retain the exclusive right to copy those pages. You may be able to use the first set of photocopies for educational purposes without fear of reprisal, especially if the resource was published very recently. However, using photocopied pages year after year, when the copyright holder could be benefiting from the money your school system would spend buying the book for your students, is copyright infringement. How do you avoid copyright infringement? If the pages are not protected by copyright, use them. If they are, buy the workbooks for your students.
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You are producing a website for your political science class. You find a political cartoon on the Web that is a perfect illustration of the divisive nature of a two-party political system. You capture the cartoon and place it on your website. Is it copyright infringement?
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Response: Yes. Chances are the political cartoonist was paid for his or her work. The news agency or political group that placed the work online probably holds the copyright. When you, in effect, steal the cartoon, you are guilty of copyright infringement. How do you avoid copyright infringement? Try placing a link to the cartoon on your website. If you would prefer to have the cartoon on your site, contact the copyright holder for permission.
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You rent your favorite movie at the local rental store. Because you want to watch it over and over again, you decide to simply make your own copy. Is it copyright infringement?
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Response: Yes, this is infringement. The FBI warning at the beginning of any commercially-produced video or DVD will tell you so. How do you avoid copyright infringement? Look for a previously-viewed copy of your favorite movie to buy. It's much cheaper than a fine for movie piracy. If you plan to show the film in a public forum, you may have to check into buying public performance rights.
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You record a program from the Public Broadcasting System (PBS). You show the film to your psychology class as part of a presentation. Is it copyright infringement?
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Response: Probably not. It depends on whether you show the video soon (within 45 days) after it appeared on PBS. Because your purpose was educational, you are within the realm of fair use. However, if you continue to show the recording in future semesters, you are guilty of copyright infringement. Programs recorded from pay services (cable, satellite dish) are not subject to fair use guidelines. You may record programs for your personal use, but showing them to audiences is against the law. How do you avoid copyright infringement? Use the video once only. Check with PBS for their complete terms and conditions- they may allow more liberal use than standard fair use.
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You wake up one morning with a dream fresh in your mind. You believe the dream would make a great short story. You excitedly relay the entire dream to your roommate, complete with detailed descriptions. Two years later, you hear that your former roommate has published his first short story in a national periodical. When you read the story, you find it familiar; it is your dream. Is it copyright infringement?
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Response: No, because Copyright applies only to work fixed in a tangible medium of expression. In other words, ideas are not copyrighted. Unless you wrote down your dream, you have no recourse. However, you could certainly let your former roommate know what you think. How do you avoid copyright infringement? In this case, you are the one who has been infringed upon. Write down and date any good ideas you have to prevent unscrupulous people from stealing them.
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You cover the governor's visit for your campus newspaper. You take careful notes, making sure to mark the best quotes. Afterward, you snag a few minutes of the governor's time, asking a well-prepared question while reporters from local professional media wait their turn. You are shocked to see the local newspaper's next-day story, which includes the answer the governor gave to YOUR question. While you have written your campus newspaper story, it will not appear in print until next week. Is it copyright infringement?
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Response: No, this is not infringement. While the words a reporter writes are copyrighted (by the publication, not the reporter), the facts within the report are not. The words in this website are copyrighted, but the ideas contained within the site are not. Because the governor answered your question at an open forum, with other reporters around, the quote is not yours alone to use.
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You write a skit, a parody of "Seven Brides for Seven Brothers," for a forum about same-sex marriage. Is it copyright infringement?
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Response: No, this is a fair use. Copyright laws allow parody as a form of free expression. How else could “Saturday Night Live” have lasted all these years?
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I copied an article to use in class and found it very helpful. I’ve decided to give students a copy of the article next semester. Is this still considered fair use?
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Response: Under Fair Use you may make a single copy of the article to use in class. For additional copies, you would need to seek permission from the publisher of the article. The Copyright Clearance Center may be able to help you with this permission.
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I found the perfect cartoon to use in my classroom. Do I need permission to make a single copy?
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Response: No. You may make a single copy of a cartoon to use in class. However, if you were using the cartoon in a paid training session, you would be infringing on a copyright.
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I want to share a story of approximately 2,000 words with my students. May I make multiple copies for distribution in class?
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Response:There is a four-part test for deciding if you can make multiple copies of works for distribution to students: brevity, spontaneity, cumulative effect, and notice.Brevity: You may make multiple copies of a story if it is less than 2,500 words. For an excerpt from a longer work not more than 1,000 words or 10% of the work, whichever is less, but at least 500 words, may be copied. Spontaneity: Copying is inspired by the teacher. Also if the decision to use the work and the time of its use are so close in time that it would be unreasonable to expect a timely reply to a request for permission. Cumulative Effect: Copying is for one course (may be for multiple sections of a course). Not more than one article, short poem, story, essay, or two excerpts from the same author, nor more than 3 from the same collective work or periodical volume during a single class term. Not more than 9 instances of multiple copying for one class per term.Notice: Must include original notice of copyright on each copy.
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I received a sample workbook from a publisher. May I copy the workbook for my students to use in class?
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Response: No, you can’t copy consumables such as workbooks, standardized tests, worksheets, answer forms, etc.
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Kinko’s was held to be infringing copyrights when it photocopied book chapters for sale to students as “coursepacks” for their university classes. What factors were considered in this decision?
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Response: When conducted by Kinko’s, the copying was for commercial purposes, and not educational. Because the purpose was not transformative, this factor weighed against fair use. Most of the works were factual—dealing with history, sociology, and other fields of study—a factor which weighed in favor of fair use. The court analyzed the percentage of each work, finding that copying between five and 25 percent of the original full book was excessive, particularly because the parts copied were critical to the works and each of the chapters could stand alone. The court found a direct effect on the market for the books, because the coursepacks competed directly with the potential sales of the original books as assigned reading for the students.Three of the four factors leaned against fair use. The court specifically refused to rule that all coursepacks are infringements, requiring instead that each item in the “anthology” be subject individually to fair use scrutiny. Notice that the copying was made by a commerc
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A private copy shop created and sold “coursepacks” under circumstances similar to the Kinko’s case. Was the court's decision the same?
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Response: The court held that such photocopying by a commercial copy shop does not constitute fair use. The copy shop here was also found to have acted outside the limits of fair use.Purpose: The fact that the use was commercial and was not transformative caused this factor to weigh against fair use. The court gave particular emphasis to the effect on the market; accordingly, the court provided relatively little analysis of the other three factors. The court noted that licensing or potential licensing opportunities existed for all copied works, and other commercial copy shops routinely requested permission to reproduce copyrighted works. As in the Kinko’s case, this court did not address the question of whether similar activities may be fair use if conducted by a university or nonprofit copy shop. Princeton University Press v. Michigan Document Services, Inc., 99 F.3d 1381 (6th Cir. 1996).
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Commercial producers of educational motion pictures and videos sued a consortium of public school districts, which systematically recorded programs as they were broadcast on public television stations and provided copies of the recordings to member schools. Is this use fair?
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Response: The court had little trouble concluding that the activities were not fair use. Although the court was largely sympathetic with the educational purpose, it also said that convenience should not be a significant factor in the reasonableness of the purpose of the use, thus weighing against fair use. Although the films had educational content, they were commercial products intended for sale to educational institutions, weighing against fair use. The defendant was copying the entire work and retaining copies for as long as ten years, weighing against fair use. The copying directly competed with the plaintiff’s market for selling or licensing copies to the schools, weighing against fair use. Encyclopaedia Britannica Educational Corp. v. Crooks, 542 F.Supp. 1156 (W.D.N.Y. 1982).
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The court ruled that photocopying of individual journal articles by a Texaco scientist for his professional research needs was not fair use. What factors were considered in this case?
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Response: While a research purpose generally favors fair use, Texaco’s research was conducted for commercial gain, and the use essentially served to replace additional subscriptions. This factor therefore weighed against fair use. According to the court, the Copyright Clearance Center provided a practical method for paying fees and securing permissions, so the copying directly undercut the ability to pursue the market for licensing through the CCC. Despite an impassioned dissent from one judge who argued for the realistic needs of researchers, the court found three of the four factors weighing against fair use in the corporate context. The court amended its decision to clarify that it applies only to “institutional, systematic” copying, and that the ruling does not reach isolated copying by independent researchers. American Geophysical Union v. Texaco Inc., 60 F.3d 913 (2d Cir. 1994).
