Use this guide to understand whether your use of a copyrighted work in your online class qualifies for fair use. Copyright law in the United States is designed to encourage the sharing of ideas by protecting creators from others using their work without permission or profit. To support the exchange and development of ideas, fair use allows you to use limited portions of copyrighted material without permission when your purpose is criticism or commentary.
Fair use guidelines
There are four standards that you consider when deciding whether fair use protects your use of a copyrighted work. You can use the acronym PANE to help you remember them:
- Purpose and character of the use
- Amount and substantiality of the portion used
- Nature of the copyrighted work
- Effect of the use upon the potential market
Remember that fair use is legally subjective, which means reasonable people may disagree about whether a particular use is considered fair. Instead of treating the guidelines as strict rules, think of each one as a spectrum. When you make a thoughtful effort to meet all four standards and can clearly justify your decisions, you should feel confident that you are supporting your students while also respecting copyright law.
Purpose and character of the use
The purpose of the use refers to whether you are using the work for nonprofit or educational purposes or for commercial (for-profit) purposes. Generally, copyright law favors nonprofit or educational uses over commercial uses.
If you work for a for-profit university or educational service, your use of a copyrighted work will likely be considered commercial even if it’s for educational purposes.
The character of the use refers to whether your use of the work is transformative rather than merely a replica. In other words, your use should somehow add to the original work or contribute new insight into the topic rather than repeat the original creator’s ideas.
Fair use
- Quoting a book in a critical review
- Streaming a TED Talk in an online classroom
- Showing parts of a photograph for purposes of critique or comparison
Not fair use
- Using someone else’s research to help sell your book or journal article
- Writing an informational article that heavily quotes another article
Amount and substantiality of the portion used
The amount refers to the quantity of the work used. Although many have suggested that 10% is the acceptable amount of a work you can use, the law doesn’t actually specify a certain percentage. However, in general, the smaller the percentage, the more likely it is that your use will be considered fair.
A note on images: Images are difficult because typically it is necessary to display the entire image rather than just a portion of it. If you need to use a full image, make sure your use complies with the requirements of the TEACH Act.
Substantiality refers to the quality of the portion of the work you use. In other words, it matters what part of the work you intend to include in your course, not just how much. Copyright law provides stronger protections for the “heart” of a work, meaning what makes the work unique or iconic. For example, fair use would likely not cover replicating the argumentation or structure of an essay or “borrowing” the most memorable lines from a movie, even if they constitute a small portion of the work.
Fair use
- Quoting portions of a book or article
- Showing a portion of a video or song in your online class
Not fair use
- Uploading multiple articles from a journal to an online class
- Summarizing all of the essential points of a textbook in module introductions
- Replicating the structure of an essay or textbook chapter (even if paraphrasing)
Nature of the copyrighted work
The nature of the work refers to two main issues:
- Whether the work is drafted or undrafted
- And whether the work is more creative or factual
Copyright law favors an author’s right to choose when and how they first draft their works, so fair use is less likely to allow the use of an undrafted work. Copyright law also more stringently protects creative works because they are more unique to the creator than factual works.
Fair use
- Citing statistics from a scientific journal
- Making short video clips from a DVD
- Referencing facts from a biography
Not fair use
- Quoting from someone else’s rough draft
- Quoting a personal correspondence without permission
- Uploading an entire film to an online class
- Borrowing distinct imagery or phrasing from a short story
Effect of the use upon the potential market
Your use of a copyrighted work may not deprive the original creator of any income he or she may currently earn or earn in the future based on the work. For example, you might deprive a filmmaker of income if you stream a movie meant for individual purchase, or you might deprive writers of income if you summarize large portions of a textbook that students might otherwise buy themselves.
You also may not create derivatives of someone else’s work. For example, you can’t take a series of essays and turn it into a book or create a piece of art based on a photograph, because this would deprive the original creator of the chance to earn income based on his or her work in a different industry.
Fair use
- Quoting or using small portions of a work and providing appropriate attribution
Not fair use
- Posting textbook companion material on an LMS when the material is meant for individual student purchase
- Quoting or paraphrasing so much material from a textbook that students need not purchase it themselves
- Sharing your online membership login with someone else
- Turning someone else’s essay into an infographic
Conclusion
When considering whether your use of a copyrighted work falls under fair use, ask yourself these four questions:
- Are you using the work for educational purposes, and does your use expand on the original work in some way?
- Is the original work drafted and factual in nature?
- Is your use a reasonably small portion of the entire work, and does it avoid using the “heart” of the original work?
- Does your use avoid depriving the original creator of present or future income?
If you can answer “yes” to most or all of these questions, you can be confident that your use of the work is legal and ethical. Just make sure to cite your source!
References
- American University Library. (2010). What faculty need to know about copyright for teaching. Retrieved from https://www.american.edu/library/documents/upload/Copyright_for_Teaching.pdf
- Stanford University Libraries. (n.d.). Measuring fair use: The four factors. Retrieved from http://fairuse.stanford.edu/overview/fair-use/four-factors/
