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Heather VanMouwerik is a Ph.D candidate in Russian History at the University of California, Riverside. You can contact her via Twitter or her website.
When I close my eyes and try to imagine what a Campbell’s Soup can looks like, I am not sure if what I see is the actual object or one of Andy Warhol’s famous works. These iconic cans, regardless of their importance to modern art and American history, are a tangle of popular culture, artistic expression, and copyright litigation, all of which knot around the concept of fair use.
Fair use is a designation within US copyright law, which recognizes that certain people under certain circumstances are allowed to use copyrighted materials without obtaining permissions or licenses in advance. Whereas Creative Commons makes materials available with minimal protections or none at all, fair use provides a few legal exemptions for copyrighted materials. There are limits to these exceptions, but they cover most forms of “criticism, comment, news reporting, teaching, scholarship, and research.”
If Campbell’s had decided to sue Warhol for copyright infringement, his defense would have most likely been based on fair use. He may have argued that his appropriation of popular culture constituted a criticism of it and that his intentions were to create art (not cash). Although tenuous, given Warhol had to settle a later copyright dispute out of court, this example illustrates the flexibility of the doctrine of fair use.
Although we, as graduate students, frequently employ materials under this provision, I find we rarely take time to understand exactly what it entails. I have come across professors and other instructors who span the gamut on this issue. Some seem to think that anything is covered under fair use, like a copyright carte blanche to do what they want with others’ materials; others interpret the flexibility as a constant threat looming over them, so they avoid utilizing copyrighted materials at all costs.
As usual, the truth lies somewhere in between. Instead, I prefer to see the fair use doctrine as a safeguard against accidental plagiarism, recognition for the rights of the original author, and protection against copyright infringement.
Because each situation is slightly different and technology far outpaces legal code, the doctrine of fair use is meant to be flexible and particular to most situations. When using copyrighted material, there are four questions you need to ask yourself to determine if you are on the right side of the law. Note: none of these guidelines are meant to be taken individually. Instead, collectively, the answers should give you a general sense of whether or not your fair use claim is valid.
1. Why are you using this material? Although there is a general reprieve for educators and scholars, some materials you use may still be under copyright. If you are using the materials in your class, they need to be integral to the course content and only shared with your students. If you are using the materials in your research, then you have to ensure that it is not making any profit from the perspective of the courts. True, academic books and websites are not moneymakers, but in the outside world people commonly publish books and maintain websites to earn money. This nuance is not represented in the copyright code, so make sure you look at fair use from an outsider’s perspective.
2. What sort of material are you using? This guideline allows a court to take into account the author’s intention in creating the original item. If something was created as an artistic work or educational tool, then it is easier to claim fair use. But, if something was created specifically to earn money or to promote a business, then it is more difficult to claim it. This guideline gives weight to the idea that art is meant to inspire artists, educational resources are meant to teach, and a company’s logo is meant to sell products. The former two, when used to those ends by others, are keeping with the intent of the material, but using the latter would be more difficult to justify. Is this a fuzzy principle? Yes! Of course artists need money to survive and of course there are examples of courts siding with them on this issue; however, it is important to remember that fair use regulations take intent into account.
3. How much of the material do you intend on using? The less of something you use, the more likely you are to be able to claim fair use. A minute-long clip of a film is more likely to be fair use than the whole film, but a ten-second clip is even more likely to be fair use. The general lesson here is to use as little of something as possible.
4. Are you leaving a lasting effect on the original material? This guideline allows the courts to evaluate whether or not your use of the material is changing its market or earning potential. The best example of this would be Napster, the peer-to-peer file sharing service that was popular in the late 1990s, which was successfully sued for infringement of copyright (among other charges). Representatives of the music industry argued, in part, that file sharing occurring via Napster displaced the market for licensed music. Basically, they said that no one was buying CDs because they were downloading their music for free. On a smaller scale, this is why even educators cannot scan an entire book and make it available to students online. Books earn money through sales, and giving them to students in their entirety would substantially decrease the market for that book and potentially inspire other instructors to do the same. This guideline applies to your particular use of the material, but also the material’s market if everyone used it in the same way you did.
This is all great in the abstract, but what does it mean for you and your work? Below are a few fair use scenarios you might find yourself in:
1. Showing a Film to Your Class: Several times over the course of being an instructor, I have used class time to show a movie, like Paths of Glory. According to most film copyright licenses, this would qualify as a public performance of the film and would require me to get permission and pay before screening it. And, yes, it is problematic for my fair use claim to be showing the film in its entirety. However, this is where the educator exemption comes into play. Because the content of the films are directly related to the content of my course and my students are being evaluated on it (i.e. using it for a writing assignment, the basis for participation points, or as a question on an exam), I am demonstrably using the film for educational purposes. In addition, the library purchased the films and only my students are present at the screening, insuring that the economic interest of the film’s copyright holders remained intact.
2. Distributing PDF Documents to Your Students: Like I mentioned before, copyright law moves slower than technology, so sometimes it fails to take into account issues that new technology brings. The existence of PDFs is one example of this. Although most textbook publishers allow instructors to copy and distribute to their classes small sections (think a chapter or less) of their books under fair use, the same provision does not necessarily apply to creating PDFs and posting them online for students to access. If, for example, you posted the document on your public course website, then anyone could have access to it. This breaks several aspects of the fair use doctrine, especially the provisions for use and the larger effect on the author’s future earnings on their work. What you can do, however, is post the PDFs to a closed network, one which is exclusive to your students like Blackboard or another learning platform. I like the freedom of public websites for courses, but I always post copyrighted materials on the private learning platform. For instructors who do not have access to these private systems, you could create invite-only Google Docs or files on Dropbox to protect your fair use materials.
3. Sources in Your Dissertation: For a lot of students, their dissertation will live on only in a handful of copies at the library. Sources that you excerpt or images that you use in it will usually qualify as fair use, and you do not need to worry about getting official permissions. However, for an increasing number of us, dissertations go on to be published by our universities online somewhere. While this is great for getting our work out to other scholars, it also means we need to pay more attention to getting the official licenses to our sources. Luckily most academic libraries, research institutions, and special collections offer fair use permissions for just such occasions. All you need to do is apply to the institution, being specific about how the materials are being used, and they confirm that your work adheres to fair use. Most US universities have very clear copyright information available alongside their guidelines for dissertation submission, so make sure your check those out. Also, as a reminder, even if you were given permission to use something under fair use in your dissertation, that same license will no longer apply when you turn your research into a book or article.
Those are just a few examples to give you a sense of the fair use exemption to copyright law. Although it is confusing, it is important to do your best to stay within the law. Not only does it set a good example for your students, but it could save you a lot of headaches in the future.
Need more guidance? Check out these helpful resources:
- Columbia University’s Fair Use Checklist
- Using Images: Copyright & Fair Use from MIT
- Reproduction for Educators from the US Copyright Office
[Image by Flickr user Ben Mason and used under the Creative Commons license.]