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Sega, was a major manufacturer of video game consoles. Another company, Accolade, in order to gain access to the functional aspects of Sega’s game code, deciphered, or “reverse engineered,” the object code into source code. In order to do so, Accolade had to copy both the object and source codes. Accolade used the knowledge it gained from the source code to write new code for games that would be compatible with the Sega system. Sega claimed that the copying and reverse engineering of its code was an infringement. Is Sega correct?
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Response: Accolade successfully argued that it was within fair use. The court noted that although copying for commercial purposes may lead to a presumption against fair use,this presumption can be overcome by the characteristics of the use. This case revealed the importance of fair use for the copying of computer code in order to gain access to the functional aspects of a computer program that are not protected by copyright. This case opened important opportunities for researchers to use copyrighted works, particularly for objectives that would not compete with the original work and would have productive or constructive outcomes. Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1993).
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A researcher at a nonprofit foundation selected quotations from an unpublished literary manuscript of historical and cultural interest, and included the quotations in an analytical presentation that she delivered to a scholarly society. The use was scholarly and transformative, providing criticism and comment on the original manuscript, thus favoring fair use. The unpublished nature of the work weighed against fair use, though this factor was not determinative. The amount used was consistent with the purpose of scholarly criticism and commentary, and there was no evidence of taking “the heart of the work,” thus weighing in favor of fair use. There was no adverse financial impact. Would the courts find in favor of the researcher?
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Response: This was deemed a fair use. Sundeman v. The Seajay Society, Inc., 142 F.3d 194 (4th Cir. 1998). This case is remarkable for having gone to court at all; isolated scholarly uses of materials are seldom the subject of litigation. It is also a reminder that reasonable, limited, scholarly uses of materials are most likely to be fair use. The court ruled that the researcher was acting within fair use. This case is important for many reasons. It affirms that customary quoting of materials,consistent with scholarly aims, is often within fair use. Many courts have construed fair use narrowly when applied to unpublished materials, but this case demonstrates that under proper circumstances, copying and quoting from unpublished works can be fair use.
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Here are some details about a copyright court case. In 1973, the plaintiff wrote a book based on interviews with women about their own pregnancies and abortions. The defendant wrote his own book on the same subject and sought permission to use lengthy excerpts from the plaintiff’s work. The plaintiff refused permission, and the defendant proceeded to publish his work with the un-permitted excerpts. Who is in the right here?
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Response: Although defendant’s book was published by a commercial press with the possibility of monetary success, the main purpose of the book was to educate the public about abortion and about the author’s views. Overall, this factor weighed in favor of fair use. Though the plaintiff’s book contained “elements of creative journalistic effort,” it was said to be largely factual, also weighing in favor of fair use. This case affirms that quotations in a subsequent work may be within fair use, even when they are lengthy. Implicit throughout the case is the fact that the plaintiff was unwilling to permit quotations in a book that argued an opposing view of abortion; thus fair use became the only effective means for the second author to build meaningfully on the scholarly work of others. Maxtone-Graham v. Burtchaell, 803 F.2d 1253 (2d Cir. 1986), cert. denied, 481 U.S. 1059 (1987).
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An author, Spurlock, published a book-form biography and illustrated retrospective of movie monster artist Basil Gogos. Spurlock’s book contained 160 reprints of Gogos’s work, including 24 reproductions of Gogos’s artwork taken from Warren’s copyrighted movie monster magazine covers. Is this a fair use?
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Response: Spurlock’s use of the magazine cover art was deemed to be fair use, based on its reasoning that the purpose and amount factors weighed strongly in Spurlock’s favor. The court considered Spurlock’s presentation of the images within an artist’s biography and career retrospective to be a transformative use, because the artwork was used for an entirely different purpose than the original purpose of cover art helping to sell magazines. The commercial nature of Spurlock’s book did not overcome the transformative purpose of the use, nor did Spurlock evidence bad faith by publishing the reproductions after unsuccessfully seeking Warren’s permission. Central to the court’s reasoning was the transformative nature of the use of the images in a biographical compilation. The court considered Spurlock’s purpose to weigh in favor of fair use even though the images were reproduced in a commercial product. Also significant was the court’s determination that the amount of the work used was based on an entire magazin
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Dorling Kindersley (DK) published a comprehensive “coffee table” book documenting the thirty-year history of the famous rock band, the Grateful Dead. The book included seven copies of old concert posters in which the plaintiff, Bill Graham Archives (BGA), owned the copyrights.The copied works (which accounted for “less than one-fifth of one percent of the book”) were greatly reduced in size and were displayed in biographical fashion to commemorate events in the Grateful Dead’s history. The copied works were accompanied by numerous other contextual devices, such as a timeline and descriptions of events, pictures of the band and its fans, and other mementos of the time. Did BGA's claim of copyright violations hold water in court?
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Response: The court found that DK’s use of the posters was within the limits of fair use. Thus, using copied artworks in a reduced size can be fair use so long as the use is transformative and not for purposes of exploiting the creative nature of the copied works. Even when the full work is reproduced, it can still be fair use if the amount used was necessary to further the purpose of the fair use. Furthermore, the copyright holder cannot prevent fair uses simply by creating new transformative markets for the copied works.
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Nuñez v. Caribbean International News, Corp., 235 F.3d 18 (1st Cir. 2000). A newspaper published three suggestive and controversial photographs from the portfolio of a beauty pageant winner. Purpose: The newspaper is a commercial enterprise and the use of the photos certainly boosted sales of the paper. However, the paper’s use of the photos was transformative; the original purpose of the photos may have been promotional, but the newspaper used them to inform the public about news events. The court ruled that this factor slightly favored fair use because of the informative use, the good faith of the newspaper in obtaining the photos, and the difficulty in reporting the news without the photos. Nature: The court did not characterize the photos as either factual or creative, leaning toward a neutral conclusion on this factor. In addition, the court emphasized that the reproduction did not threaten the right of first publication, and that the photos already had been shown on the television news. Amount: The ent
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Response: The court emphasized that generally reproduction by newspapers of professional photographs is infringement. However, if the photo itself is newsworthy, the photo is acquired in good faith, and the photo has already been disseminated, publication may well be fair use.
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NXIVM Corp. v. The Ross Institute, 364 F.3d 471 (2d Cir. 2004). NXIVM produced executive business training seminars that generated considerable controversy. NXIVM brought a copyright infringement action against website operators for posting excerpts from NXIVM’s training manuals. The training manuals were unpublished in the sense that they were not available to the general public.Purpose: The purpose of the use was deemed “transformative,” because it was to criticize NXIVM’s seminars and manual. Because the use was transformative, the first factor favored fair use, even in light of the bad faith in which the manuals were obtained.Nature: Because both sides conceded that the work was unpublished, the second factor weighed against fair use.Amount: The amount used was only as necessary to further the transformative purpose. Also, Ross did not take the “heart of the work,” because there was no specific portion that constituted the heart of NXIVM’s manual. Thus, the third factor weighed in favor of fair use. Ef
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Response: This case demonstrates that even posting materials on publicly accessible websites can be within fair use, particularly if the use is in the context of critical discussion, and only portions are copied.
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Los Angeles Times v. Free Republic, 54 U.S.P.Q.2D 1453 (C.D. Cal. 2000).A bulletin board website allowed members to post full articles from newspapers in order to generate awareness and discussion of various subjects. Access to the site was unrestricted. The defendant was a for-profit corporation,but was in the process of seeking nonprofit tax status and did not charge for access to materials on its website.Purpose: The articles were copied directly from the news sources and were not “transformative.” The judge was also not persuaded that a link to the news source would have been insufficient. While the court generally favored the claim of a “nonprofit” use, the court still found that posting the articles was drawing readers away from the commercial websites where the articles originated and served the same purpose as the original articles. This factor therefore weighed against fair use.Nature: The articles were predominately factual, tipping this factor in favor of fair use.Amount: The website included the
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Response: The bulletin board’s use of the newspaper articles was deemed not to be fair use. This case offers a bit of caution about the difference between allowing public access to materials, as opposed to restricting access. Granting public access to entire works is much more difficult to justify as fair use.
