fair use
CO M 5 5 8 D IGITA L M E D IA LAW & PO LICY
FILIZ EFE –UW MCDM – Spring 2009

INTRODUCTION
 As a digital media graduate student and a
visual content creator working at an
academic institution, I face daily the
dilemma of whether a piece of visual
content is eligible for fair use or not.
 Therefore, I want to research the topic of
“fair use of copyrighted materials”, the
conditions under which users are allowed to
publish, distribute, or reproduce
copyrighted or trademarked material
without permission, for certain purposes.
 I am particularly interested in examining the
conditions to determine whether a piece of
visual content is eligible for fair use or if
permission must be obtained.

FAIR USE OF COPYRIGHTED MATERIALS…
WHAT IS FAIR USE?:
 Fair use is a doctrine in the United
States copyright law (Copyright Act -
Section 107 ) that allows limited use of
copyrighted material without requiring
permission from the rights holders.
 It is an affirmative defense, not a right!
In litigation on copyright infringement,
the defendant bears the burden of
raising and proving that the use was
\"fair\" and not an infringement.
 Determination of Fair Use is often very
fact specific

ARGUMENT
NOT
FAIR USE! FAIR USE!
I will reference a specific significant case in an
attempt to more clearly understand the
flexible principles of fair use and to
demonstrate the different possible arguments
on both sides.

USING A RANDOM IMAGE ON AN EDUCATIONAL FLYER

STORY OF THE CASE
 I have been asked to design a flyer to promote one of UW’s educational
summer camps for high school students.
 The camp was about climate science and video production so the first
thing I did was searching an image with the keywords globe and video!
globe, video

STORY OF THE CASE

STORY OF THE CASE
 …And I found an image via google search that qualifies for my flyer design.

FAIR USE OR NOT TO USE?…
 The camp is not for free, so is it commercial or educational?
 Can I also distribute these flyers off-campus?
 What if I use the same image on web?
 How flexible are the principles of fair use online and offline?
…DO WE NEED PERMISSION?…
In determining whether the use made of a work in this
case is a fair use, we need to consider following
questions and factors:

FIRST STEPS 1. IS THE WORK PROTECTED?
Copyright does not protect and
we may freely use:
 Works that lack originality
 Works in the public domain
 Freeware
 US Government works
 Facts
 Ideas, processes, methods,
and systems described in
YES!
copyrighted works

FIRST STEPS 2. DO YOU WISH TO EXERCISE ONE OF
THE OWNER'S EXCLUSIVE RIGHTS?
 Make a copy (reproduce)
 Use a work as the basis for a new work (create a
derivative work)
 Electronically distribute or publish copies
(distribute a work)
 Publicly perform music, prose, poetry, a drama, or
play a video or audio tape or a CD-ROM, etc.
(publicly perform a work)
 Publicly display an image on a computer screen YES!

FIRST STEPS 3. IS YOUR USE EXEMPT OR EXCUSED
FROM LIABILITY FOR INFRINGEMENT?
 If an exemption does not excuse infringement and eliminate the need to
ask permission or pay fees to exercise the owner's rights, you need
permission.
 Even if all or part of a work is not protected by copyright law, it may be
protected by other laws.
 For example, “I let others copy, distribute, display, and perform my work
- and derivative works based upon it - but for noncommercial purposes
only.”
NO!

FOUR FACTOR “FAIR USE” TEST
PURPOSE and character of the use;
NATURE of the copyrighted work;
AMOUNT of the portion used; and
EFFECT of the use upon the potential market
for or value of the copyrighted work.

FACTOR 1 - PURPOSE
FACTOR 1
the purpose and character of the use
- Criticism
- Nonprofit - Commentary
- Newsreporting
- Educational - Commercial
- Parody
- Personal - Otherwise
\"transformative\" use
FAIR USE NEEDS PERMISSION

FACTOR 1 - PURPOSE
 Commercial v. Non-commercial is the heart of this analysis: Is the purpose
and character of this flyer educational or commercial?
 Even though the purpose of this summer camp is educational, it is not for
free and the use of flyer is not for critics. It is for marketing. This image has
no function to be used as a training tool.
 Therefore, we can hardly claim that the use of the image is for educational
purposes. We cannot also define it as personal or non-profit.
 IT IS MORE LIKELY TO BE ON THE “NEEDS PERMISSION” SIDE ATOUR FIRST
FACTOR FAIR USE BALANCE TEST!

FACTOR 2 - NATURE
FACTOR 2
the nature of the copyrighted work
- Fact - A mixture of fact and - Imaginative
imaginative
- Published - Unpublished
FAIR USE NEEDS PERMISSION

FACTOR 2 - NATURE
 Fact v. Fiction (more public interest in publishing
facts) Use of works with high “public interest” are
given more latitude
 Published v. Non-Published (the author is given
deference for the first public appearance or the
decision to make no public appearance of a work)
 IN OUR CASE, THE NATURE OF THE IMAGE WE
FOUND VIA GOOGLE SEARCH IS PUBLISHED WORK.
THEREFORE, IT IS MORE LIKELY TO BE IN FAVOR OF
“FAIR USE”.

FACTOR 3 - AMOUNT
FACTOR 3
the amount of the portion used
- More than a small
- Small amount
amount
FAIR USE NEEDS PERMISSION

FACTOR 3 - AMOUNT
 No “Magic Amount.”
 The analysis is not only
how much is taken, but
also what is taken;
 did you take the “heart” of
the work?
 IN OUR CASE, WE ASSESS THE QUANTITY OR PERCENTAGE OF THE ORIGINAL
COPYRIGHTED WORK THAT HAS BEEN IMPORTED INTO OUR NEW WORK.
EVEN THOUGH A SMALL PORTION OF THE IMAGE IS USED IN THE FLYER, IT
ENTIRELY BUILDS ON THE FLYER ITSELF. THIS USE OF THE WORK WILL WEIGH
SOMEWHAT “AGAINST FAIR USE”.

