Fair Use Doctrine Presented by: Jonathan Denham October 13 th, 2006 Pedagogy HCOM 595

Overview Introduction and definition of fair useIntroduction and definition of fair use

Overview Background of fair useBackground of fair use

Overview Introduction and definition of fair useIntroduction and definition of fair use Background of fair useBackground of fair use Different contexts of fair useDifferent contexts of fair use

Overview Introduction and definition of fair useIntroduction and definition of fair use Background of fair useBackground of fair use Different contexts of fair useDifferent contexts of fair use How to know if something is fair useHow to know if something is fair use

What does that mean? Definition of fair use:Definition of fair use:

What does that mean? Definition of fair use:Definition of fair use: –Fair use is a limitation on the exclusive rights of the copyright owner (Lloyd L. Rich)

What does that mean? Definition of fair use:Definition of fair use: –Fair use is a limitation on the exclusive rights of the copyright owner (Lloyd L. Rich) –Educational fair use means direct copying of the work in question with little change, for the purpose of providing materials to students in a nonprofit educational institution (Wesley D. Blakeslee)

Background Some very early cases of educational fair use:Some very early cases of educational fair use:

Background –MacMillan v. King, 223F. 862 (D. Mass. 1914): defendant, as part of his practice of tutoring individual pupils, prepared outlines of the copyrighted material, and distributed them for the use of defendant's pupils. INFRINGEMENT Wesley D. Blakeslee

Background Some very early cases of educational fair use:Some very early cases of educational fair use: –MacMillan v. King, 223F. 862 (D. Mass. 1914): defendant, as part of his practice of tutoring individual pupils, prepared outlines of the copyrighted material, and distributed them for the use of defendant's pupils. INFRINGEMENT –Wihtol v. Crow, 309 F. 2D 777 (8 th Cir. 1962): defendant was the head of the vocal departments of a junior college and high school and a church choir director, and had created an arrangement of very popular hymn for use by the school and church choirs. INFRINGEMENT Wesley D. Blakeslee

Background More thorough definition:More thorough definition: –Fair use is a doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the rights holders, such as use for scholarship or review. It provides for the legal, non-licensed citation or incorporation of copyrighted material in another author's work under a four-factor balancing test. It is based on free speech rights provided by the First Amendment to the United States Constitution. The term “fair use” is unique to the United States; a similar principle, fair dealing, exists in some other common law jurisdictions. (Wikipedia)

Background The legal concept of "copyright" was first ratified by the United Kingdom’s Statute of Anne of As room was not made for the authorized reproduction of copyrighted content within this newly formulated statutory right, the courts gradually created a doctrine of "fair abridgement", which later became "fair use", that recognized the utility of such actions. The doctrine only existed in the U.S. as common law until it was incorporated into the Copyright Act of 1976, 17 U.S.C. & 107, excerpted here: The legal concept of "copyright" was first ratified by the United Kingdom’s Statute of Anne of As room was not made for the authorized reproduction of copyrighted content within this newly formulated statutory right, the courts gradually created a doctrine of "fair abridgement", which later became "fair use", that recognized the utility of such actions. The doctrine only existed in the U.S. as common law until it was incorporated into the Copyright Act of 1976, 17 U.S.C. & 107, excerpted here: (Wikipedia)

Background The legal concept of "copyright" was first ratified by the United Kingdom’s Statute of Anne of As room was not made for the authorized reproduction of copyrighted content within this newly formulated statutory right, the courts gradually created a doctrine of "fair abridgement", which later became "fair use", that recognized the utility of such actions. The doctrine only existed in the U.S. as common law until it was incorporated into the Copyright Act of 1976, 17 U.S.C. & 107, excerpted here: The legal concept of "copyright" was first ratified by the United Kingdom’s Statute of Anne of As room was not made for the authorized reproduction of copyrighted content within this newly formulated statutory right, the courts gradually created a doctrine of "fair abridgement", which later became "fair use", that recognized the utility of such actions. The doctrine only existed in the U.S. as common law until it was incorporated into the Copyright Act of 1976, 17 U.S.C. & 107, excerpted here: Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— (Wikipedia)

Background The legal concept of "copyright" was first ratified by the United Kingdom’s Statute of Anne of As room was not made for the authorized reproduction of copyrighted content within this newly formulated statutory right, the courts gradually created a doctrine of "fair abridgement", which later became "fair use", that recognized the utility of such actions. The doctrine only existed in the U.S. as common law until it was incorporated into the Copyright Act of 1976, 17 U.S.C. & 107, excerpted here: The legal concept of "copyright" was first ratified by the United Kingdom’s Statute of Anne of As room was not made for the authorized reproduction of copyrighted content within this newly formulated statutory right, the courts gradually created a doctrine of "fair abridgement", which later became "fair use", that recognized the utility of such actions. The doctrine only existed in the U.S. as common law until it was incorporated into the Copyright Act of 1976, 17 U.S.C. & 107, excerpted here: Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— 1.the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (Wikipedia)

