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Fair use of copyrighted materials

Intro | Liability | First steps | Rules of thumb | Four-factor test | Permission
What is fair use?

We would all appreciate a clear, crisp answer to that one, but far from clear and crisp, fair use is better described as a shadowy territory whose boundaries are disputed, more so now than ever, since it applies in the online environment.

Why is fair use like this, and does it have to be this way? Are there alternatives to the vagueness of the "four factor fair use analysis," to fear of lawsuits and frustration with uncertainty? Should we just throw up our hands and say, "What's the use?" After all, many legal scholars, politicians, copyright owners and users and their lawyers agree that fair use is so hard to understand that it fails to provide effective guidance for the use of others' works today. Well, take heart -- there are alternatives that apply in many cases, but nevertheless, fair use still plays as important a role today, and we really must understand and rely on it in certain circumstances.

One alternative is to rely on guidelines. You've probably heard of these in various contexts such as classroom copies, off-air recording, and multimedia works. I have reviewed all the guidelines and have decided to suggest a different approach to protecting faculty, staff and students from the chance of infringing while supporting our exercise of fair use rights. I call the approach "Rules of Thumb" for the fair use of copyrighted materials, and, like the guidelines from which they are in some cases derived, the Rules of Thumb are tailored to different uses of others' works. But unlike the guidelines, they are short, concise, and easy to read and follow. And they are part of a larger strategy to meet our needs for permission when fair use is not enough. This larger strategy relies on several other alternatives to fair use that reduce our need for permission -- licensing comprehensive access to works and actively managing the copyrighted works created on our campuses for the benefit of our university community. Developing and expanding these alternatives encompasses some of the most interesting and innovative work going on in copyright today. Alternatives such as Creative Commons licensing depart from the bloated copyright that has begun to impede more than it facilitates the creation of new knowledge.

No one strategy for legally using others' works is enough today. Your library licenses tens of millions of dollars of academic resources for your use every year. Additionally, all of us have come to rely on implied licenses to make reasonable academic uses of the works we find freely available on the open Web. If it appears that you can't rely on licensed materials, or freely available Web materials, getting permission is becoming easier every day. The Copyright Clearance Center now offers both transactional (case-by-case) licenses and subscription licenses to colleges and universities. Where permissions are easily available, our reliance on fair use to merely reproduce massive numbers of copies is weak, even for educational uses. Still, there are many circumstances where none of these alternatives works for the use you want to make of another's work. For those circumstances, the Rules of Thumb will cover a certain amount of copying, modifying, displaying, performing or distributing. But if your use exceeds those boundaries, you'll need to use the four-factor fair use test to determine the real extent of fair use. If you are part of U.T. System, you may confer with me, Georgia Harper or follow our published procedures for making fair use determinations. There are many other excellent resources online providing guidance in the use of the four fair use factors. See, for example, IUPUI's Fair Use Checklist, UMUC's Copyright and Fair Use in the Classroom, on the Internet and the World Wide Web, University of Minnesota Libraries' Fair Use Analysis Tool, just to name a few.

Please keep in mind that the information presented here is only general information. True legal advice must be provided in the course of an attorney-client relationship specifically with reference to all the facts of a particular situation. Such is not the case here, so this information must not be relied on as a substitute for obtaining legal advice from a licensed attorney.

Individual liability for infringement

Basics

So don't throw up your hands and say, "what's the use." Consider your own liability for copyright infringement. Individuals are liable for their own actions. Copyright owners have sued and probably will continue to sue individuals. They will probably sue universities too, but that may not insulate the individual who took the allegedly infringing action from the full force of a lawsuit.

The penalties for infringement are very harsh: the court can award up to $150,000 for each separate act of willful infringement. Willful infringement means that you knew you were infringing and you did it anyway. Ignorance of the law, though, is no excuse. If you don't know that you are infringing, you still will be liable for damages - only the amount of the award will be affected. Then there are attorneys' fees...

There is one special provision of the law that requires a court to refuse to award any damages at all, even if the copying at issue was not a fair use. It is called the good faith fair use defense [17 USC 504(c)(2)]. It only applies if the person who copied material reasonably believed that what he or she did was a fair use - as would likely be the case if you followed your institutional copyright policy! If you qualify for this defense, it makes you a very poor prospect for a lawsuit. On the other hand, if you disregard sound advice about fair use, a court would be free to award the highest level of damages available. This makes someone who ignores policies a much better target for a lawsuit.