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Higgins v. Detroit Educational Television Foundation, 4 F.Supp. 2d 701 (E.D. Mich. 1998).Higgins was a composer and copyright owner of a short song. Forty-five seconds of it were used as background music during the introductory and ending sequences of a program about drugs and youth that was broadcast on a PBS affiliate station in Michigan. The broadcaster also sold videotape copies of the program to educational institutions “for educational use only.” The court ruled that the station acted within fair use.Purpose: The court noted that the defendant sold the tapes for educational purposes and did not earn a profit. In addition, the use of the music faintly in the background was “transformative,” as it was used for a completely different purpose, thus weighing this factor in favor of fair use.Nature: As a musical composition, the court found the work to be creative, thus tipping this factor against fair use (though not heavily, since the work was published).Amount: The amount used was neither “qualitatively”
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Response: This decision suggests that use of clips of music and other creative works in nonprofit research and education can be lawful, especially when integrated into a project with limited circulation.
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Tiffany Design, Inc. v. Reno-Tahoe Specialty, Inc., 55 F.Supp.2d 1113 (D. Nev. 1999).Tiffany Design created a digitally altered photographic image of the Las Vegas strip. Reno-Tahoe Specialty produced a composite image of Las Vegas and included images of at least six buildings scanned and inserted from Tiffany’s work.Purpose: The use of the images and the developments of the composite picture were to create a commercial product, weighing against fair use.Nature: The image copied was a computer-enhanced photograph, with numerous original elements of lighting, perspective, shading, and subject orientation. The creative nature of the original work tipped this factor against fair use.Amount: The entire image was scanned, although only portions were used.Effect: The court found that incorporation of components of the scanned image could harm the commercial demand for Tiffany’s depictions of the Las Vegas Strip, causing this factor to weigh against fair use.
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Response:The court ruled that the defendants’ use of images did not constitute fair use. Thus, scanning and manipulating a highly creative work may be beyond the limits of fair use, especially if the ultimate purpose is to include elements of the original work in a commercial product that might compete with the existing market for the original.
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KCPT is a public television station in Kansas City, Missouri, which offers distance learning programs. The station has a written copyright policy and televises programs regarding U.S. copyright law to educate its viewers. In addition to using 4-way full-motion video to broadcast class sessions, the station also uses Moodle to distribute course content to students enrolled in online classes. A statement appears on the online course's home page regarding the presence of copyrighted materials on the Web site. The station restricts the transmission of copyrighted materials to students officially enrolled in a course, according to TEACH Act institutional requirements. Is it legal for KCPT to use copyrighted materials in its distance learning programs according to the TEACH Act?
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Response: Because a television station (even a PBS station) does not meet the requirements as an accredited nonprofit educational institution, KCPT would not be allowed to use copyrighted material on the basis of the TEACH Act.
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North Kansas City High School is part of KC REACHE, a consortium of Kansas City community colleges and universities, which offers distance learning programs. Information Technology Services, located at the high school, is responsible for working with KC REACHE teaching faculty to publish their course content online using Moodle software. Access to course materials is restricted to students enrolled in the class. The instructor finds several short video clips in .avi format on a public Web site that are candidates for supplementary course materials. ITS Webtechs place copies of these video clips in Eagle Online for the instructor each semester she teaches the course. The instructor also teaches the same course in a face-to-face classroom environment. For this course, she puts a copy of a CD-ROM containing the video clips on reserve at the library that students may check out for in library use only.May ITS and the instructor do this under the TEACH Act?
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Response: No. The TEACH Act does not cover supplementary course materials, but instead those course materials that are a part of mediated instruction. (It would be much simpler for the Webtechs to just link to the materials that are on the Web.) If the video clips are used as a part of mediated instruction, then other provisions of the TEACH Act could be used to determine whether or not the video clips or portions of the video clips could be copied into the Eagle Online course (depending on the nature of the content). In addition, ITS would need to convert them to streaming format in order to prevent copying and distribution of the video clips outside of class. The TEACH Act is only related to transmitting copyrighted material (as in an online course) and would not be applicable to the CD-ROM put on reserve at the library for the instructor's face-to-face course.
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The Mulvane Museum offers after-school art programs for youth. The children created art projects to celebrate the 50th anniversary of Brown v. Board of Education. A sociology professor at Washburn University created a multimedia presentation into which he inserted images of the children's art. The professor teaches an online course using Moodle software and wants to publish his PowerPoint presentation to the course's Web site so the university students enrolled in his online class can view the artwork as they study the Brown v. Board of Education court case and discuss the role of schools as laboratories for social change. The professor has signed release forms from the parents of the children giving him permission to use the children's artwork. He knows that Washburn University meets TEACH Act institutional requirements. Is it legal for the professor to do this under the TEACH Act?
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Response: Yes. The fact that he has signed release forms from the parents makes the TEACH Act irrelevant. Assuming the scans of the artwork were made by him (and not merely photos from the local newspaper) there are no other permissions he needs to seek to incorporate the artwork into the multimedia presentation. Because the presentation is related to studying schools as laboratories for social change, it is directly related and of material assistance to the teaching content of the transmission.
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Dr. Smithbourne teaches a Human Behavior course in Social Work at an accredited university. The course is an online course accessed by enrolled students after they authenticate themselves with a user name and password. Dr. Smithbourne starts a bulletin board discussion of Bowen's Theory and uploads a streaming audio recitation of the first of Edwin H. Friedman's Fables "The Bridge" in its entirety. She asks the students to post their responses to three questions regarding this fable on the bulletin board.Does Dr. Smithbourne qualify to do this under the TEACH Act?
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Response: Yes. The instructor is allowed to post a "performance" of a non-dramatic literary work in its entirety. The instructor has also made certain that performance is in streaming audio format, so it meets the reasonable technological measures to prevent copying and distribution.
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A high school psychology teacher, Mr. Waitley, has decided to begin a discussion on the study of human behavior by asking students to listen to streaming audio clips of songs on his public Web site. The instructional media staff at the high school uses a CD owned by Mr. Waitley to encode "I Am a Rock" by Simon and Garfunkel in streaming audio REAL format. Mr. Waitley places the REAL Audio file on his public Web site and directs his students to his Web site. Does Mr. Waitley qualify to do this under the TEACH Act?
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Response:No. Because these clips are on his public Web site, he is not covered by the TEACH Act. If the instructor placed the streaming audio clips within a password-protected course, accessible only to his students, he would be covered by the TEACH Act.
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An Advanced Placement American History class in high school is available to students in an online password-protected online course environment. The teacher, Mrs. Maine, wants to set the stage for the environment in Germany prior to World War II. Mrs. Maine owns a videotape of Swing Kids, a movie depicting the lives of young adults prior to World War II. She asks the instructional media staff to digitize a 10-minute clip of Swing Kids and then places it in her online course. Does Mrs. Maine qualify to do this under the TEACH Act?
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Response:Yes. According to the TEACH Act, an instructor can used a "reasonable and limited portion" of a dramatic performance (for example, a film). Assuming that no digital copy (DVD) of the film is available, a portion can be digitized and uploaded into the course. However, the clip must be formatted as streaming audio to prevent copying and distribution.
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An instructor for an online geography course (using Eagle Online) is covering the topic of volcanoes and wants to digitize a full 30-minute NOVA program titled, "Volcanoes Deadly Warning." The program was recorded off the local PBS affiliate the week before on VHS and he wants to make a REAL media streaming file of this program to give his students more information on volcanoes and signals that can warn people when a volcano is going to erupt. No DVD of the NOVA program exists. May he do this under the TEACH act?
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Response: Yes. First, the videotape has been obtained legally according to the pbs.org off-air taping rights for classroom use. Secondly, there is no DVD of the program, making it OK to digitize the video. Finally, since this is a documentary, it is non-dramatic and so the full videotape could be digitized and placed inside the Eagle Online course in streaming format.
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An online instructor wants to incorporate e-pack material into her course by copying the material from the sample CD-ROM given to her to review from the publisher of the e-pack. May she do so under the TEACH act?
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Response: No. The sample material is not for distribution because it is marketed for instructional use. Copying the material would impact the sale of the publisher's e-pack.