Background The legal concept of "copyright" was first ratified by the United Kingdom’s Statute of Anne of As room was not made for the authorized reproduction of copyrighted content within this newly formulated statutory right, the courts gradually created a doctrine of "fair abridgement", which later became "fair use", that recognized the utility of such actions. The doctrine only existed in the U.S. as common law until it was incorporated into the Copyright Act of 1976, 17 U.S.C. & 107, excerpted here: The legal concept of "copyright" was first ratified by the United Kingdom’s Statute of Anne of As room was not made for the authorized reproduction of copyrighted content within this newly formulated statutory right, the courts gradually created a doctrine of "fair abridgement", which later became "fair use", that recognized the utility of such actions. The doctrine only existed in the U.S. as common law until it was incorporated into the Copyright Act of 1976, 17 U.S.C. & 107, excerpted here: Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— 1.the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 2.the nature of the copyrighted work; (Wikipedia)

Background The legal concept of "copyright" was first ratified by the United Kingdom’s Statute of Anne of As room was not made for the authorized reproduction of copyrighted content within this newly formulated statutory right, the courts gradually created a doctrine of "fair abridgement", which later became "fair use", that recognized the utility of such actions. The doctrine only existed in the U.S. as common law until it was incorporated into the Copyright Act of 1976, 17 U.S.C. & 107, excerpted here: The legal concept of "copyright" was first ratified by the United Kingdom’s Statute of Anne of As room was not made for the authorized reproduction of copyrighted content within this newly formulated statutory right, the courts gradually created a doctrine of "fair abridgement", which later became "fair use", that recognized the utility of such actions. The doctrine only existed in the U.S. as common law until it was incorporated into the Copyright Act of 1976, 17 U.S.C. & 107, excerpted here: Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— 1.the purpose and character of the use, including whether such use is of a 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; and (Wikipedia)

Background The legal concept of "copyright" was first ratified by the United Kingdom’s Statute of Anne of As room was not made for the authorized reproduction of copyrighted content within this newly formulated statutory right, the courts gradually created a doctrine of "fair abridgement", which later became "fair use", that recognized the utility of such actions. The doctrine only existed in the U.S. as common law until it was incorporated into the Copyright Act of 1976, 17 U.S.C. & 107, excerpted here: The legal concept of "copyright" was first ratified by the United Kingdom’s Statute of Anne of As room was not made for the authorized reproduction of copyrighted content within this newly formulated statutory right, the courts gradually created a doctrine of "fair abridgement", which later became "fair use", that recognized the utility of such actions. The doctrine only existed in the U.S. as common law until it was incorporated into the Copyright Act of 1976, 17 U.S.C. & 107, excerpted here: Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— 1.the purpose and character of the use, including whether such use is of a 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; and 4.the effect of the use upon the potential market for or value of the copyrighted work. (Wikipedia)

Fair Use in Media Rule of thumb:Rule of thumb:

Fair Use in Media Rule of thumb: Avoid using a rule of thumb.Rule of thumb: Avoid using a rule of thumb.

Fair Use in Media Rule of thumb: Avoid using a rule of thumb.Rule of thumb: Avoid using a rule of thumb.

Fair Use in Media Rule of thumb: Avoid using a rule of thumb.Rule of thumb: Avoid using a rule of thumb. No one can ever know whether a use is fair by the use of any hard and fast rule.No one can ever know whether a use is fair by the use of any hard and fast rule.

Fair Use in Media Rule of thumb: Avoid using a rule of thumb.Rule of thumb: Avoid using a rule of thumb. No one can ever know whether a use is fair by the use of any hard and fast rule.No one can ever know whether a use is fair by the use of any hard and fast rule. Take a scene from a fictional movie on a VHS and copy it to a DVD?Take a scene from a fictional movie on a VHS and copy it to a DVD?

Fair Use in Media Rule of thumb: Avoid using a rule of thumb.Rule of thumb: Avoid using a rule of thumb. No one can ever know whether a use is fair by the use of any hard and fast rule.No one can ever know whether a use is fair by the use of any hard and fast rule. Take a scene from a fictional movie on a VHS and copy it to a DVD?Take a scene from a fictional movie on a VHS and copy it to a DVD? –Considered fair use

Fair Use in Media Showing a copyrighted movie or taped video program in the classroom?Showing a copyrighted movie or taped video program in the classroom?

