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Copyright at CWC: Fair Use / Scenarios

Fair Use Defined

From the United States Copyright Office, four factors used to determine fair use are:

  1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
  2. The nature of the copyrighted work
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
  4. The effect of the use upon the potential market for, or value of, the copyrighted work

How to know what is 'fair'? Try this:


Scroll down for scenarios/examples regarding use of (a) print materials, (b) multimedia, and (c) videos.

A. Printed Material

Journal Article for Classroom Use

SCENARIO 1: A professor copies one article from a periodical for distribution to the class.

 FAIR USE? Yes. Distribution of multiple copies for classroom use is fair use. However, the repeated use of a copyrighted work, from term-to-term, requires more scrutiny in a fair use evaluation. Repeated use, as well as a large class size, may weigh against fair use.

Posting Copyrighted Article to Webpage

SCENARIO 2: 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.

FAIR USE? No, if access is open to the public, 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. If access to the web page is restricted, then it is more likely to be fair use.

Coursepacks

SCENARIO 3: 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.

FAIR USE? Generally speaking, you need to obtain permission before reproducing copyrighted materials for an academic coursepack. It's the instructor's obligation to obtain clearance for materials used in class. Instructors may seek assistance from the CWC Library.

Textbooks

SCENARIO 5: An instructor wishes to use a textbook he considers to be too expensive. He makes copies of the book for the class.

FAIR USE? No. Although the use is educational, the instructor 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 instructor should place a copy on reserve or require the students to purchase the book.

SCENARIO 6: An instructor decides to make three copies of a textbook and place them on reserve in the library for the class.
FAIR USE? 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.

Public Domain Materials

SCENARIO 7: A teacher copies a Shakespearian play from a copyrighted anthology.

FAIR USE?  Yes. The play is in the public domain and not subject to copyright protection.

Unpublished Letters

SCENARIO 8: A professor of psychology desires to edit and publish a collection of unpublished letters in the library archives.

FAIR USE? The answer to this scenario requires further information. Has the copyright protection expired? Are the letters subject to any agreement the library made with the donor? Can the author or authors of the letters be located? Is the library agreeable to publication? This is the type of problem that requires a detailed legal and factual analysis. 

Journal Article for Personal Use

SCENARIO 9: A professor wishes to make a copy of an article from a copyrighted periodical for her files to use later.

FAIR USE? Yes. This is a classic example of personal fair use so long as the professor uses the article for her personal files and reference.

Out-of-Print-Book

SCENARIO 10: A library has a book that is out of print and unavailable. The book is an important one in the professor's field that she needs for her research. The professor would like to copy the book for her files.

FAIR USE? Yes. This is another example of personal use. If one engages in the fair use analysis, one finds that: (1) the purpose of the use is educational versus commercial; (2) the professor is using the book, a creative work, for research purposes; (3) copying the entire book would normally exceed the bounds of fair use, however, since the book is out of print and no longer available from any other source, the copying is acceptable; (4) finally, the copying will have no impact on the market for the book because the book is no longer available from any other source.

SCENARIO 11: Using the same facts as explained in SCENARIO 10 could the professor copy the book and place the book on reserve in the library? Could the professor scan the book into her computer and place the book onto the World Wide Web?

FAIR USE? If the professor placed the book on reserve in the library, the use would be considered a fair use. However, if the professor placed the book on the Web, then the use is not a fair use. Placement on the Web allows unlimited access to the book. This would affect the copyright holder's public distribution of the book.

B. Multimedia

Classroom Presentation

SCENARIO 16: A teacher or student prepares and gives a presentation that displays photographs. Permission was not obtained to use the photographs.

FAIR USE? Yes. The copyright fair use provision explicitly provides for classroom use of copyrighted material. Instructors and students may perform and display their own educational projects or presentations for instruction.

Electronic Transmission or Broadcast of Classroom Presentation

What if the presentation incorporating the photographs discussed in SCENARIO 16 is broadcast to a distant classroom?

FAIR USE?  Yes. This use would be considered fair use, as long as the presentation is broadcast for remote instruction.