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A professor copies one article from a periodical for distribution to the class. Is this fair use?
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Response: Yes. Distribution of multiple copies for classroom use is a fair use.
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A professor has posted his class notes on a Web page available to the public. He wants to scan an article from a copyrighted journal and add it to his Web page. Is this a fair use?
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Response:It depends. If access to his Web page is restricted, then this is a fair use. If access is not limited, then this use is probably not a fair use. No exclusively educational purpose can be guaranteed by putting the article on the Web, and such conduct would arguably violate the copyright holder's right of public distribution.
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A professor copies excerpts of documents, including copyrighted text books and journals, from various sources. The professor plans to distribute the materials to his class as a coursepack. Is the preparation of a coursepack for students in the class a fair use?
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Response: One must do the fair use analysis. If the use of each excerpt complies with the fair use criteria, then use of the coursepack is a fair use. The inclusion of the excerpts in a coursepack will not change a fair use to an infringing use.
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A professor copies excerpts of documents, including copyrighted text books and journals, from various sources and prepares a digital or electronic coursepack. Is the preparation of an electronic coursepack for students in the class a fair use?
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Response: If the professor anticipates distributing the coursepack via the World Wide Web, e-mail or compact disk, then a fair use analysis is required.
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A professor wishes to use a textbook he considers to be too expensive. He makes copies of the book for the class.Is this a fair use?
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Response: No. Although the use is educational, the professor is using the entire work, and by providing copies of the entire book to his students, he has affected the market. This conduct clearly interferes with the marketing monopoly of the copyright owner. The professor should place a copy on reserve or require the students to purchase the book.
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A professor wishes to use a textbook he considers to be too expensive. If the professor decides to make three copies of the book and place them on reserve in the library for the class, is this a fair use?
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Response: No. This conduct still interferes with the marketing monopoly of the copyright owner. The professor may place a copy of the textbook, not the copies, on reserve.
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A teacher copies a Shakespearian play from a copyrighted anthology.Is this a fair use?
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Response: The play is in the public domain and not subject to copyright protection and, therefore, one need not do a fair use analysis. Other public domain materials include U.S. government documents, works whose copyright has expired and unsealed court records.
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May I freely copy, print, and email things I find on the Web?
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Response: Absence of a copyright notice does not mean that it is okay to copy something. Under U. S. copyright law, for example, any original work fixed in a tangible medium is automatically protected by copyright regardless of whether any copyright formalities are done. Under the Berne Convention, the absence of a copyright notice does not mean that a work is not protected by copyright. One way to solve the problem is to always obtain the permission of the copyright owner or to confine one's copying to items that are in the public domain. The fair use criterion is difficult to apply here, since anyone has access to a web page and copying can not be controlled, unless access to a web page is restricted to only those students enrolled in a course. If you see something on the Web and are tempted to copy it, why not just put a link to it on your page?
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May I scan any image I wish and post it on my web site?
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Response: The short answer is “no.” The safest course of action is to obtain permission from the copyright owner before posting a scanned image on your web site. Even photographs that you have personally taken can cause trouble. If it is a photograph of someone else, it is safest if you obtain a “model release” from that person releasing you from liability for use of the photograph.
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May I freely link to the web sites of others?
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Response: Generally, HREF links are permissible. However, the use of IMG links which retrieve images from another's web page into your page or frame links which load HTML text from another's web page into a frame on your own page may involve violations of copyright and should be avoided.
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A faculty member receives PowerPoint slideshow distributed by book publisher. She wants to delete all publisher logos and references and modify PowerPoint slideshow extensively while retaining most images and text and adding substantial original material. Is this legal?
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Response: The material's publisher's licensing terms most likely prohibit most if not all of these alterations. The faculty member probably "agreed" to these terms when the materials were purchased.
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A student borrows portions of several copyright works to create a parody of movie trailers (using portions of current movies and popular music) to complete a classroom assignment. Does this use qualify for fair use? May the student legally use the end product in their portfolio? Can they post to YouTube?
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Response:A parody is a work that ridicules another, usually well-known work, by imitating it in a comic way. Judges understand that, by its nature, parody demands some taking from the original work being parodied. Unlike other forms of fair use, a fairly extensive use of the original work is permitted in a parody in order to “conjure up” the original. The student can use the end product in a portfolio and can post to YouTube.
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May a faculty member use an off-air recording of important historical event e.g., Challenger disaster, Obama Inauguration) even if same media is available for rent (can be licensed) commercially?
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Response: The "Guidelines for Off-Air Recording of Broadcast Programming for Educational Use" should be followed here.
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May ancillary materials provided by textbook publisher be used in class whether or not the accompanying textbook is adopted? Wouldn’t fair use enable instructor to use portions of materials without infringing on Copyright? What if use is online in a learning management system?
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Response: Use of publisher materials like this is generally covered by licensing agreements, which you have probably agreed to at some point, perhaps by simply opening the package. Check these carefully to see what uses are covered and allowed.
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A faculty member wants to show film to student film club, discussion to follow. Showing supports college diversity initiative. Distributor lists $250 rental (license) fee. College library owns film. Can library copy be used legally for club showing? Covered under fair use? May a faculty member legally show the same complete film in face-to-face classroom based on fair use?
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Response:The performance of or showing of films for public viewing (whether admission is charged or not) or even by University-affiliated clubs and organizations does not fall under the fair use exception. In these cases, you will need to seek permission from the copyright holder by acquiring a public performance rights (PPR) license in order to show the films. The showing of the same film in a f2f classroom may be fine as long as all criteria for the “Face to Face Teaching Exemption” are met.
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A faculty member finds table of statistical formulas on web, wants to use the table in an online course. Is reproduction legal based on fair use? faculty member locates several images (on web) that she wants to use online in course (housed in LMS). The images have no copyright notice. Some from Flickr, some from Google images. May she use the images without seeking permission from copyright owners?
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Response: The absence of copyright notice does not mean that the material is not protected by copyright. However, this type of information may not be something that can ever be copyrightable. Information alone without a minimum of original creativity cannot be protected by copyright. Copyright protection may, however, extend to substantial literary expression—a description, explanation, or illustration, for example—that accompanies a recipe or formula or to a combination of recipes, as in a cookbook. Plain tables or formulas are unlikely to include such expression
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A faculty member’s son plays in a band. They play popular music (Beatles, etc.) and have recorded a version of John Lennon’s “Imagine.” faculty member has permission from son to use recording in a PowerPoint presentation used at “college nights” to promote college. Legal use?
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Response: The band should have secured a mechanical license to record their own version of someone else's previously recorded and distributed music. Usually, music users obtain these licenses through a music publisher or agent.
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A faculty member teaches programming, creates code for class during office hours. She wants to share on Internet via http://code.google.com. Who owns the code? College or faculty member? Instructor wants to use MIT open source license but wants assurance she has legal right to do so.
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Response: The faculty member should look carefully at her institution's guidelines on intellectual property matters and "work for hire" guidelines. Under the Federal Copyright Act, 17 USC §1.01, work-for-hire is (1) work prepared by an employee within the scope of employment, or (2) work specifically ordered or commissioned and prepared per a written contract [by an employee or non-employee], such as an instructional text, test and test answers. Under a work-for-hire contract, the parties decide who is the owner of the copyright. In spite of this, general practice in the United States usually favors the faculty member's ownership, but faculty members are urged to seek clarification sooner rather than later.
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May a faculty member retain work by one of her students and use it as an example (good or bad) in subsequent semesters without specific permission from the student who created the work?
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Response: As a rule, students own all the rights of copyright in and to the work they create as part of their education, whether generally or within the scope of a particular class. Any use of that work must be with the express and generally speaking written permission of the student. This is because under United States copyright law the creator of any copyrightable work owns all rights to that work unless they are bona fide employees or have entered into a valid, written and signed agreement transferring those rights to a third party. To obtain those rights, the school would have to have a valid, written agreement.
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May a faculty member use an editorial cartoon from a local newspaper to generate discussion in an online course without seeking/obtaining permission from the publisher/copyright owner?
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Response: If the image you wish to digitize is available online, link to it so that students may view it online. If it's not, you can digitize and use it, but limit access to all images except low-resolution thumbnails to students enrolled in the class. Terminate student access to all such images at the end of the semester.