There is another problem if you ignore your institution's advice about fair use: In Texas, our Constitution and statutes may limit our ability to defend individual employees and students, but to the extent we can, the University of Texas (U.T.) System will defend you against a charge that your use of another's works is an infringement so long as you follow institutional policy and abide by the terms of any licenses that affect your rights to use others' works. If your activities violate these conditions, you will be personally responsible for your own defense. In other words, if you do not follow policies and any licenses that affect your rights to use others' works, U.T. System will not defend you. You will be on your own. This policy is likely the same in most states.

Using off-campus copyshops

You might think that giving your copying to a commercial (for-profit) copyshop would relieve you of liability for infringement, but it may not: It would depend on

Consider coursepacks: If your copying is not fair and the copyshop does not pay royalties, you could be liable for infringement along with the copyshop! Most copyshops today get permission and pay fees, and we suggest that you only use those that do (i) for any part of a coursepack that exceeds the U.T. System Rules of Thumb (on-campus shops) or (ii) for every part of a coursepack, even if some of it would be fair use under the Rules of Thumb (off-campus shops that comply with the law as it has been applied to commercial copyshops).

First steps

Answer these three questions to decide whether you need permission to use a copyrighted work.

1. Is the work protected?

Copyright does not protect, this Policy does not apply to, and anyone may freely use*:

The presence or absence of a copyright notice no longer carries the significance it once did because the law no longer requires a notice. Older works published without a notice may be in the public domain, but for works created after March 1, 1989, absence of a notice means virtually nothing.

The  rules for determining whether a protected work is in the public domain are set out in chart form by Lolly Gasaway. These rules are complex and somewhat hard to describe, partly because they have changed many, many times during the 20th century. The general rules (excluding anonymous works and works for hire) can be sumarized as follows:

Remember that some works are never protected at all! See the information at the beginning of this section for those works.

2. If the work is protected, has your campus already licensed rights for you to use the work?

3. Is the work available freely on the open Web, and therefor covered by an implied license?

All of us who place materials on the open Web do so with the knowledge that people will use our works in certain ways (downloading, making personal copies, sending copies to friends, etc.), and we would be unreasonable if we put our materials out there not intending that they be used in these ordinary and customary ways. This is the essence of an implied license. I put my materials out there and even though I don't "expressly" give you the right to do these things, the law creates an assumption that I must have intended to give you these rights. Most nonprofit, educational uses would likely be within the scope of what people expect when they place materials on the open Web. So, that's what we rely on when we use others' works that we find on the open Web -- an implied license. The scope of this license might be the same as or different from fair use, but it's good to know that we have both because one may not be broad enough in a particular case.

4. If you don't have express or implied rights, do you want to exercise one of the owner's exclusive rights?

5. 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, you may need to consider rights of privacy and publicity, ask permission to use a trade or service mark, or get a license to practice a patented process or system, but discussion of these rights and interests is beyond the scope of this Policy statement.

Specific (narrowly tailored) exemptions

Library's special rights

Our libraries are authorized to exercise special rights in addition to fair use. These rights are described in Section 108 of the copyright law and include:

Performances and displays in face-to-face teaching and distance education

Educational institutions and governmental agencies are also authorized by a separate copyright statute to publicly display and perform others' works in the course of face-to-face teaching activities, and to a lesser degree, in digital distance education. These rights are described in Sections 110 (1) and (2), respectively, of the Copyright Act. More information about the recent expansion of Section 110(2)'s rights for digital distance education may be found in The TEACH Act.

Fair use exemption -- rules of thumb

The Rules of Thumb apply to the following uses of copyrighted works:

If you need to make a more extensive use of another's work than suggested by the appropriate Rule of Thumb, or if there isn't an appropriate Rule of Thumb, use the four factor fair use test to determine whether the use is fair or requires permission.

Coursepacks

The Classroom Guidelines that were negotiated in 1976 can provide helpful guidance and we recommend that you read them.

