Copyright Clarity

© opyright © larity
FAIR USE FOR EDUCATORS & STUDENTS

Spiro Bolos
Afﬁliated Faculty
Media Education Lab @ Temple University
boloss@nths.net

“We’re changing what it would mean to
be a creator just at the time that
technology is enabling anybody to be a
creator. So, just when it matters most,
the law steps in and destroys the
opportunity...”
— Harvard Law Professor Lawrence Lessig

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! The Media Education Lab
(Renee Hobbs, Temple University)

! The Program on Information
Justice and Intellectual Property
(Peter Jaszi, Washington College of Law:
American University)

! The Center for Social Media
(Patricia Aufderheide, School of
Communication: American University)

! Action Coalition for Media Education
! Media Education Foundation
! National Association for Media Literacy
Education

! National Council of Teachers of English
! Visual Communication Studies Division
of the International Communication
Association

! Jamie B. Bischoff
! Robert W. Clarida
! Kenneth D. Crews
! Michael J. Madison
! Jennifer Urban

! The MacArthur Foundation
! The Ford Foundation

“To promote the Progress of Science
and useful Arts, by securing for limited
Times to Authors and Inventors the
exclusive Right to their respective
Writings and Discoveries” (Section 8).

“Fair use is the right to use copyrighted
material without permission or
payment under some circumstances
— especially when the cultural or
social beneﬁts of the use are
predominant” (“Code” 1; emphasis added).

“That authors and inventors beneﬁt
from copyright is a side effect of
encouraging the dissemination of
knowledge, and not a direct intent of
copyright” (Carrie Russell, Complete Copyright).

“In fact, as the Supreme Court has pointed
out, fair use keeps copyright from
violating the First Amendment” (“Code” 5).

“Copyright Law Balances Rights of
Owners and Users” (Hobbs 20).

OWNERS USERS

The Four Factors
Section 107 of the COPYRIGHT LAW of 1976

1. The Nature of the Use
2. The Nature of the Work Used
3. The Extent of the Use
4. Its Economic Impact (6)

Professor Eric Faden, Bucknell University

“A Fair(y) Use Tale”

“Fair use is too unclear
and complicated for me;
it’s better left to lawyers
and administrators.”

“Educators know best what they
need to use of existing copyrighted
culture to construct their own lessons
and materials....Once they know, they can
tell their lawyers and administrators”
(15; emphasis added).

“Educators can rely on
‘rules of thumb’
for fair use guidance.”

“The guidelines are negotiated resolutions
of conﬂicts regarding fair use, and yet they
are often presented as standards to which
one must adhere in order to remain within
the law.”

— Kenneth Crews
“The Law of Fair Use and the Illusion of Fair-Use Guidelines”

“...in fact the guidelines bear little
relationship, if any, to the law
of fair use” (emphasis added).

these guidelines were "not intended to limit the
types of copying permitted under the standards
of fair use under judicial decision and which
are stated in Section 107 of the Copyright
Revision Bill. There may be instances in which
copying which does not fall within the
guidelines stated [above] may nonetheless be
permitted under the criterion of fair use."

“School system rules are
the last word of fair use
by educators.”

“Rather than following a speciﬁc
formula, lawyers and judges
decide whether an unlicensed use of
copyrighted material is ‘fair’ according
to the ‘rule of reason’” (6; emphasis added).

“Fair use is just for critiques,
commentaries or parodies.”

“Transformativeness, a key value
in fair use law, can involve modifying
material or putting material in a new
context, or both” (15; emphasis added).

“If I’m not making
any money off it,
it’s fair use.”

“...some more public uses may be
unfair even if no money is
exchanged” (16; emphasis added).

“Employing fair use is too much trouble;
I don’t want to ﬁll out any forms.”

“But, if you choose, you may...still claim
fair use if your request is refused or
ignored. In some cases, courts have
found that asking permission and then
being rejected has actually enhanced
fair use claims” (16).

What a creative way to
incorporate media literacy into
the social studies curriculum! As I
look at the piece, it seems that
your students have demonstrated
their understanding of the
content by transforming the “This
American Life” segment into a
new work through their
imaginative multimedia slides.

The educational value of this
assignment is based, in fact, on
the careful relationship between
the audio and the images....
[W]here you have asked
permission and been refused,
your decision about distribution
rests completely on your comfort
level about whether this use
indeed a fair use....

I think it’s a great example of how,
sometimes, we use a whole piece of
media in our work with students —

and for the speciﬁc learning objective,
we need to use the whole piece.

“Fair use could get me sued.”