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May a professor make a copy of an article from a copyrighted periodical held by the library for her files to use later?
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Response: As long as the professor uses the article for her personal files and reference this is considered fair use.
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The library has a book that is out of print and unavailable for purchase. The book is an important one in its field. May the professor copy the book for her files? May the professor then place the book on reserve in the library?
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Response: Yes, both cases can be considered fair use.
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May a professor copy an article from a periodical for distribution to the class.
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Response: Yes. Distribution of multiple copies for classroom use is a fair use.
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May a professor make three copies of a textbook and place them on reserve in the library for class use?
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Response: No. The professor may place a copy of the textbook, not the copies, on reserve.
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May a professor make a copy of a videotape held by the library for a colleague to show in her class.
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Response: No. The professor may lend her personal copy of the videotape to a colleague for this purpose.
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May a professor add a book chapter to the library's electronic reserve system.
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Response: Yes. The chapter may be added to the system since the library limits access to students enrolled in the class.
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May the same professor who will be teaching the same course for three successive semesters keep the chapter on reserve for the three semesters?
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Response: If the work is out of print and not readily available then the chapter may be on reserve for successive semesters. However, if the book is currently in print and not held by the library, then it would be better to either obtain permission for use the chapter or request that the library purchase a copy of the work.
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I copied an article to use in class and found it very helpful. I’ve decided to give students a copy of the article next semester. Is this still considered fair use?
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Response:Under Fair Use you may make a single copy of the article to use in class. For additional copies, you would need to seek permission from the publisher of the article. The Copyright Clearance Center may be able to help you with this permission.
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I found the perfect cartoon to use in my classroom. Do I need permission to make a single copy?
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Response:No. you may make a single copy of a cartoon to use in class. However, if you were using the cartoon in a paid training session, you would be infringing on a copyright.
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I want to share a story of approximately 2,000 words with my students. May I make multiple copies for distribution in class?
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Response:There is a four-part test for deciding if you can make multiple copies of works for distribution to students: brevity, spontaneity, cumulative effect, and notice. Brevity: You may make multiple copies of a story if it is less than 2,500 words. For an excerpt from a longer work not more than 1,000 words or 10% of the work, whichever is less, but at least 500 words, may be copied. Spontaneity: Copying is inspired by the teacher. Also if the decision to use the work and the time of its use are so close in time that it would be unreasonable to expect a timely reply to a request for permission. Cumulative Effect: Copying is for one course (may be for multiple sections of a course). Not more than one article, short poem, story, essay, or two excerpts from the same author, nor more than 3 from the same collective work or periodical volume during a single class term. Not more than 9 instances of multiple copying for one class per term. Notice: Must include original notice of copyright on each copy.
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I received a sample workbook from a publisher. May I copy the workbook for my students to use in class?
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Response: No, you can’t copy consumables such as workbooks, standardized tests, worksheets, answer forms, etc.
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John, an exempt employee at Aristotle University, is a talented programmer who has been working for the university for over seven years. He holds a master’s degree in computer science and on occasion teaches a distance education course in computer science for the Distance Education department. John’s direct supervisor, Dr. Dennis Whitman, recently assigned John to work on development of a computer application that would more efficiently and effectively manage the tracking of Family Medical Leave applications for the Human Resource department. FMLA is a complex law that requires careful analysis of the qualification of an applicant for the benefit in order to avoid unnecessary expense and/or serious and costly liability. To work correctly, the application would need to weigh multiple variables, including exemptions. John was told he would be working with HR over a period of approximately six months about 25 hours per week on the FMLA tracking project. Dr. Whitman reassigned other projects John had been workin
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Response: Works for hire are materials created by employees as part of the normal scope of their employment. If you create something as a work for hire then normally your employer becomes the "author" of the work created. The life of a copyright from a work for hire is different from that of the normal copyright and last 95 years from publication/presentation of the work or 120 years from its creation, whichever period is shorter.
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Professor Readsalot currently serves as a member of the English Department’s curriculum committee. Professor Readsalot is enlisted by his colleagues and his Department Chair, Dr. Know, to take the results of the discussion of the committee and condense them into a position paper on behalf of the department. Proud of his work, Professor Readsalot arranges to sell the paper through an academic publisher, claiming copyright to the work. Can Professor Readsalot claim ownership of his writing?
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Response: A“work made for hire” is defined in section 101 of the Copyright Act as: A work prepared by an employee within the scope of his or her employment; or A work specially ordered or commissioned for use as a contribution to a collective work, as part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer materials for a test, as an atlas, or as a sound recording, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.
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A faculty member has authored learning materials for a college class that he teaches, and wishes to license these using Creative Commons license (http://www.creativecommons.org). Assuming that these materials are considered “scholarly work”, the college owns the intellectual property. Does the faculty member have the right to assign a Creative Commons license to these materials, or is any assignment of CC license by the faculty member legally invalid?
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Response: The college's interest in preserving ownership of IP centers on the marketability and potential profit-sharing inherent in work-for-hire products. While CC licensing does not prevent for-profit marketing of IP by the owner, it may be seen as a detriment to the marketability of CC licensed content (i.e. why would I pay for this when I can get it for free?). The reality is that the majority of faculty-authored materials will either not be marketed or not be profitable. The college could grant academic departments the right to allow faculty to license faculty-authored content under a Creative Commons license. This approach eliminates any need for the expenditure of UVU resources for the oversight of CC licensing, and makes the practice simple and easy for faculty and departments. The college could provide a clear and accessible avenue by which faculty authors may make a request to license their college-owned materials under a CC license.
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An academic department has partnered with Distance Education to produce a fully online course with electronic text, and original graphics, video, and sound. Because these course materials were created using college faculty and Distance Education staff, the IP is owned by the college as stated in their policies. The academic department would like to publish the online course materials as opencourseware on their departmental web site using the Creative Commons license required by the OpenCourseWare Consortium (http://www.ocwconsortium.org).Does the academic department have the right to publish the online course materials as opencourseware? If so, is it necessary for the academic department to request permission or inform the creator(s) and administrator(s) involved in development?
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Response: A strong case for the college to broadly support open courseware can be made. Possible responses include the following: the Chancellor’s Office could make a broad declaration supporting open courseware, and author a new policy governing faculty publication of college-owned IP as OCW. This approach would simplify the process, and encourage faculty and departments to engage in the open courseware movement.
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Two faculty members (faculty “A” and faculty “B”) collaborated with Engineering on the creation of a series of video lectures to be used as supplementary material in a course. faculty “A” would like to publish the videos as opencourseware under a Creative Commons license. Faculty “B” objects to such publishing of the videos. Is the first faculty member able to publish the content as opencourseware? Is the second faculty member able to prevent such publishing? How is the matter complicated if a department materially invested in the project (in this hypothetical, Studios and Engineering) wishes to either support or contest OCW publishing?
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Response: Though it is clear under Policy 136 8 that “the Creator(s) shall obtain from all individuals who may be working on its development, a written waiver form assigning ownership and agreeing to non-disclosure”, the wording of the policy refers only to commercialization of UVU-owned Intellectual Property. If UVU decides to support opencourseware, it needs to include opencourseware in Policy 136, or author a separate policy for opencourseware. The dissemination of such a policy could defuse tensions or disagreements before they occur. Possible solutions include the following: If there is an application process for the publishing OCW, multiple authorship can be addressed inline.If there is no application process for publishing OCW, the IP policy needs to provide faculty co-authors with a process by which they might file objections to OCW publishing.
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You have found some good information at a government web site. May you copy the information and use it liberally in the classroom?
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Response: Information at a government web site is in public domain and considered common property. Therefore, you may distribute the information without fear of copyright infringement.
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A student has been assigned to make a personal Web page for class. The student chooses baseball as a topic but doesn't have any pictures. They do a google images search and find some pictures to use. There is no clear statement anywhere saying they are copyrighted. Can the student go ahead and use these pictures?
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Response: One should always first try to contact the site owner where the picture is housed (after clicking on it from Google) and contact that person to get permission. Also check if you can alter the image if you desire to do so. That said though, students doing work for a class are actually covered by the Fair Use act: Students may: Use digital images in an academic course assignment such as a term paper or thesis, or in fulfillment of degree requirements;publicly display their academic work incorporating digital images in courses for which they are registered and during formal critiques at a nonprofit educational institution; retain their academic work in their personal portfolios for later uses such as graduate school and employment applications.