Fair Use in Media Showing a copyrighted movie or taped video program in the classroom?Showing a copyrighted movie or taped video program in the classroom? –Considered fair use

Fair Use in Media Showing a copyrighted movie or taped video program in the classroom?Showing a copyrighted movie or taped video program in the classroom? –Considered fair use –Must be from a lawfully obtained copy e.g., could not use one that was “pirated” from the Internet

Fair Use in Media Copying several excerpts of different movies onto one single tape or DVD to show in class?Copying several excerpts of different movies onto one single tape or DVD to show in class?

Fair Use in Media Copying several excerpts of different movies onto one single tape or DVD to show in class?Copying several excerpts of different movies onto one single tape or DVD to show in class? –Fair use

Fair Use in Media A showing that is a private and not a public performanceA showing that is a private and not a public performance

Fair Use in Media A showing that is a private and not a public performanceA showing that is a private and not a public performance –The fewer number of people the less likely it will be considered public

Fair Use in Media A showing that is a private and not a public performanceA showing that is a private and not a public performance –The fewer number of people the less likely it will be considered public The performance is of a work created by the U.S. governmentThe performance is of a work created by the U.S. government

Fair Use in Media A showing that is a private and not a public performanceA showing that is a private and not a public performance –The fewer number of people the less likely it will be considered public The performance is of a work created by the U.S. governmentThe performance is of a work created by the U.S. government –Works created by the federal government are not protected by copyright

Fair Use in Media A showing that is a private and not a public performanceA showing that is a private and not a public performance –The fewer number of people the less likely it will be considered public The performance is of a work created by the U.S. governmentThe performance is of a work created by the U.S. government –Works created by the federal government are not protected by copyright Ex: Military Films, Space ExplorationEx: Military Films, Space Exploration

Fair Use in Classroom Handouts Making use of the works of others raises questions for fair useMaking use of the works of others raises questions for fair use

Fair Use in Classroom Handouts Making use of the works of others raises questions for fair useMaking use of the works of others raises questions for fair use Common issues: involve copying of articles from journals or excerpts from booksCommon issues: involve copying of articles from journals or excerpts from books

Fair Use in Classroom Handouts Making use of the works of others raises questions for fair useMaking use of the works of others raises questions for fair use Common issues: involve copying of articles from journals or excerpts from booksCommon issues: involve copying of articles from journals or excerpts from books Current copyright law gives legal protection to nearly all text, images, audiovisual recordings, and other course materials even if the original works do not include statements about copyrightCurrent copyright law gives legal protection to nearly all text, images, audiovisual recordings, and other course materials even if the original works do not include statements about copyright

Fair Use in Classroom Handouts Making use of the works of others raises questions for fair useMaking use of the works of others raises questions for fair use Common issues: involve copying of articles from journals or excerpts from booksCommon issues: involve copying of articles from journals or excerpts from books Current copyright law gives legal protection to nearly all text, images, audiovisual recordings, and other course materials even if the original works do not include statements about copyrightCurrent copyright law gives legal protection to nearly all text, images, audiovisual recordings, and other course materials even if the original works do not include statements about copyright Here’s how you can know if it can be copiedHere’s how you can know if it can be copied

Fair Use in Classroom Handouts Making use of the works of others raises questions for fair useMaking use of the works of others raises questions for fair use Common issues: involve copying of articles from journals or excerpts from booksCommon issues: involve copying of articles from journals or excerpts from books Current copyright law gives legal protection to nearly all text, images, audiovisual recordings, and other course materials even if the original works do not include statements about copyrightCurrent copyright law gives legal protection to nearly all text, images, audiovisual recordings, and other course materials even if the original works do not include statements about copyright Here’s how you can know if it can be copied:Here’s how you can know if it can be copied: –The instructor is the copyright owner of the material

Fair Use in Classroom Handouts Making use of the works of others raises questions for fair useMaking use of the works of others raises questions for fair use Common issues: involve copying of articles from journals or excerpts from booksCommon issues: involve copying of articles from journals or excerpts from books Current copyright law gives legal protection to nearly all text, images, audiovisual recordings, and other course materials even if the original works do not include statements about copyrightCurrent copyright law gives legal protection to nearly all text, images, audiovisual recordings, and other course materials even if the original works do not include statements about copyright Here’s how you can know if it can be copied:Here’s how you can know if it can be copied: –The instructor is the copyright owner of the material –The copyright owner grants permission

Fair Use in Classroom Handouts Making use of the works of others raises questions for fair useMaking use of the works of others raises questions for fair use Common issues: involve copying of articles from journals or excerpts from booksCommon issues: involve copying of articles from journals or excerpts from books Current copyright law gives legal protection to nearly all text, images, audiovisual recordings, and other course materials even if the original works do not include statements about copyrightCurrent copyright law gives legal protection to nearly all text, images, audiovisual recordings, and other course materials even if the original works do not include statements about copyright Here’s how you can know if it can be copied:Here’s how you can know if it can be copied: –The instructor is the copyright owner of the material –The copyright owner grants permission –The material is in the public domain