FACTOR 4 - EFFECT
FACTOR 4
the effect on the potential market
- Original is out of print - Competes with the
- After evaluation of the or otherwise unavailable original
first three factors, the - No ready market for - Avoids payment for
proposed use is tipping permission permission in an
towards fair use - Copyright owner is established permissions
unidentifiable market
FAIR USE NEEDS PERMISSION

FACTOR 4 - EFFECT
 Does the use deprives the copyright owner of
income including both new or potential
market for the copyrighted work.
 IN OUR CASE, THE COPYRIGHT OWNER DOES
NOT SEEM LOSING MONEY BECAUSE OF THIS
USE, HOWEVER THIS DOESN’T GIVE THE
RIGHT TO USE THE IMAGE WITHOUT
PERMISSION: OUR CASE STILL WEIGHS MORE
ON “NEEDS PERMISSION”.

THE USE OF DIGITAL IMAGES
“The use of visual images poses distinct challenges for applying fair use. The
use will most likely require the entire work, a fact that most often weighs
against fair use.A photograph may also be a highly creative work, which also
generally weighs against fair use. Moreover, a single photograph may involve
layers of legal claims. The photographer may hold the copyright, but the
photograph may capture the image of a painting or other copyrighted work, or
of a sign that has trademark protection, or of a person who has rights of
privacy or publicity. The image may be from a book or slide collection, to
which a publisher other party holds a compilation copyright. These
circumstances give rights to multiple claimants with respect to one visual
image.”
- Kenneth D. Crews (2001)

 Fair use depends on a lot of variable factors which seems to have a large
grey area in law practice.
 The best way to deal with the use of copyrighted materials issue is to
assess the cost-benefit of that use, before copying, modifying, displaying,
performing or distributing another’s work.

IS IT FAIR USE?…
 After considering the three step
right-defining questions and four
factor test, using this image on
our flyer…
IS IT FAIR USE?

IS IT FAIR USE?…

FAIR USE AND PROFESSIONAL COMMUNITIES
 Fair Use For Documentary Filmmakers Documentary Filmmakers'
Statement of Best Practices in Fair Use
 Media Literacy Educators Code of Best Practices for Fair Use in Media
Literacy Education

COMMON MISUNDERSTANDINGS
 Any use that seems fair is fair use.
 No liability if its an adaptation.
 No liability if there is a disclaimer.
 It's okay to quote up to 300 words.
 No liability if I can’t find the owner.
 Noncommercial use is invariably fair.
 It's copyrighted, so it can't be fair use.
 If you're selling for profit, it's not fair use.
 No liability, I found it on the Internet .
 If it's not fair use, it's copyright infringement.
 You can deny fair use by including a disclaimer.
 If you're copying an entire work, it's not fair use.
 Acknowledgment of the source makes a use fair.
 Fair use interpretations, once made, are static forever.
 Strict adherence to fair use protects you from being sued.
 The lack of a copyright notice means the work is public domain.

REFERENCES
 American University Center for Social Media, retrieved June 10, 2009 from
http://www.centerforsocialmedia.org/resources/publications/statement_of_best_pract
ices_in_fair_use/
 Baker, Kraig L. (2009). 2009 Digital Media Law & Policy - Day 6.PPT
 Cornell University Law School (n.d.), US Code Collection, Retrieved April 29, 2009 from
http://www4.law.cornell.edu/uscode/17/107.html
 Crews, Kenneth D., (2001) The Law of Fair Use and the Illusion of Fair-Use Guidelines,
Ohio State Law Journal [Vol. 62], retrieved on June 10, 2009 from
http://www.centerforsocialmedia.org/files/pdf/crews.pdf
 Fair Use (June 11, 2009). In Wikipedia, The Free Encyclopedia. Retrieved on June 12,
2009 from http://en.wikipedia.org/wiki/Fair_use
 The University of Texas System (n.d.), Fair Use of Copyrighted Materials, retrieved April
29, 2009 from http://www.utsystem.edu/OGC/intellectualProperty/copypol2.htm

IMAGE CREDITS
 Slide 1 – image source Fraser Smith (camera shake)
http://www.flickr.com/photos/glenelg/1823218729/
 Slide 3 – image source whitperson / Marc Whitman (obamicon)
http://www.flickr.com/photos/whitperson/3255613925/
 Slide 10 – image source TilarX (Creative Commons Swag Contest 2007_2)
http://www.flickr.com/photos/tylerstefanich/2117607887/
 Slide 17 – image source Ricardo Martins (Science Fiction Museum)
http://www.flickr.com/photos/redneck/186228783/
 Slide 17 – image source Ricardo Martins (Science Fiction Museum)
http://www.flickr.com/photos/redneck/186228784/
 Slide 19 – image source Dan Queiroz (Crystal Ball)
http://www.flickr.com/photos/nyllows/3475906797/
 Slide 22 – image source majya00 (_3297429)
http://www.flickr.com/photos/majya/3393881281/

fair use
CO M 5 5 8 D I GI TA L M E D I A L AW & PO L I C Y
S PR I N G 2 0 0 9
This is a final course project by Filiz Efe,
who is a graduate student in the University of Washington
Master of Communication in Digital Media