The purpose of copyright law was never to close down the exchange of ideas; in fact, it’s in place to encourage creators to share their work without fear of others stealing it or any profits that might come from it. In the spirit of exchanging and building on others’ ideas, fair use permits people to use limited portions of copyrighted works without obtaining permission from the copyright holders, for the purpose of criticism or commentary.
Fair Use Guidelines
There are four standards that you must consider when deciding whether fair use protects your use of a copyrighted work, and you can use the acronym PANE to more easily remember them:
- Purpose and character of the use
- Amount and substantiality of the portion taken
- Nature of the copyrighted work
- Effect of the use upon the potential market
Keep in mind that fair use is a subjective legal issue; that is, opinions may vary on the legality of your specific use. Think of each of these guidelines on its own sliding scale, with “strong argument” on one side and “weak argument” on the other. If you make your best effort to adhere to the following four standards and have strong arguments for each one, you can be confident that you are benefiting your students while still respecting copyright law.
The Purpose and Character of the Use
The purpose of the use refers to whether you are using the work for nonprofit or educational purposes or for commercial (for-profit) purposes. Generally, copyright law favors nonprofit or educational uses over commercial uses.
The character of the use refers to whether your use of the work is transformative rather than merely replicative. In other words, your use should add to the original work or shed new insight into it rather than merely repeat the original creator’s ideas.
The Amount and Substantiality of the Portion Taken
The amount refers to the quantity of the work used. Although many have suggested that 10 percent is the acceptable amount of a work you can use, the law doesn’t actually specify what is an acceptable percentage that others may use of a copyrighted work. However, in general, the smaller the percentage, the more likely it is that fair use will cover your use.
A note on images: Images are difficult because typically it is necessary to display the entire image rather than just a portion of it. When you are using a full image, make sure your use complies with the requirements of the TEACH Act.
Substantiality refers to the quality of the work used, so it matters what part of the work you intend to include in your course. Copyright law is stricter about using the “heart” of a work, meaning what makes the work unique or iconic. For example, fair use would likely not cover replicating the argumentation or structure of an essay or “borrowing” the most memorable lines from written work or scenes from a movie, even if they constitute a small portion of the work.
The Nature of the Copyrighted Work
The nature of the work covers two main issues: whether the work is published or unpublished and whether the work is more creative or factual. Fair use is less likely to apply for uses of unpublished works, because copyright law protects authors’ right to choose when and how they first publish their works. In other words, the law favors creators having a say over how their works are first presented to the rest of the world. Copyright law also more stringently protects creative works because they are more unique to the creator than factual works.
The Effect of the Use Upon the Potential Market
Your use of a work may not deprive the original creator of any income he or she may currently earn or earn in the future based on the work. For example, instructors might deprive a filmmaker of income if they screen a DVD meant for individual purchase, or they might deprive publishers of income if they summarize large portions of a textbook that students might otherwise buy themselves.
You also may not take an original work and publish it in a different medium or format. For example, you can’t take a series of essays and turn it into a book or create a piece of art based on a photograph, because this would deprive the original creator of the chance to earn income based on his or her work in a different industry.
When you are considering whether your use of a copyrighted work falls under fair use, ask yourself these four questions:
- Is your use for educational purposes, and does it expand on the original work in some way?
- Is the original work published and factual in nature?
- Is your use a reasonably small portion of the entire work, and does it avoid using the “heart” of the original work?
- Does your use avoid depriving the original creator of present or future income?
If you can answer “yes” to all four of these questions, you can be confident that your use of the work is legal and ethical. Just make sure to cite your source!
American University Library. (2010). What faculty need to know about copyright for teaching. Retrieved from https://www.american.edu/library/documents/upload/Copyright_for_Teaching.pdf
Columbia University Libraries. (n.d.). Fair use. Retrieved from https://copyright.columbia.edu/basics/fair-use.html
Hoon, P. (2007). Using copyrighted works in your teaching FAQ: Questions faculty and teaching assistants need to ask themselves frequently. Retrieved from http://www.knowyourcopyrights.org/storage/documents/kycrfaq.pdf
Stanford University Libraries. (n.d.). Measuring fair use: The four factors. Retrieved from http://fairuse.stanford.edu/overview/fair-use/four-factors/