Fair Use in Classroom Handouts Making use of the works of others raises questions for fair useMaking use of the works of others raises questions for fair use Common issues: involve copying of articles from journals or excerpts from booksCommon issues: involve copying of articles from journals or excerpts from books Current copyright law gives legal protection to nearly all text, images, audiovisual recordings, and other course materials even if the original works do not include statements about copyrightCurrent copyright law gives legal protection to nearly all text, images, audiovisual recordings, and other course materials even if the original works do not include statements about copyright Here’s how you can know if it can be copied:Here’s how you can know if it can be copied: –The instructor is the copyright owner of the material –The copyright owner grants permission –The material is in the public domain –The use of the material is considered “fair use” under the law

Fair Use in Classroom Handouts Making use of the works of others raises questions for fair useMaking use of the works of others raises questions for fair use Common issues: involve copying of articles from journals or excerpts from booksCommon issues: involve copying of articles from journals or excerpts from books Current copyright law gives legal protection to nearly all text, images, audiovisual recordings, and other course materials even if the original works do not include statements about copyrightCurrent copyright law gives legal protection to nearly all text, images, audiovisual recordings, and other course materials even if the original works do not include statements about copyright Here’s how you can know if it can be copied:Here’s how you can know if it can be copied: –The instructor is the copyright owner of the material –The copyright owner grants permission –The material is in the public domain –The use of the material is considered “fair use” under the law –The material falls within another statutory exception

Fair Use For Photos Photos taken from the InternetPhotos taken from the Internet

Fair Use For Photos Photos taken from the InternetPhotos taken from the Internet –Yahoo images, Google images, and others

Fair Use For Photos Photos taken from the InternetPhotos taken from the Internet –Yahoo images, Google images, and others –Probably considered fair use

Determining Fair Use The copyright law states that fair use of a copyrighted work without permission shall be for purposes such asThe copyright law states that fair use of a copyrighted work without permission shall be for purposes such as

Determining Fair Use The copyright law states that fair use of a copyrighted work without permission shall be for purposes such as:The copyright law states that fair use of a copyrighted work without permission shall be for purposes such as: –Criticism and comment

Determining Fair Use The copyright law states that fair use of a copyrighted work without permission shall be for purposes such as:The copyright law states that fair use of a copyrighted work without permission shall be for purposes such as: –Criticism and comment –Parody and satire

Determining Fair Use The copyright law states that fair use of a copyrighted work without permission shall be for purposes such as:The copyright law states that fair use of a copyrighted work without permission shall be for purposes such as: –Criticism and comment –Parody and satire –Scholarship and research

Determining Fair Use The copyright law states that fair use of a copyrighted work without permission shall be for purposes such as:The copyright law states that fair use of a copyrighted work without permission shall be for purposes such as: –Criticism and comment –Parody and satire –Scholarship and research –News reporting

Determining Fair Use The copyright law states that fair use of a copyrighted work without permission shall be for purposes such as:The copyright law states that fair use of a copyrighted work without permission shall be for purposes such as: –Criticism and comment –Parody and satire –Scholarship and research –News reporting –Teaching

Determining Fair Use The copyright law states that fair use of a copyrighted work without permission shall be for purposes such as:The copyright law states that fair use of a copyrighted work without permission shall be for purposes such as: –Criticism and comment –Parody and satire –Scholarship and research –News reporting –Teaching (These are under the stipulation that such fair use will not result in the infringement of a copyrighted work.)

Determining Fair Use Must be applied to the 4 – pronged testMust be applied to the 4 – pronged test

Determining Fair Use Must be applied to the 4 – pronged testMust be applied to the 4 – pronged test 1.The purpose and character of the use

Determining Fair Use Must be applied to the 4 – pronged testMust be applied to the 4 – pronged test 1.The purpose and character of the use 2.The nature of the copyrighted work

Determining Fair Use Must be applied to the 4 – pronged testMust be applied to the 4 – pronged test 1.The purpose and character of the use 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

Determining Fair Use Must be applied to the 4 – pronged testMust be applied to the 4 – pronged test 1.The purpose and character of the use 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

Disclaimer:

Disclaimer: This is not considered legal advice. You should consult an attorney if you have legal questions that relate to your specific publishing issues and projects.

??Questions??

Thank you for your time!! Enjoy your Friday the 13 th

Thank you for your time!! Enjoy your Friday the 13 th