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Is it always ok to link to articles from licensed databases?
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Response: Almost always. Here's the exception- Harvard Business Publishing has a strict copyright policy that prohibits using material from any of their publications (articles, case studies) as assigned course material. This ban includes articles from the Harvard Business Review. Harvard Business Publishing also restricts linking to their articles through Eagle Online. Should you wish to do any of the above, you will need to contact Harvard Business Publishing for rates and permission. These copyright restrictions are included at the end of all HBR articles; please refer to their copyright statement for more information (included below). A good rule of thumb to follow before linking to or requiring the reading of any journal article is to check each individual publisher's copyright statement, usually available at the end of each journal article.
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What are the guidelines for the display of images in a classroom?
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Response: The Copyright Act allows for display of images in the classroom without infringing on copyright as long as each image source is attributed. Should the instructor wish to post the PowerPoint to Eagle Online or use the PowerPoint semester after semester, the instructor needs to check the copyright restrictions of each image. Verify that the images may be legally downloaded, used for non-profit, educational purposes, and that use of the image fits under the fair use doctrine of the Copyright Act. Written permission from the copyright holder for repeated showings of the image may need to be obtained.
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Curious if you can legally share video clips or podcasts with your students through Eagle Online or other systems?
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Response: The Technology, Education and Copyright Harmonization Act (TEACH Act) allows for instructors to electronically share "reasonable and limited portions" of almost any type of work-including video and audio clips. This Act does not authorize an electronic media free-for-all, however. All media shared must be legally-made copies. Instructors and students must be made aware of and held responsible to abide by all copyright restrictions on the digital files. These restrictions include only showing materials directly related to class content, not retaining copies of the materials after the course has ended, and avoiding unauthorized distribution of the materials. Remember, digital resources have the same copyright protection as do tangible, physical resources.
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What amount or percentage of a copyrighted work can I safely use without seeking permission?
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Response: Educational fair use of a copyrighted work takes into account the brevity of the portion of the work copied and shared. The Library of Congress comments that "there's no magic formula" for determining what is the fairest amount of a work that can be used without obtaining copyright permission 2. Nowhere in the 326 page United States Copyright Act of 1976 is there mention of a right or wrong percentage. Some higher education Web sites recommend numbers between 5% and 10% of a work. In short, there is no definitive answer. You in good faith need to decide if the amount of the portion used in relation to the copyrighted work as a whole is small enough to be permissibly and fairly used without obtaining copyright permission.
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An author copied more than half of an unpublished manuscript to prove that someone was involved in the overthrow of the Iranian government. Is this a fair use?
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Response: Not a fair use. Important factors: A substantial portion was taken (half of the work) and the work had not yet been published. (Love v. Kwitny, 772 F. Supp. 1367 (S.D. N.Y. 1989).)
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A biographer of Richard Wright quoted from six unpublished letters and ten unpublished journal entries by Wright. Is this a fair use?
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Response: A fair use. Important factors: No more than 1% of Wright's unpublished letters were copied and the purpose was informational. (Wright v. Warner Books, Inc., 953 F.2d 731 (2d Cir. 1991).)
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A biographer paraphrased large portions of unpublished letters written by the famed author J.D. Salinger. Although people could read these letters at a university library, Salinger had never authorized their reproduction. In other words, the first time that the general public would see these letters was in their paraphrased form in the biography. Is this a fair use?
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Response: Not a fair use. Salinger successfully sued to prevent publication. The letters were unpublished and were the "backbone" of the biography--so much so that without the letters the resulting biography was unsuccessful. In other words, the letters may have been taken more as a means of capitalizing on the interest in Salinger than in providing a critical study of the author. (Salinger v. Random House, 811 F.2d 90 (2d Cir. 1987).)
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The Nation magazine published excerpts from ex-President Gerald Ford's unpublished memoirs. The publication in The Nation was made several weeks prior to the date of serialization of Mr. Ford's book in another magazine. Is this a fair use?
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Response: Not a fair use. Important factors: The Nation's copying seriously damaged the marketability of Mr. Ford 's serialization rights. (Harper & Row v. Nation Enters., 471 U.S. 539 (1985).)
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A company published a book entitled Welcome to Twin Peaks: A Complete Guide to Who's Who and What's What, containing direct quotations and paraphrases from the television show "Twin Peaks" as well as detailed descriptions of plot, character and setting. Is this a fair use?
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Response: Not a fair use. Important factors: The amount of the material taken was substantial and the publication adversely affected the potential market for authorized books about the program. (Twin Peaks v. Publications Int'l, Ltd. 996 F.2d 1366 (2d Cir. 1993).)
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A company published a book of trivia questions about the events and characters of the "Seinfeld" television series. The book included questions based upon events and characters in 84 "Seinfeld" episodes and used actual dialogue from the show in 41 of the book's questions. Is this a fair use?
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Response: Not a fair use. Important factors: As in the "Twin Peaks" case, the book affected the owner's right to make derivative "Seinfeld" works such as trivia books. ( Castle Rock Entertainment, Inc. v. Carol Publ. Group, 150 F.3d 132 (2d Cir. 1998).)
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Publisher Larry Flynt made disparaging statements about the Reverend Jerry Falwell on one page of Hustler magazine. Rev. Falwell made several hundred thousand copies of the page and distributed them as part of a fund-raising effort. Is this a fair use?
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Response: A fair use. Important factors: Rev. Falwell's copying did not diminish the sales of the magazine (since it was already off the market) and would not adversely affect the marketability of back issues. (Hustler Magazine, Inc. v. Moral Majority, Inc., 606 F. Supp. 1526 (C.D. Cal. 1985).)
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A Google search engine's thumbnail display of photos from a subscription-only website (featuring nude models) was challenged by the copyright holder of the images. Is this considered a fair use?
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Response: A fair use. The court considered Google's use of thumbnails as "highly transformative" noting that a search engine transforms the image into a pointer directing a user to a source of information (versus the image's original purpose: entertainment, aesthetics, or information). This transformative use outweighs any commercial factors regarding Google's ability to earn money from placement of ads on the search results page. The court's reasoning -- that "a search engine provides an entirely new use for the original work," -- re-affirmed the principles established in the Ninth Circuit's decision in Kelly v. Arriba Soft
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Is it a fair use, or an infringement, to reproduce Grateful Dead concert posters within a book?
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Response: A fair use. Important factors: The Second Circuit focused on the fact that the posters were reduced to thumbnail size and reproduced within the context of a timeline. (Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006).)
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The artist, Jeff Koons, used portions of a fashion photo - a woman's legs in Gucci sandals - in a painting, "Niagara." The painting included a montage of popular culture images spread over a Dali-like landscape. Is this a fair use?
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Response: A fair use. Important factors: The court viewed "Niagara" as a transformative use because it commented upon the use of fashion imagery in consumer culture. (Blanch v. Koons, 2005 U.S. Dist. LEXIS 26299 (S.D.N.Y. 2005).)
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The artist, Jeff Koons, created a series of porcelain sculptures based upon a photograph of a man and woman holding puppies. Although certain aspects were exaggerated, the photo was copied in detail. Koons earned several hundred thousand dollars from sales of the sculptures. Is this a fair use?
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Response: Not a fair use. Important factors: Although Koons claimed fair use under a parody theory - the sculptures were part of his 'banality' series - the court disagreed, claiming that the sculptures did not parody the work. The court also noted that it did not matter whether the photographer had considered making sculptures; what mattered was that a potential market for sculptures of the photograph existed. (Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992).)
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A nonprofit foundation presented a program called "Classic Arts Showcase," for broadcast principally to public television and cable channels. The foundation used an 85 second portion (of a five-minute performance) by an opera singer from a two-hour movie, "Carnegie Hall." Is this a fair use?
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Response: Not a fair use. Although the court considered the use to be educational, noncommercial and to consist of an extremely small portion of the work, those factors were outweighed by the potential loss of licensing revenue. The copyright owners had previously licensed portions of the work for broadcast and the court determined that the foundation's use affected the potential market. (Video-Cinema Films, Inc. v. Lloyd E. Rigler-Lawrence E. Deutsch Found., 2005 U.S. Dist. LEXIS 26302 (S.D. N.Y. 2005).)
