Fair Use and Some Commonly Believed Myths

Fair use law can be a tricky area for anyone. Just looking at the Copyright Office’s description of the law is enough to give you a headache and leave you all kinds of confused. It lists four factors used to consider whether something is fair use, but they feel very subjective, and they are very vague or broad depending on how you like to think of things. Still, it’s important to have a decent understanding of what constitutes fair use. For one, it could protect you legally. Secondly, it allows you to use copyrighted material in certain situations without getting permission or paying for it. In the Code of best practices in fair use for media literacy education, (2008) the report notes that the Supreme Court has said that fair use is what keeps copyright from violating the First Amendment. (pg. 5)

The four factors central to copyright law, as stated by the U.S. Copyright Office (2012) 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.”

There’s a common myth out there that the amount of the material used is what’s key about fair use. It varies, depending on who you talk to. I’ve heard some say as long as you don’t use more than 10 percent of a work, you’re in the clear. But, the Copyright Office website says there is no set number of “words, lines, or notes” that you can safely use without permission. It adds that simply adding citation is not necessarily enough either. The Copyright Office recommends people who aren’t sure about whether their work falls under the fair use guidelines to reach out to an attorney. But a student in school is unlikely to do that. So is a teacher. Instead, they might reach out to a media specialist or administrator for a second opinion if they are really concerned. 

There are many other myths about fair use out there. The Code of best practices in fair use for media literacy education (2008) report lists several, including the notion that fair use could get you sued. While it’s true that it is a possible to be sued for violating copyright, the report points out that it is very, very unlikely. In most cases, the copyright holder simply sends a cease and desist notice to notify the person of copyright infringement and to warn the person that he or she could be sued. Still, even threat of a lawsuit doesn’t mean you will be sued, or that the company will win. Companies and people sue for copyright and trademark infringement all the time and don’t win for one reason or another. In a school setting, it’s even more unlikely that you’ll get sued, one because most fair use instances would not leave the classroom. The only time you might run into trouble is if you publish something on the internet that may not fall under fair use guidelines. For instance, you could potentially run into trouble if you used the entirety of a hit song in the background of a video project that you posted on YouTube for the public to view. 

Another common fair use myth deals with commercial versus non-commercial use. Many people falsely believe that it’s okay to use copyrighted material under the fair use guidelines as long as they aren’t profiting off of it. Meanwhile, some believe if you are profiting, then the use doesn’t qualify as fair use. Both thoughts are wrong. Just because you don’t profit off the work doesn’t mean that it’s fair use. Non-profit organizations aren’t profiting per se off things they give away for charity, such as t-shirts and hats. That doesn’t mean they can print a Disney princess on their shirt and call it fair use. Similarly, a for-profit corporation could easily use copyrighted material in work it makes money off of and call it fair use. We do this where I work all the time. It’s how we are able to broadcast a number of still pictures and cell phone videos. We have a lot of restrictions that center around fair use, though. We have an entire department of lawyers that focus solely on rights and clearances for the network, called RACI. The rules for fair use are a little different in the department I work in. I work with the branch of the company that distributes video and scripts to our hundreds of affiliate stations domestically and internationally. These stations pay us for the material, so the company does profit off the material. The only time we can fair use and distribute a picture, sound, or video is within what’s called a package. For those who aren’t familiar with the term, a package is a pre-produced piece of video that is voiced by a reporter and usually includes interviews from people, as well as video pertaining to a specific story. Packages end with the reporter sig-out, which is where the person says, “I’m so-and-so, reporting from Atlanta for whatever news station.” When we do send out these packages, we are required to place a warning in the script notifying our affiliates that the piece contains third-party material, or material that we did not specifically pay for or get permission to use. The warning informs stations it’s up to them to decide whether to use the material. It also usually places a time restriction on how long the piece can be used (usually up to 10 days from the day it was sent), and warns stations they may not cut up the video to remove the copyrighted material to air it separately. In other words, the package must be aired intact and the fair use video cannot be removed to be aired on its own. We fair use material all the time in this way. I’ve never heard of anyone running into issues where I work with fair use. Anytime we aren’t sure about something, we run it by the lawyers. Most items are approved by the lawyers before we even get it anyways. They will often send out guidance by e-mail and on an internal website notifying staff of any restrictions on material. Movie and TV clips, music videos and music, as well as some historical footage are items we frequently fair use. 

There’s no doubt, fair use can be a little confusing, and there is a lot of misinformation out there about what constitutes fair use. But being unsure isn’t a reason to pass up using material that is very likely legal for you to use and could benefit your students or your lessons. It’s important for educators to be familiar with the law so they know how to fair use material correctly. Education in this area usually falls to the media specialist, so it could be useful to create handouts, presentations, or other materials with information on what fair use covers, examples of fair use in the classroom, and links for where to go for more information. 

Here are a few good websites I found on the topic:

http://copyright.columbia.edu/copyright/fair-use/

http://www.teachingcopyright.org/handout/fair-use-faq

http://copyright.lib.utexas.edu/copypol2.html

References:

Code of best practices in fair use for media literacy education. (2008). Retrieved from http://mediaeducationlab.com/code-best-practices-fair-use-media-literacy-education-0

U.S. Copyright Office. (2012). Fair use. Retrieved from http://www.copyright.gov/fls/fl102.html