1. Limit coursepack materials to

2. Include

3. Obtain permission for materials that will be used repeatedly by the same instructor
for the same class.

Displaying and performing other's works in distance education or Web-enhanced face-to-face

These Rules of Thumb are different from the others. For the most part, Rules of Thumb address making and distributing copies. Distance Learning raises these concerns too, but "public performance" is the focus of these Rules of Thumb. Section 110 of the copyright law authorizes educational performances and displays of entire works (like poems, plays, musical works and movies), but it significantly distinguishes between what can be performed in the classroom and what can be transmitted. This results in a "gap" in legal authority to perform certain works for distance learners. The CONFU Educational Fair Use Guidelines for Distance Learning apply fair use to fill this gap.

But the Distance Learning Guidelines only tackle fair use to perform and display others' works in two contexts:

They do not cover fair use of (performance of) others' works in online course materials. CONFU participants felt that these uses were so new that it was hard to even describe them, let alone describe fair use in this context. Nevertheless, the Guidelines can provide helpful guidance and we recommend that you read them.

Check Sections 110(1) and (2) before proceeding since they authorize considerable performance activity without any need to refer to these Rules of Thumb or the Guidelines. Also check any licenses acquired with materials purchased specifically for distance learning; they should include all the rights you will need to utilize them for that purpose, with no need to refer to these Rules of Thumb or the Guidelines. If they don't, and you need to rely on these Rules of Thumb in any distance learning context, remember: small parts, limited times and limited access are the keys to fair use.

1. Incorporate performances of others' works

2. Include

3. Limit access to students enrolled in the class and administrative staff as needed.
Terminate access at the end of the class term.

4. Obtain permission for materials that will be used repeatedly by the same instructor
for the same class. 

Digitizing and using images for educational purposes

The CONFU Educational Fair Use Guidelines for Digital Images suggest that fair use requires our libraries to request permission to use images at the same time they are digitized. These Rules of Thumb take a different approach, but in other respects, the Guidelines can provide helpful guidance and we recommend that you read them. For more information about digitizing images and other non-text media, see Advanced Topics in Copyright Law. The third section addresses issues that typically arise in the College of Fine Arts. Also see, [Harper, Schaub, fall 2007].

1. Assess the scope and relevance of licensed resources available to meet educator's
needs.

Limit access to all images except small, low resolution "thumbnails" to students enrolled in the class and administrative staff as
needed. Terminate access at the end of the class term.

Faculty members also may use images at peer conferences.

Students may download, transmit and print out images for personal study and for use in the preparation of academic course assignments and other requirements for degrees, may publicly display images in works prepared for course assignments etc.,
and may keep works containing images in their portfolios.

2. Periodically review digital image resource collections. If commercial digital image sets

that meet your institution's needs become available at a fair price, license them.

Digitizing and using other's works in multimedia course materials

The CONFU Fair Use Guidelines for Educational Multimedia suggest that fair use requires adherence to specific numerical portion limits, that copies of the multimedia work that includes the works of others should be strictly controlled, and that fair use "expires" after 2 years. These Rules of Thumb acknowledge that these are important considerations, but it's important to remember that the Guidelines numbers do not describe the outer limits of fair use. Despite their tightly controlled approach, the Guidelines can provide helpful guidance and we recommend that you read them.

Please keep in mind that the rights described here are rights to create unique works, but not to make and distribute multiple
copies of what you've made.

1. Students, faculty and staff may

in connection with or creation of

2. Be conservative. Use only small amounts of other's works.

3. Don't make any unnecessary copies of the multimedia work.

Music

The Guidelines for Educational Uses of Music negotiated in 1976 can provide helpful guidance and we recommend that you read them.

1. Limit copying as follows:

2. Include

3. Replace emergency copies with purchased originals if available.

Research copies

Limit research copies to

Digitizing and using others' works in course management systems,
on departmental and individual Websites and in electronic reserves

The Fair Use Guidelines for Electronic Reserve Systems describe general limitations on the scope of materials that should be included, citation and notice requirements and access, use, storage and reuse of reserve materials. These Rules of Thumb are an abbreviated summary of the Guidelines terms which provide helpful guidance that we recommend you review.

You may also wish to review the Fair Use in the Development of E-Reserve Systems published by a group of library organizations.