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A television news program copied one minute and 15 seconds from a 72-minute Charlie Chaplin film and used it in a news report about Chaplin's death. Is this a fair use?
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Response: Not a fair use. The court felt that the portions taken were substantial and part of the "heart" of the film. (Roy Export Co. Estab. of Vaduz v. Columbia Broadcasting Sys., Inc. , 672 F.2d 1095, 1100 (2d Cir. 1982).)
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The makers of a movie biography of Muhammad Ali used 41 seconds from a boxing match film in their biography. Is this a fair use?
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Response: A fair use. A small portion of film was taken and the purpose was informational. (Monster Communications, Inc. v. Turner Broadcasting Sys. Inc., 935 F. Supp. 490 (S.D. N.Y. 1996).)
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A television station’s news broadcast used 30 seconds from a four minute copyrighted videotape of the 1992 Los Angeles beating of Reginald Denny. Is this a fair use?
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Response: Not a fair use. The use was commercial and took the "heart of the work" and affected the copyright owner’s ability to market the video. ( Los Angeles News Service v. KCAL-TV Channel 9, 108 F.3d 1119 (9th Cir. 1997).)
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Is home videotaping of a television broadcast considered a fair use?
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Response: A fair use. In a lawsuit commonly known as the Betamax case, the Supreme Court determined that the home videotaping of a television broadcast was a fair use. This was one of the few occasions when copying a complete work (for example, a complete episode of the "Kojak" television show) was accepted as a fair use. Evidence indicated that most viewers were "time-shifting" (taping in order to watch later) and not "library-building" (collecting the videos in order to build a video library). Important factors: The Supreme Court reasoned that the "delayed" system of viewing did not deprive the copyright owners of revenue. (Universal City Studios v. Sony Corp., 464 U.S. 417 (1984).)
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A poster of a "church quilt" was used in the background of a television series for 27 seconds. Is this a fair use?
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Response: Not a fair use. The court was influenced by the prominence of the poster, its thematic importance for the set decoration of a church and the fact that it was a conventional practice to license such works for use in television programs. (Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70 (2d Cir. 1997).)
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A common search engine practice is to creating small reproductions ("thumbnails") of images and place them on its own website (known as "inlining"), often to serve as links to the original image. Is this a fair use?
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Response: A fair use. This use does not undermine the potential market for the sale or licensing of those images. The thumbnails are much smaller and of much poorer quality than the original photos and served to index the images and help the public access them. (Kelly v. Arriba-Soft Corp., 336 F.3d 811, 816 (9th Cir. 2003).
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The Los Angeles County Sheriff's Department purchased 3,663 licenses to use a software program, but installed the software onto 6,007 computers. Is this a fair use?
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Response: Not a fair use. Although the software was installed onto 6,007 computers, the computers were configured such that the total number of workstations able to access the installed software did not exceed the total number of licenses the Sheriff's Department purchased. The installation of the software onto nearly all of the Sheriff's office computers was not transformative, did not promote an advancement of the arts, and was commercial in nature. Wall Data Inc. v. Los Angeles County Sheriff's Department __ F.3d __ (9th Cir. 2006).
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Search engines such as Google maintain that displaying a cached website in search engine results is a fair use and not an infringement. Is this a fair use?
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Response: A fair use. A "cache" refers to the temporary storage of an archival copy - often a copy of an image of part or all of a website. With cached technology it is possible to search web pages that the website owner has permanently removed from display. An attorney/author sued Google when the company's cached search results provided end users with copies of copyrighted works. The court held that Google did not infringe. Google was considered passive in the activity - users chose whether to view the cached link. In addition, Google had an implied license to cache web pages since owners of websites have the ability to turn on or turn off the caching of their sites using tags and code. In this case, the attorney/author knew of this ability and failed to turn off caching, making his claim against Google appear to be manufactured. (Field v. Google Inc., 412 F. Supp. 2d 1106 (D. Nev. 2006).)
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Entire publications of the Church of Scientology were posted on the Internet by several individuals without Church permission. Is this a fair use?
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Response: Not a fair use. Fair use is intended to permit the borrowing of portions of a work, not complete works. (Religious Technology Center v. Lerma, 40 U.S.P.Q. 2d 1569 (E.D. Va. 1996).)
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The Washington Post used three brief quotations from Church of Scientology texts posted on the Internet. Is this a fair use?
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Response: A fair use. Only a small portion of the work was excerpted and the purpose was for news commentary. ( Religious Technology Center v. Pagliarina, 908 F. Supp 1353 (E.D. Va. 1995).)
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A karaoke manufacturer paid a compulsory license fee for the right to reproduce musical compositions on its machines. The music publisher requested an additional fee for the right to reproduce the lyrics on the karaoke video monitor. The manufacturer refused to pay additional fees and claimed that it had a fair use right to reproduce the lyrics. Is this a fair use?
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Response: Not a fair use. Display of the lyrics was not a fair use because: singing along to lyrics was not a transformative use; the karaoke company used all of the lyrics; and the manufacturer's use was for profit. This ruling harmonizes the Ninth Circuit with the Second Circuit's ruling in ABKCO Music, Inc. v. Stellar Records, Inc., 96 F.3d 60, (2d Cir. 1996). (Leadsinger, Inc. v BMG Music Publishing, CV-04-08099-VAP (9th Cir. January 2, 2008).
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A woman was sued for copyright infringement for downloading 30 songs using peer-to-peer file sharing software. She argued that her activity was a fair use because she was downloading the songs to determine if she wanted to later buy them. Is this a fair use?
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Response: Not a fair use. Important factors: Since numerous sites, such as iTunes permit listeners to sample and examine portions of songs without downloading. the court rejected this "sampling" defense. BMG Music v. Gonzalez, 430 F.3d 888 (7th Cir. 2005).
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A person running for political office used 15 seconds of his opponent's campaign song in a political ad. Is this a fair use?
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Response: A fair use. Important factors: A small portion of the song was used and the purpose was for purposes of political debate. (Keep Thomson Governor Comm. v. Citizens for Gallen Comm., 457 F. Supp. 957 (D. N.H. 1978).)
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A television film crew, covering an Italian festival in Manhattan, recorded a band playing a portion of a copyrighted song "Dove sta Zaza." The music was replayed during a news broadcast. Is this a fair use?
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Response: A fair use. Important factors: Only a portion of the song was used, it was incidental to the news event and did not result in any actual damage to the composer or to the market for the work. ( Italian Book Corp, v. American Broadcasting Co., 458 F. Supp. 65 (S.D. N.Y. 1978).)
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The rap group 2 Live Crew borrowed the opening musical tag and the words (but not the melody) from the first line of the song "Pretty Woman" ("Oh, pretty woman, walking down the street "). The rest of the lyrics and the music were different. Is this a fair use?
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Response: A fair use. Important factors: The group's use was transformative and borrowed only a small portion of the "Pretty Woman" song. The 2 Live Crew version was essentially a different piece of music and the only similarity was a brief musical opening part and the opening line. (Note: The rap group had initially sought to pay for the right to use portions of the song but were rebuffed by the publisher who did not want "Pretty Woman" used in a rap song.) (Campbell v. Acuff-Rose Music,510 U.S. 569 (1994).)
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The composers of the song, "When Sunny Gets Blue," claimed that their song was infringed by "When Sonny Sniffs Glue," a 29 second parody that altered the original lyric line and borrowed six bars of the song. Is this a fair use?
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Response: A court determined this parody was excused as a fair use. Only 29 seconds of music were borrowed (not the complete song ). As a general rule, parodying more than a few lines of a song lyric is unlikely to be excused as a fair use. Performers such as Weird Al Yankovic, who earn a living by humorously modifying hit songs, seek permission of the songwriters before recording their parodies. (Fisher v. Dees, 794 F.2d 432 (9th Cir. 1986).)
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Comedians on the late-night television show "Saturday Night Live" parodied the song "I Love New York" using the words "I Love Sodom." Only the words "I Love" and four musical notes were taken from the original work. Is this a fair use?
