Fair Use Doctrine
Presented by: Jonathan Denham
October 13th, 2006
Pedagogy HCOM 595
Overview
• Introduction and definition of fair use
Overview
• Introduction and definition of fair use
• Background of fair use
Overview
• Introduction and definition of fair use
• Background of fair use
• Different contexts of fair use
Overview
•
•
•
•
Introduction and definition of fair use
Background of fair use
Different contexts of fair use
How to know if something is fair use
What does that mean?
• Definition of fair use:
What does that mean?
• 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:
– 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:
Background
• 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
Wesley D. Blakeslee
Background
• 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 (8th 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:
– 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 1709. 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 1709. 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 1709. 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 1709. 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.
2.
the purpose and character of the use, including whether such use is of a commercial
nature or is for nonprofit educational purposes;
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 1709. 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.
2.
3.
the purpose and character of the use, including whether such use is of a commercial
nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
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 1709. 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.
2.
3.
4.
the purpose and character of the use, including whether such use is of a commercial
nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
the amount and substantiality of the portion used in relation to the copyrighted work
as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work.
(Wikipedia)
Fair Use in Media
• Rule of thumb:
Fair Use in Media
• Rule of thumb: Avoid using a rule of
thumb.
Fair Use in Media
• Rule of thumb: Avoid using a rule of
thumb.
Fair Use in Media
• 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.
Fair Use in Media
• 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.
• 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.
• 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?
– Considered fair use
Fair Use in Media
• 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?
– Considered fair use
Fair Use in Media
• 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?
Fair Use in Media
• 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 performance
Fair Use in Media
• A 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 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. government
Fair Use in Media
• A 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. 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 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. government
– Works created by the federal government
are not protected by copyright
• Ex: Military Films, Space Exploration
Fair Use in Classroom Handouts
• Making 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 use
• Common 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 use
• Common 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 copyright
Fair Use in Classroom Handouts
• Making use of the works of others raises questions for fair use
• Common 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 copyright
• Here’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 use
• Common 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 copyright
• 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 use
• Common 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 copyright
• 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 use
• Common 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 copyright
• 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 use
• Common 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 copyright
• 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 use
• Common 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 copyright
• 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 Internet
Fair Use For Photos
• Photos taken from the Internet
– Yahoo images, Google images, and others
Fair Use For Photos
• Photos 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 as
Determining Fair Use
• 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:
– 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:
– 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:
–
–
–
–
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:
–
–
–
–
–
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:
–
–
–
–
–
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 test
Determining Fair Use
•
Must 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 test
1.
2.
The purpose and character of the use
The nature of the copyrighted work
Determining Fair Use
•
Must be applied to the 4 – pronged test
1.
2.
3.
The purpose and character of the use
The nature of the copyrighted work
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 test
1.
2.
3.
4.
The purpose and character of the use
The nature of the copyrighted work
The amount and substantiality of the portion used in relation to
the copyrighted work as a whole
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 13th
Thank you for your time!!
Enjoy your Friday the 13th