It Starts with Fair Use
Fair use is part of the copyright law. It should be a well-thought reason for copying, not an excuse. Fair use of a copyrighted work can be used for criticism, comment, news reporting, teaching, scholarship, and research. Even with these permissions, not every use in education is a fair use. If the copying is not specifically prohibited in the copyright law, it MAY be allowed under fair use.
There are no legal rules about how many words, notes, or minutes can be used. Fair use was meant to be flexible. You have to make good decisions based on a careful study of the circumstances. Use the four criteria listed below to decide if the copying is a fair use. All four of the criteria must be met.
- Purpose and character of the use (nonprofit, educational, etc.)
- Nature of the copyrighted work (factual, creative, published, etc.)
- Amount to be copied in relation to the whole • Effect of the use upon the potential market for or value of the work
Here are some basic questions to help you decide whether the copying is a fair use.
- Is the work copyrighted at all?
- How do you plan to use the work?
- Is the work covered by a license?
- Does the law contain a specific exception allowing your use?
- Will you need permission from the copyright holder?
- Will you be able to clearly explain (to the teacher or principal) how you decided the copying was a fair use?
Questions & Answers
Q. What is copyright?
A. The U.S. Copyright Law promotes creativity and protects the rights of creators and users of information. Copyright protection is automatic as soon as composers, playwrites, authors, photographers, artists, sculptors, illustrators, etc. create a work in a tangible form.
The copyright owner has these five rights:
- Reproduce the work
- Prepare derivative works
- Perform the work
- Display the work
- Distribute the work
Q. Why is copyright important?
A. It’s the law. Copyright protects the rights of the person who composed the music, wrote the book, developed the computer code, produced the video, created the website, or designed the CD cover. It allows the copyright owner to decide how, when, and where their work can be reproduced and used.
Q. Are copyright and plagiarism the same thing?
A. They’re related. Plagiarism is taking someone else’s work (even a small portion) and passing it off as your own. It’s possible to plagiarize from a work that is in the public domain.
Q. As a student, isn’t everything I copy fair use?
A. Not really. Students need to follow the copyright law and be responsible users of information. How would you react if you wrote a song or created a video that someone used without giving you credit—or distributed it without paying you?
Q. What’s public domain?
A. Some works can be copied because the copyright has expired or the works were placed in the public domain. Factual information is in the public domain, so a student can use facts that are published in a copyrighted work. The unique expression of the facts is copyrighted, not the facts themselves.
Q. What is Creative Commons?
A. This license makes it easier for people to share their work and allows others to build upon their work. The creator decides what is allowed: freely used, limited copying, shared, or remixed (http://creativecommons.org).
Q. So how do I know what’s copyrighted?
A. Assume that a work is copyrighted even if the word “copyright” or the © isn’t there. Copyright is established as soon as the work is in a “tangible form.” Copyright lasts for the life of the author plus 70 years.
Q. If I buy a CD, book, DVD, video game, sheet music, or song, doesn’t that mean I own the copyright?
A. No. What you have is a lawfully made copy. The copyright owner still has the five exclusive rights: reproduce the work, create a derivative work, perform and display the work publicly, and distribute the work.
Q. What happens if I violate copyright?
A. It depends on the intent, what was copied, how much was copied, and how the copies were used/distributed. Violations can affect grades and academic status. Legal penalties range from a cease-and-desist order to monetary fines to lawsuits. Copyright infringement can be serious and expensive.
General Copyright Guidelines
These guidelines are not part of the copyright law and do not have the force of law. Look to the copyright law, fair use, and licensing when deciding whether to copy.
Various professional organizations and companies wrote these guidelines. Many think the guidelines are too restrictive. They are not meant to be the standard for copying decisions. For example, it’s possible that copying 30% or 100% of a work could be a fair use. They are included here as a starting point for discussion.
- Students may use portions of copyrighted work in multimedia projects or use them in a portfolio (i.e. college or job interview).
- Students can’t make or distribute additional copies without permission.
- The opening screen should include a statement that certain materials are included under fair use and educational multimedia guidelines, and further use is restricted.
- Get copyright permission during the creative process if it might be shown beyond the classroom (i.e. Internet, competition, public performance).
- Credit sources and include full bibliographic information.
- You can copy up to 10% or 3 minutes, whichever is less, of an individual program.
- Look at the licensed online database permissions.
- Copying an entire video is probably a violation because it may be copying to avoid purchase.
- You can copy up to 10% OR 1,000 words, whichever is less, of a novel, story, play, or long poem.
Music, lyrics, and music video
- Can copy up to 10%, but no more than 30 seconds.
- Can make alterations (note that a change was made).
- Don’t change the basic melody or the fundamental character of the work.
Illustrations, cartoons, photos
- No more than 5 images from a single artist or photographer.
- No more than 10% or 15 images from a collection, whichever is less.
- Can make alterations (note that a change was made).
Books and Periodicals
- You can make single copies of a chapter, magazine or newspaper article, short story, essay, poem, chart, graph, diagram, drawing, cartoon, or picture.
- Short works such as children’s books are often less than 2,500 words—copy excerpts of 10% or two pages.
- Copies of excerpts may be made if less than 10% of the whole and isn’t a performable unit such as a selection, movement, or aria.
- Purchased printed music can be edited or simplified if the fundamental character of the work is not distorted or the lyrics altered (or added if none exist).
- A single copy of a performable unit can be made if it is out of print or unavailable except in a larger work. It can’t be used for performance.
- You can’t copy to avoid purchase.
This is a summary of the U.S. copyright law (Title 17) and copyright guidelines. This handout does not constitute legal opinion. It is intended to be a general discussion and not a definitive analysis of copyright.
Copyright: Brief Notes for Educators and Students by Grantwood AEA is licensed under Creative Commons Attribution-No-Derivatives. Download the pdf version here.