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Response: A fair use. Important factors: The "Saturday Night Live" version of the jingle did not compete with or detract from the original song. (Elsmere Music, Inc. v. National Broadcasting Co., 482 F. Supp. 741 (S.D. N.Y.), aff'd 632 F.2d 252 (2d Cir. 1980).)
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An author mimicked the style of a Dr. Seuss book while re-telling the facts of the O.J. Simpson murder trial in The Cat NOT in the Hat! A Parody by Dr. Juice. Is this a fair use?
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Response: Not a fair use. The Ninth Circuit Court of Appeals determined that the book was a satire, not a parody, because the book did not poke fun at or ridicule Dr. Seuss. Instead, it merely used the Dr. Seuss characters and style to tell the story of the murder. Important factors: The author's work was nontransformative and commercial. (Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., 109 F.3d 1394 (9th Cir. 1997).)
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A movie company used a photo of a naked pregnant woman and superimposed the head of actor Leslie Nielsen. The photo was a parody using similar lighting and body positioning of a famous photograph taken by Annie Leibovitz of the actress Demi Moore for the cover of Vanity Fair magazine. Is this a fair use?
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Response: A fair use. The movie company's use was transformative because it imitated the photographer's style for comic effect or ridicule. (Leibovitz v. Paramount Pictures Corp., 137 F.3d 109 (2d Cir. N.Y. 1998).)
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An artist created a cover for a New Yorker magazine that presented a humorous view of geography through the eyes of a New York City resident. A movie company later advertised their film Moscow on the Hudson using a similar piece of artwork with similar elements. Is this a fair use?
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Response: Not a fair use. The artist sued and a court ruled that the movie company's poster was not a fair use. The Moscow on the Hudson movie poster did not create a parody; it simply borrowed the New Yorker's parody (the typical New York City resident's geographical viewpoint that New York City is the center of the world). (Steinberg v. Columbia Pictures Industries, Inc., 663 F. Supp. 706 (S.D. N.Y. 1987).)
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You’re teaching French and you found a great worksheet in an old textbook‘s workbook. You scan it and put it in your LMS course, asking students to print it out and complete it. They like it so much you use it very semester. Is this a fair use?
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Response: This is infringement for several reasons: You use it more than one semester. You are not allowed to copy/digitize from materials created for educational use.
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You recorded an episode of the Sopranos from cable. You decide it’s a good example of criminal activity and show it in your Intro to Criminology class. Is this use ok in terms of copyright?
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Response: Yes, the Face-to-Face Teaching exemption (section 110 of Title 17) applies here.
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You record a program from PBS’s Nova in October and show it to your class the next March. Is this a fair use?
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Response: You must show the recorded program within 10 days of the recording and destroy the recording after 45 days. It doesn’t matter if it was on public television.
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You encourage creativity in your students. For a project, one group performs a skit based on the CSI television show. Does this use violate copyright?
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Response: Maybe. Did they in essence write an episode of CSI, using the same characters? Or did they write a satirical interpretation of the show? Parody is allowed under fair use. (Think Saturday Night Live!)
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After a lecture, a group of students come up to you. One student describes his idea for an article. You encourage him to write the article and submit it. A year later, you’re reading a journal and see an article about that very idea, down to the specifics, but it’s by a different student. Is this copyright infringement?
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Response: No, it may be unethical but it is not copyright infringement. Ideas themselves cannot be copyrighted. There is no indication that the student who had the original idea wrote it down. To be copyrightable, it must in fixed, tangible form.
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You rent a movie from Netflix and you show it in class the next day. Is this use ok in terms of copyright?
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Response: Yes, the Face-to-Face Teaching exemption (section 110 of Title 17) applies here.
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One of your students creates a video play for your class. In the play, a character sings Happy Birthday. Is this a copyright no-no?
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Response: Maybe – Happy Birthday is under copyright. If it’s a one-time performance, you might fall under fair use. If the student’s play is performed again or is published, permission is required.
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You find a political cartoon and include it in your classroom lecture. Is this a copyright violation?
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Response: Maybe. Did you scan or download it and include it your PowerPoint or did you cut it out of the newspaper or magazine and just show it on the document camera? If you just show it on the document camera, you haven’t reproduced or distributed it. Even if you inserted it into the presentation, you might fall under fair use, as long as it was the only one you used from that issue. And as long as you don’t use it again next semester. If you want to use it over and over, request permission from the copyright holder.
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You’re in the car listening to the radio. You hear a song that illustrates perfectly the concept you want discuss in class the next day. You go home and download the song from iTunes. You insert it into your PowerPoint and after class, load the PowerPoint to your website. Is this use a fair one?
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Response: Maybe. Did you use the entire song? Is your website open to the public or is in Eagle Online? Will you use the song in the PowerPoint next semester or will you keep it on your website for more than a semester? Even if you used the entire song, you might fall under fair use if the time between when you heard the song (or had the idea to use it) and the lecture was very short – unreasonable to request and gain permission. You can fall under fair use if you use only 10% of the song, but only if you don’t use it semester after semester. You should not put your PowerPoint on an open website.
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Your students are struggling with a written assignment. You find an old paper from a student last year and photocopy it to show students a good example. You make sure to remove the student’s name and any grading marks. Can this be done without permission?
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Response: No, students own the copyright to their intellectual work, even if done for a class. You should request written permission.
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You find a great article online that you want to share with a colleague. You copy the URL in an email that you send to you colleague. Is this a copyright violation?
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Response: No, you can copy URLs and send them on – you are merely pointing to the article. You may have infringed if you had made a pdf copy if it and forwarded the article in email.
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Your department has purchased a DVD for use in the classroom. You make a copy to ensure that if the DVD is lost or broken, you have a backup. Is this allowable?
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Response: Yes, you are allowed to make a back up copy, if the DVD is copiable (technology may disallow this).
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You have taped interviews of several veterans. With their permission, you edited the tapes into a montage video and posted it on YouTube. A few months later, a colleague at another university tells you she has downloaded the video and video used in her class. Can you prevent her use?
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Response: No, just as you can use works by others for educational use, so can others use your work.
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You find a website that has a really cool form to collect information. You copy the source code and adapt it slightly to fit your purposes. You use this form on your website. Is this a violation of copyright?
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Response: Yes, if the source code and look of the form is distinctive, it may fall under copyright. If it’s general form – with generally-used code, you may fall under fair use.
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Your students will do a project. You download images and photos from various non-commercial websites and store them in an Eagle Online folder for the students to view. Is this a problem?
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Response: No. You can download and store images on an educational network that is password-protected, as long as you include a copyright notice that informs students they cannot print, publish, download, share. BUT you cannot upload them back to the public web.
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You assign a multimedia project to your students. They combine text, video, audio and images and create a DVD for presentation in class. Students create a copy for themselves and a copy for you. Is making a copy ok in terms of copyright?
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Response: Assuming students have followed the copyright rules in creating the projects, you are allowed to have one copy for your records.
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You’re in the library reading an interesting article in the latest issue of a journal in your discipline and you’d like to incorporate the research into your class lecture the next day. You make a photocopy of the article to take home with you to prepare the lecture. Is this a copyright violation?
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Response: No, as long as you don’t reproduce the article for your students or others. You are allowed to make a single copy for your use in preparation or in scholarly research.
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Several of your students haven’t got the textbook yet. You make a copy of the first chapter for them so they won’t get behind. Is this a fair use?
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Response: Probably. You can make a single copy of a book chapter for yourself for your use in preparation or in scholarly research. But making multiple copies, even just 2 or 3, has restrictions, including a 500-word maximum. A chapter will likely surpass the maximum words allowed. You could ask the publisher for permission.
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You have your class read aloud Shakespeare’s Hamlet in several class sessions. Is this a copyright problem?
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Response: Probably not. Hamlet is in the public domain. You could even have the students act it out. BUT you could not read or act or show The Lion King, as it is still under copyright protection. You could read aloud A Tale of Two Cities - this is a non-dramatic literary work.
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You’re teaching an online class. You need an picture of the Eiffel Tower. You go to the library and find a book of images published in 1918. You check it out, go home and scan a picture. You place this image on your faculty webpage. Is this a fair use or do you need to seek permission?
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Response: No. It doesn’t even matter that you put the image on a public webpage. The book was published more than 90 years ago - it has fallen into public domain.
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