1. Limit materials posted within reserves and course management systems to

2. Include

3. Limit access to students enrolled in the class and administrative staff as needed.
Terminate access at the end of the class term.

4. Obtain permission for materials that will be used repeatedly by the same instructor
for the same class.

Using the four factor fair use test

The Rules of Thumb do not describe the outer limits of fair use; they describe a "safe harbor" within the bounds of fair use. So, a use that exceeds the suggestions of the Rules of Thumb may still be fair.

Most people think that the fair use test is difficult. Actually, it's not so much difficult as it is uncertain - susceptible to multiple interpretations. Two people can review the same facts about a proposed use and come to different conclusions about its fairness. That's because one must make many judgments in the course of weighing and balancing the facts.

Attorneys read the "judgments of judges" to learn how to make judgments ourselves, but judges see things differently (one from another) too. Because "reasonable minds can disagree" about fair use, perhaps it is unrealistic to try to predict what a judge would think about a proposed use. But that's just what this test is about.

Here's how it works:

With a particular use in mind,

The four fair use factors:

  1. What is the character of the use?

  2. What is the nature of the work to be used?

  3. How much of the work will you use?

  4. What effect would this use have on the market for the original or for permissions
    if the use were widespread?

 

FACTOR 1: What is the character of the use?

  • Nonprofit
  • Educational
  • Personal
  • Criticism
  • Commentary
  • Newsreporting
  • Parody
  • Otherwise "transformative" use
  • Commercial

Uses on the left tend to tip the balance in favor of fair use. The use on the right tends to tip the balance in favor of the copyright owner - in favor of seeking permission. The uses in the middle are very beneficial: they add weight to a fair use claim, either cumulatively, if you have other factors on the left in your favor, or by minimizing the importance of a commercial use. Even commercial uses can be fair when they involve parody, criticism and commentary.

A discussion of transformative uses is below under Factor 4.

 

FACTOR 2: What is the nature of the work to be used?

  • Fact
  • Published
  • A mixture of fact and imaginative
  • Imaginative
  • Unpublished

Again, uses on the left tip the balance in favor of fair use. Uses on the right tip the balance in favor of seeking permission. But here, uses in the middle tend to have little effect on the balance, sort of cancelling out this factor entirely.

Which way is your balance tipping after assessing the first two factors?

 

FACTOR 3: How much of the work will you use?

  • Small amount
  • More than a small amount

This factor has its own peculiarities. The general rule holds true (uses on the left tip the balance in favor of fair use; uses on the right tip the balance in favor of asking for permission), but if the first factor weighed in favor of fair use, you can use more of a work than if it weighed in favor of seeking permission. A nonprofit use of a whole work will weigh somewhat against fair use. A commercial use of a whole work would weigh significantly against fair use.

For example, a nonprofit educational institution may copy an entire article from a journal for students in a class as a fair use; but a commercial copyshop would need permission for the same copying. Similarly, commercial publishers have stringent limitations on the length of quotations, while a student writing a paper for a class assignment could reasonably expect to include lengthier quotes.

Which way does your balance tip after assessing the first three factors? The answer to this question will be important in the analysis of the fourth factor!

 

FACTOR 4: If this kind of use were widespread, what effect would it have
on the market for the original or for permissions?

  • Password protection; technological protection; limited time use
  • Original is out of print or otherwise unavailable
  • Copyright owner is unidentifiable
  • No ready market for permission
  • Proposed use is transformative and not merely duplicative (first factor)
  • Competes with (takes away
    sales from) the original
  • Avoids payment for permission
    (royalties) in an established
    permissions market

This factor's interaction with the first factor is quite important, and contentious. There is considerable controversy about the extent to which a market for permission should affect the rest of the fair use analysis in a nonprofit educational setting. We know how courts are taking into account in commercial cases the presence or absence of mature permissions markets, and whether a use is transformative or merely duplicative. But so far, a nonprofit case with the right set of facts has not emerged to provide guidance. Thus, there is a range of opinion about whether courts would apply the rather strictly macroeconomic holdings regarding research copies and coursepacks in a nonprofit educational setting. The question comes down to how much of a difference you think being nonprofit and educational will make where there's a mature permissions market, that is, where it's easy to get permission and the price is appropriate for educational uses. And it comes down to how tolerant your institution is for the risk that not knowing for sure entails.