Broadcast of Classroom Presentation to Home or Office

What if the presentation discussed in SCENARIO 16 is broadcast to students at their homes or offices?

FAIR USE? Yes. This use would be considered fair use if the individuals are enrolled in a course and viewing the presentation for purposes of criticism, comment, teaching or instruction, scholarship, or research.

Videotaping of Classroom Presentation

What if the teacher's or student's presentation explained in SCENARIO 16 is videotaped?

FAIR USE?  Yes. This use would be considered fair use, if the videotape is used for educational purposes such as student review or if the videotape is for instruction.

Broadcast of Videotaped Classroom Presentation

What if the SCENARIO 16 presentation incorporating the photographs is videotaped and rebroadcast? Is this a fair use?

FAIR USE?  Yes. The use of the photographs is fair use as long as the presentation is videotaped and rebroadcast only for instruction.

Incorporation of Photographs in an Electronic Presentation (Excluding the Internet)

What if the SCENARIO 16 presentation is included in an electronic presentation such as Microsoft's Power Point?

FAIR USE?  Yes. This should be considered fair use as long as the electronic presentation is for educational or instructional use.

Making Changes to Photographs

What if the student or teacher were to change the attributes of the pictures discussed in SCENARIO 16?

FAIR USE?  Yes. This would be considered fair use for education, comment, criticism, or parody. One must inform the audience that changes were made to the photographer's copyrighted work.

Use of Copyrighted Music

SCENARIO 17: A teacher or student creates a presentation and incorporates copyrighted music into the background. Assume that permission was not obtained to use the music for the presentation.Can the music be included in the teacher's or student's initial presentation?

FAIR USE? Yes. This is fair use if instruction is occurring.

Use of Music in Videotaped Classroom Presentation

What if the teacher's or student's presentation described in SCENARIO 17 is videotaped?

FAIR USE?  Yes. This is fair use if instruction is occurring.

Use of Music in Broadcast of Videotaped Classroom Presentation

What if the SCENARIO 17 presentation is videotaped and rebroadcast?

FAIR USE?  The answer is not clear. If instruction is occurring and there are no admission charges to the rebroadcast, the presumption is that it may be fair use. Tuition and course fees do not constitute admission fees.

Use of Music in an Electronic Presentation (Excluding the Internet)

What if the SCENARIO 17 presentation is included in an electronic presentation (excluding the Internet)?

FAIR USE?  Yes. This is fair use if instruction is occurring.

Use of Music as Content in a Classroom Presentation

SCENARIO 18: A professor teaches an opera course, and the professor creates a presentation. The presentation contains the works of ten contemporary artists and is presented to a new class every semester.

FAIR USE? Yes, as long as the use of the presentation continues to be for instruction.

Use of Music in Classroom Presentations on the Internet

The opera classroom presentation (SCENARIO 18) or the presentation containing background music (SCENARIO 17) is placed on the Internet? 

FAIR USE?  Yes, so long as access is restricted, e.g., by use of a password or PIN or other means.

C. Videos

Showing a Video for Classroom Instruction

SCENARIO 12: A teacher wishes to show a copyrighted motion picture to her class for instructional purposes.

FAIR USE? Yes, since it is for classroom instruction and no admission fee is charged. Tuition and course fees do not constitute admission fees.

Copying a Video for Classroom Instruction

SCENARIO 13: A teacher makes a copy of the video described in SCENARIO 12 for a colleague to show in her class at the same time.

FAIR USE? No. The teacher may lend her personal copy of the video to a colleague for this purpose.

Renting a Video that Is in the Public Domain for Nonclassroom Use

SCENARIO 14: A professor wishes to raise funds for a scholarship. She rents a video of a motion picture on which the copyright has expired and charges admission fees.

FAIR USE? Yes. The copyright of the motion picture has expired, which places the motion picture in the public domain.

Video that Is Copyright-Protected for Nonclassroom Use

SCENARIO 15: The facts are the same as those in SCENARIO 14 except that the movie is protected by copyright.

FAIR USE? No, because it infringes the copyright owner's right to market the work.