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Copyright Guide for Educators: Fair Use
Scenarios

Scenarios

Making Personal Copies            

Scenario: An instructor finds an article in a professional journal that will be helpful to her in future research projects. She would like to make a copy of the journal article for her personal files.

  • Fair Use: Yes, making a personal copy of a copyrighted work for research and reference is a fair use.

Photographs of Art

  • Scenario: An instructor would like to take digital photographs of paintings, sculptures, or architectural works and share them with her class.
  • Fair Use: Works of art and architecture that are not in the public domain may still be available to copy in the form of a photographic image. Photographic reproductions are generally lower-quality and would not likely compete in the same market as the original.
  • Also, remember that peoples' faces may not appear in photographs that will be publicly displayed without a signed release.

Posting Readings

  • Scenario: An instructor scans excerpts from journals, textbooks, and various other sources and creates PDF files of all of the readings. The instructor announces to the class that the readings will be available online at the course site. Is this fair use.
  • Fair Use: Fair use is determined by the results of the four factor analysis conducted for each work. In this scenario, the instructor must conduct a four factor analysis for each journal article, each textbook section, and any other work she wishes to include on the class  site. The result may be mixed and fair use might apply to some works while others may require permission from the rights owner for inclusion on the class website. (How new or recent is the material, is it out of print, how much of the entire work is being used, etc.)

Posting Copyrighted Article to Web Page or LibGuide

  • Scenario: A teacher has posted his class notes on a web page  available to the public. He wants to scan an article from a copyrighted journal and add it to his web page.
  • Fair Use: No, if access is open to the public, then this use is not a fair use. No exclusively educational purpose can be guaranteed by putting the article on the web, and such conduct would arguably violate the copyright holder's right of public distribution.

Copying Student Papers

  • Scenario: An instructor copies the papers submitted by some students in the class and posts them in a First Class conference as exemplars of student work..
  • Fair Use: No, the students' papers are copyrighted and each of the students will own the copyright to their papers. The instructor will need permission from each student to copy the papers. She should get the permissions before posting the papers

        Please note: Certain uses of student work may require compliance with the Family Educational Rights Privacy Act (FERPA).

Internet Resources

  • Scenario: An social studies teacher assigns his students to research and report on famous native Americans. He located a number of useful biographies from sources on the Internet. To make it more convenient, the teacher downloads the pages to the school server. Is this OK?Fair Use: Maybe - One would have to check the sources of the information to see if permission was granted to use the content in this way. A simpler [and legal] way would be to link the the various resources.

Uploading an Article Obtained from the Library to Online Course Site

  • Scenario: An instructor wants her students to read an article from a professional journal. She accesses the full text of the article as a PDF through the  Libraries' databases. She saves the article to her computer and then uploads it to her course's site for students to download
  • Fair Use: Not the PDF. Since the instructor obtained the article from a Libraries licensed electronic resource she needs to understand general limitations and restrictions on use that may be contained in the license agreement between the publisher and the Libraries. The terms of such license agreements control how the materials may be used.
  • Frequently license agreements do not allow copying of PDF files and reposting them to an instructor's web site or course site. However, in numerous instances the instructor can make articles available to students from a course web page through a direct link.

Media Scenarios

Showing a Videotape for Classroom Instruction

Scenario:A teacher wishes to show a copyrighted motion picture to her class for instructional purposes.

  • Fair Use: Yes, since it is for classroom instruction and no admission fee is charged. Tuition and course fees do not constitute admission fees.

Copying a Videotape for Classroom Instruction

  • Scenario: A teacher makes a copy of the videotape described above for a colleague to show in her class at the same time.
  • Fair Use: No. The teacher may lend her personal copy of the videotape to a colleague for this purpose.

Showing a Video in an Online Class

  • Scenario: An instructor wants to use a documentary and post it to a password-protected course website for download.
  • Fair Use: Only in the face-to-face classroom setting would this be allowable under the provisions of Section 110(1) in U.S. copyright law.
  • In this case the instructor would conduct a four factor fair use analysis to determine whether this is an allowable use. The circumstances weigh against fair use. Though the purpose is educational and the nature of this documentary film may be factual, the amount (the entire film) and the market effect (students will download the film and thus be able to keep their own copy) tip the balance of the four factors away from fair use. Use of the entire film may be critical to the educational purpose but by downloading the entire film each student becomes part of a distribution of the film that very likely has a negative market effect which cannot be ignored. If only streaming is allowed it would be fair use.

Using Media in Powerpoints

  • Scenario: An instructor wants to include photographs or music in a PowerPoint presentation for his class lecture. Does he need to seek permission from the copyright owners to do so? What if he wants to make changes to the photograph or music file?
  • Fair Use: Yes, because the use occurs in the face-to-face classroom, the instructor does not need to seek permission to use the copyrighted photographs and music files. Displaying or performing copyrighted works for classroom purposes is allowed under section 110 of U.S. Copyright Law.
  • In addition, changes made to enhance his instructional purpose, e.g. commentary, criticism, even parody, are activities allowed under the fair use provision.

Using a Personal iTunes Account

  • Scenario: A teacher is accessing a personal iTunes account at school. Students are then able to use entire songs for their projects, or save them to their own MP3 players or computers. Is this a problem since the teacher has paid for the subscription and it says downloaded songs may be placed on up to "5 different compatible devices"?
  • Fair Use: No, because there are several infringement issues at play. When a person subscribes to iTunes or other online music sources, there is a license agreeement. The iTunes agreement states, "you shall be authorized to use products only for personal noncommercial use."www.apple.com/legal/iTunes/us/terms.html. This disclaimer prohibits use in anything but a home setting. In addition, students are allowed to use a portion of a song in a multimedia class project. using the entire song would not be acceptable, not is it legal to "file share" [allowing the students to download songs for their own personal use].

Using Musical Excerpts

  • Scenario: A teacher wants to take excerpts from six musical works to compare differences in a passage performed by different groups. The works were obtained legally and no licenses were signed. Is it a fair use for the professor to make this recording for use in classroom teaching?  
  • Fair Use: The purpose of the copying is instruction, not profit. Based on the first factor, the use would be fair. The works are highly creative, however, so the second factor weighs against fair use. Only small portions are being used. In this case the third fair use factor is met. There is little evidence that the copying, given its extent and purpose, would have any market effect. The issue of market effect is actually lessened since two of the other three factors are met. Unless there is a comparable commercially available recording, this would be a fair use.

Playing Music Over the PA System

  • Scenario: Our coaches want to play a DVD of video clips set to music from the past season's games at the Sports Banquet. If we don't add music to the DVD itself, but play a CD of the music during the show, would this be permissible under Fair Use Guidelines?
  • Fair Use: No. Only face-to-face teaching situations qualify for Fair Use exemptions. In this case the presentation would be for entertainment purposes and would be considered a public performance.

  • Fortunately, the Omaha Public Schools purchases a yearly ASCAP license which allows schools to play music onver intercoms and PAs for events held on school property. This only covers ASCAP artists.

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Las Escuelas Públicas de Omaha no discriminan basados en la raza, color, origen nacional, religión, sexo, estado civil, orientación sexual, discapacidad , edad, información genética, estado de ciudadanía, o estado económico, en sus programas, actividades y empleo, y provee acceso equitativo a los “Boy Scouts” y a otros grupos juveniles designados. La siguiente persona ha sido designada para atender estas inquietudes referentes a las pólizas de no discriminación: El Superintendente de las Escuelas, 3215 Cuming Street, Omaha, NE 68131 (531-299-9822).