Copyright, Fair Use & Alternatives

1. Did the use "transform" the material taken from the copyrighted work by using it for a broadly beneficial purpose different from that of the original, or did it just repeat the work for the same intent and value as the original?

2. Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?

— Association of Research Libraries, Code of Best Practices in Fair Use for Academic and Research Libraries (2012)

To best position yourself to assert a fair use argument when using video, consider doing the following:

• Link to the video if possible rather than making an electronic copy available to students. Linking to materials is ordinarily not a violation of copyright but rather a technological instruction for locating materials.
• If copying a video, do not use any more of the video than the amount needed to serve your purpose.
• Avoid copying videos from materials created and marketed primarily for use in courses such as the one at hand (e.g. from a textbook, workbook, or other instructional materials designed for the course). Use of more than a brief excerpt from such works on digital networks is unlikely to be transformative and therefore unlikely to be a fair use.
• Make sure that the video content serves a pedagogical purpose; do not use as entertainment.
• Place the video in the context of the course, explaining why it was chosen and what it was intended to illustrate. Recontextualize the video when appropriate through the addition of background readings, study questions, commentary, criticism, annotation, and student reactions.
• Limit access to the video to students enrolled in the course.
• Use streaming or other technologies that limit students' ability to download, copy, or redistribute the material.
• Notify students that videos are being made available for teaching, study, and research only.
• Provide attributions to known copyright owners of the videos.

The examples below are intended to model the thought processes instructors should engage in when determining whether an intended use is fair given the particular facts at hand. A final determination of fair use can only be made in a court of law. This guide is not intended as legal advice.

Example

Professor Soleway is teaching an online course on the depiction of divorce in popular culture. His course notes are posted on Blackboard along with background readings and other course content. For a segment on divorce in popular film, Professor Soleway digitizes short clips from each of three movies: Divorce American Style (1967, Bud Yorkin), Kramer vs. Kramer (1979, Robert Benton), and The Squid and the Whale (2005, Noah Baumbach). He embeds clips onto the course Blackboard.

Professor Soleway's course notes set the context for each clip by prefacing it with an explanation of what he wants students to watch for. After each clip, he elaborates on what he thinks it illustrates about the popular representation of divorce. After viewing the clips, students are given a list of questions that require them to critically reflect on the content of the clips. Students post their responses in the discussion section of the course site. Is this fair use?

Analysis

1. Did the use "transform" the material taken from the copyrighted work by using it for a broadly beneficial purpose different from that of the original, or did it just repeat the work for the same intent and value as the original?

Yes, Professor Soleway's use is transformative, since he is using films originally produced for entertainment purposes to examine cultural representations of divorce. The fact that he surrounds each film clip with commentary that places the clip in the context of his broader argument and that students are required to critically analyze the clips' contents strengthens the transformative nature of his use, as does the fact that his use takes place in a noncommercial educational context.

2. Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?

These films are creative works, but limited portions of each were used, just enough to convey how the film treated the topic of divorce. Given that limited portions of each film were used, that Professor Soleway's use is transformative, and that the use took place in a noncommercial educational setting, the use is likely to be fair.

Fair use: Yes.

Example

Professor Peterson is teaching an online English seminar that examines discourses surrounding anti-drug messaging. In the course, he and his students will critically evaluate public service announcements, anti-drug campaign material from government agencies and non-profit advocacy groups such as the Partnership for a Drug-Free America, and selected articles from newspapers and popular magazines warning of the dangers of drug use. He plans to begin the course by examining one of the earliest pieces of anti-drug propaganda, the 1936 anti-marijuana film Reefer Madness. Fortunately, the university library owns a copy of this cult-classic. Professor Peterson wants an online video made available so that the students in his online class can access it. Is this fair use?

Analysis

A fair use analysis is probably not necessary. Reefer Madness is listed on a number of websites as being in the public domain. If this is the case, Professor Peterson is free to use it without restriction.

The film is freely available online in multiple locations, including the Internet Archive, Amazon.com, and YouTube.