1. “That’s very, very unlikely” (17)
2. “Cease and Desist” letter

Case Studies

Seeking Repurposing Angry Email
Permission Google Images Response
4:49 5:49 5:04

Best Practices
1. The use of the copyrighted work is
transformative.
2. The kind and the amount of the copyrighted
work used is appropriate to accomplish
the legitimate purpose.
3. The author of the copyrighted work is
cited, whenever possible.

newspaper clippings
=
digital ﬁles

“When a user’s copy was
obtained illegally or in bad
faith, that fact may affect
fair use analysis.” (9)

Recorded
over-the-air
broadcast

eg., “licensed for home [or private or
educational or noncommercial] use only”

Untested Case Study
“PERILOUS TIMES: Civil Liberties in Wartime”
American Studies Group Project

Reinforcement Videos
What is Cost of
Copyright? Copyright
Confusion
3:41 5:38

User’s Fair Use
Rights for Media
Literacy
3:10 6:26

• Renee Hobbs: http://api.ning.com/ﬁles/
3xBu0cBSMiiG-qw0tbU3knTMNteLjB8X-
xqouKhJi40_/ReneeProfessional2009.jpg

• Hobbs, Jaszi, Aufderheide: “How Media
Literacy Educators Reclaimed Copyright
and Fair Use”, International Journal of Media
and Learning, vol. 1, No. 3

• Kutiman, “The Mother of All Funk Chords”:
http://thru-you.com/

• Copyright Criminals: http://
www.copyrightcriminals.com

• “Copyright and Fair Use Guidelines for
Teachers”: http://www.halldavidson.net/
chartshort.html

• Creative Commons Logos: http://
www.creativecommons.se/images/
highquality.jpg

• Balance: http://blog.wineenthusiast.com/wp-
content/uploads/2008/12/balance.jpg

• Supreme Court: http://www.flickr.com/
photos/vgm8383/2044910536/

• U.S. Constitution: http://www.archives.gov/
exhibits/charters/charters_downloads.html

• Courtroom Gavel: http://www.flickr.com/
photos/63126465@N00/117048243

• Flexibility: http://www.flickr.com/photos/
khalid-almasoud/474399662/

• Robin Williams: http://images.starpulse.com/
Photos/Previews/Dead-Poets-Society-04.jpg

• Edward James Olmos: http://
pantskicker.com/wp-content/uploads/
2008/01/0standanddeliverbwcrop.jpg

• Michelle Pfeiffer: http://
images.allmoviephoto.com/
1995_Dangerous_Minds/
1995_Dangerous_Minds_036.jpg

• The Wire: http://www.hbo.com/thewire/img/
episodeguide/season04/ep38_04.jpg

• Hilary Swank: http://
www.independentcritics.com/images/
freedom%20writers%20SPLASH.jpg

• Kevin Kline: http://videodetective.com/
photos/633/026626_27.jpg

• Jack Black: http://fraser.typepad.com/
a_girl_a_gun/images/
School_of_Rock_01.jpg

• Kindergarten Cop: http://
i153.photobucket.com/albums/s229/
longjohnjohn05/arnold1.jpg

• Crews, Kenneth: “The Law of Fair Use and
the Illusion of Fair-Use Guidelines,” The
Ohio State Law Journal 62 (2001): 602–700

• Parthenon Detail Replica: http://
www.ﬂickr.com/photos/brent_nashville/
2455550267/

• “in y’own mix”: "pirøbølo", Copyright
Criminals Contest. http://ccmixter.org/
copyrightcriminals/people/spirobolos

• “The Next Step”: Trifonic, Copyright
Criminals Contest. http://ccmixter.org/ﬁles/
trifonic/4163

• Time Magazine (Obama cover): http://
www.flickr.com/photos/tonythemisfit/
3142216126/sizes/l/

• Reel-to-reel: http://www.flickr.com/photos/
dmitry/531285082/

• “HITECH” photo: http://www.flickr.com/
photos/tsevis/2282944393/in/
set-72157608680934688

• “Klutz Clippings”: http://www.flickr.com/
photos/tantrum_dan/2344581860/

• “VHS’sss”: http://www.flickr.com/photos/
33917831@N00/1018612301/

• Newspaper article: http://www.flickr.com/
photos/44789431@N00/52308403/

• DVDs: http://www.flickr.com/photos/
23327787@N08/2348565675/

• Blockbuster Video: http://www.flickr.com/
photos/40736030@N00/51415142/

• Yo-Yo Ma: http://www.flickr.com/photos/
21651009@N00/2606693331/

• Apollo 13 DVD: http://www.flickr.com/
photos/clith/153418933/

• Pirate: http://www.flickr.com/photos/
83135223@N00/285200741/

www.mediaeducationlab.com
www.centerforsocialmedia.org
www.spirobolos.com

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