Personally, I am not confident that courts are likely to give educators a special break when they make hundreds of thousands of copies of materials for which permission is easily available. Thus, I tend to discount the value of a good outcome on the first factor, except where the use is creatively transformative. There are those, however, who believe courts could be persuaded to give educators a break, even for uses that are in no sense transformative but merely duplicate copies of entire works.

This is where your risk tolerance comes in. If you are uncomfortable ignoring a mature permissions market for purely duplicative uses, you'll tend to weigh the presence of such a market (on the right, above) strongly against fair use. Where such a permissions market does not exist, a fair use claim is quite strong (illustrated by the points on the left). Similarly, if you are making a transformative use, even where there is a permissions market, such uses are likely fair.

So, transformative uses: good, even in a functioning permissions market. Duplicative uses in the face of a mature permissions market: risky, given the commercial cases we've got.

You're probably wondering what "transformative" means right about now. Generally, it's using a work in a new way, serving a new market from the one the original was intended to serve, adding to it, using part of it in another work. Using a small image of a poster to illustrate a timeline is transformative; creating a parody of a song is transformative; scholarly criticism that quotes to illustrate a point is transformative; a model's glossy used in a news report is transformative. But it's not just a matter of finding a way, any way, to call making tons of copies transformative. Yes, including an article with other articles in a group in some respect transforms the article because it's in a new context. Providing a scientific journal article to a student to read makes a different use of it than its author might have intended (he may have written only for other scholars). But there is little evidence that stretching the definition of transformative use in that way would fly. It seems to me to have more to do with the overall social and economic impact of a decision either way -- what will seem to the judge like the right thing to do in the case in point. I don't think judges mechanically do the fair use analysis and "see" how it comes out. I think they decide how it should come out and then they "do" the fair use analysis to justify their gut instincts.

What does your gut tell you about how the balance for your use is tipping after consideration of all four factors?

* A Note About Time Limits - Although the statutory fair use analysis does not address time limits, many of our Rules of Thumb and all the Guidelines contain time limits on fair use. Many people do not understand this and wonder why a use that is fair today would cease to be fair at the end of a semester. This is hard to explain because it does not seem to have a basis in statutory requirements or case law. But there the limits are: in the Classroom Guidelines (1976); the CONFU Proposed Distance Learning Guidelines, Multimedia Guidelines and Image Guidelines (all 1996); and even in the Electronic Reserve Guidelines (1996, non-CONFU). I have discussed this with other attorneys within the university community and have not heard a satisfactory legal explanation. Nevertheless, I have concluded that there may be two reasons we seem to agree to time limits anyway:

 

1) publishers clearly believe fair use has time limits;

2) as indicated above, courts seem increasingly willing to let the fourth factor of the fair use analysis trump all the other factors
so that where there is a market for permissions, "fair use is negated." This was the position articulated by the majority in the
Michigan Document Services decision.

Under this strictly economic analysis, in those circumstances where a ready market for permissions exists, such as permission for coursepacks, fair use shrinks - perhaps in time as well as in other dimensions. But the opposite is true, too. Where the permissions market is dysfunctional, fair use expands, both in the amount one may use and in time. For more information about this, see Advanced Topics in Copyright Law, the third section addressing issues in a College of Fine Arts.

Need Permission?

Getting permission is part art, part science. It is, fortunately, becoming easier in many cases. For pointers to collective rights agencies, information about transactional and subscription licenses, and important considerations in the process of obtaining permissions, please see, Getting Permission. If you have a choice about what materials you use for a particular purpose, consider also that you can eliminate the need for permission to use others' works if you choose works that are already licensed for the use you plan to make. For example, there may be appropriate materials for your purposes already licensed by your library; appropriate materials may be available with Creative Commons licenses that allow nonprofit educational uses without permission; or materials may be freely available online that carry implied rights to make uses as you plan. Information about these choices is available in Accessing and using library resources, at the Creative Commons, and in Content on the Web and Managing your copyrights.

More information

If you are associated with the University of Texas System as faculty, staff or student and have questions about the application of the Rules of Thumb or the four factor fair use test, please let me know.

Need more information? The Copyright Crash Course contains detailed materials on fair use and many other copyright issues.



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