"Fair Use" Guidelines for Educators

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As an educator, you may have heard about the concept of fair use. The fair use doctrine is a set of guidelines in Title 17, Section 107 of the United States Code (U.S. copyright law) that allows people to use other people’s copyrighted, original works in certain cases without worrying that they’re infringing on the content owner’s copyright.

Common examples of fair use include:

Criticism

Comment

News reporting

Teaching

Scholarship

Research

Four factors for fair use

Copyrighted works can be anything from songs to video clips to screenshots of video games. If you’re thinking about using someone else’s original copyrighted work in your classroom, you need to consider four factors to evaluate whether your plans might constitute fair use:

1.    The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit education purposes

o    Have you taken the copyrighted work and transformed it or added value to it by your use of new expressions, meanings, insights, or understandings? (If so, that’s a good thing.)

o    Why do you want to someone else’s copyrighted work?

§  Is it to illustrate a point for educational purposes? To report on something going on in the world? (If so, good!)

§  Or are you doing so for entertainment purposes? (If so, tread carefully.)

o    Are you intending to make money off of that copyrighted work yourself? (If so, again be careful.)

2.    The nature of the copyrighted work

o    Is the copyrighted work fictional or nonfictional?

o    Is the copyrighted work published or unpublished?

o    Did the author of the original copyrighted work indicate that his / her original work fell under a Creative Commons license or was public domain? (This may give you more freedom to reuse the work.)

o    Did the author of the original copyrighted work extend a license for others to use that work in a commercial or noncommercial setting? (Likewise, this may give you more wiggle room.)

3.    The amount and substantiality of the portion used in relation to the copyrighted work as a whole

o    How much of the original copyrighted work do you want to use? The entire thing? Or just a portion? If so, how big a portion? (Smaller portions are generally safer.)

o    What portion of the value of your work will stem from the original copyrighted work vs. your new work? (The more value you bring, the better.)

4.    The effect of the use upon the potential market for, or value of, the copyrighted work

o    Does the way you plan to use the copyrighted work detract from the ability of the copyrighted work to perform or earn money for the copyright owner? (If so, that’s a problem.)

o    Does it detract from the copyright owner’s ability to track the performance of the original copyrighted work or use it in other ways? (Again, that’s a problem.)

Implications for Educators
What does all this mean for educators? Educational use of copyrighted material, including YouTube videos,
is a commonly accepted example of fair use. Keep the four factors of fair use in mind and you should be 
good to go. Again, these aren’t firm guideposts, but you can use them as a reference when considering whether
you have a valid fair use argument.

Good luck!