Intellectual property law is a specialty field and copyright law is a sub-specialty. So, it’s not surprising that community college employees might not know all the details. I don’t either. I’m not a lawyer and nothing here should be construed as legal advice.
Despite that, I do get frustrated, not by the lack of specialized knowledge, but at the absolute misinformation that I have heard from colleagues.
The language of Title 17 U.S. Code is clear. To summarize: a copyright holder has the exclusive rights to reproduce the work, prepare derivative works, distribute copies, perform the work publicly and/or display the work publicly. No exceptions. No “it’s OK to make/distribute copies if I don’t charge for it.” No right to reproduce because of fair use. And there are strict delineations between performances in or as part of a class and public performances.
Of these, one of the most misunderstood is fair use.
This article is part of a monthly column provided by the Instructional Technology Council, an affiliated council of the American Association of Community Colleges.
What is fair use?
The best answer I’ve ever received to the question “what is fair use” is that “fair use is whatever the judge you’re standing in front of says it is.” That’s what an actual real-live lawyer told me, and it’s not a flippant response; it makes two excellent points.
The first is that fair use is a legal defense that can be used when accused of copyright infringement. It is neither a right nor a privilege nor is it permission to reproduce. It just means that, if your use is fair, you would win the lawsuit. Therefore, if the copyright holder believes your use is fair, they might not bother to sue in the first place, but if they don’t believe it’s fair, they will sue, and you will need to plead your case. I’ll get to that in a moment.
In the news recently, a (somewhat) famous tattoo artist is using the fair use defense claiming that a tattoo she did of a (somewhat) famous photograph of Miles Davis is transformative and therefore fair use. The copyright holder didn’t agree, so it went to court. The defendant’s argument speaks to the first test of fair use — the character of the use.
The four tests
The four tests of fair use are:
- The purpose and character of the use
- The nature of the copyrighted work
- The amount or substantiality of the portion used
- The effect of the use on the potential market for or value of the work
Columbia University Libraries has a great primer on this.
Not too long ago, an appeals court stated explicitly that each factor must be weighed and then all four factors weighed in totality. It remanded that case back to the lower court judge who thought it was quantitative and said something like “three out of four wins” but the higher court said no way — it’s qualitative and failing even one test can be grounds for failure of the fair use defense if the violation is particularly egregious.
How can I tell, for sure?
This is the second point made by the quote above — even if you and I and a team of lawyers says “Looks like fair use to me,” the actual decision may be in the hands of a judge — and what they say goes.
I am the point person on my campus for fair use opinions, but it’s always important to establish that my opinion is just that – an opinion. I am better informed than most of my colleagues because of my research into this topic, but my opinions are not definitive or binding legal advice.
Me saying “it’s fair use” is like the passenger in a car saying “Just go through the yellow light” to the driver. The passenger may be a more experienced driver and well-informed about motor vehicle laws, but the driver will be the one to face consequences if a ticket is written and everyone involved will face consequences if an accident occurs. This is why I think it’s worthwhile for all college employees to have a basic understanding of the topic.
To better understand, let’s plead a sample case, recognizing that I’m neither a lawyer nor a judge, just someone with an, arguably, unhealthy interest in the topic!
Sample case
Scenario: a faculty member stumbles upon a “perfect” short story translation to use in a short-semester specialty literature course for a class session that’s scheduled this week. It’s not reasonable to reschedule the lesson and the original materials planned for use are inferior. The faculty member wants to reproduce three pages of a 200-plus page book and hand out copies to discuss in class. The copies will be collected and shredded at the end of the class session. Is this fair use? Let’s look at the four tests…
- Purpose of use: Not transformative, merely reproduction but also nonprofit educational/teaching/scholarship. I’d bet on a favorable outcome for this test.
- Nature of the work: In this case, the story itself is old enough to be public domain but the translation/presentation is arguably a unique creative work. This test could go either way.
- Amount: Pp to the judge. Is this going to be considered three pages out of 200-plus equating to about 1.5% of the work (although not binding “less than 10%” is a common rule of thumb for fair use) or will this be looked at as 100% of the translation of the specific story? Up to the judge — could go either way but not an obvious or egregious failure of the test in my opinion.
- Effect on market: Would the faculty member make the students buy the book just for these three pages if the determination were “definitely not fair use” — I’m assuming the answer is “no” so most likely this copyright infringement would have little or no impact on the market. Probably a favorable outcome.
So, it’s not a slam dunk, by any means. The best advice is when in doubt, leave it out but honestly, fair use exists specifically for the purpose of “criticism, comment, news reporting, teaching, scholarship, and research” and this scenario may well be fair use.
Given these circumstances, I’d be the passenger in the car yelling “Go for it” as we hurtled towards the yellow light, largely because the time constraints don’t seem to permit reaching out for copyright clearance or acquiring multiple copies for the college library.
Better choice
Contact the copyright holder and ask permission! Outline (briefly) the intended use and the specific parameters (amount, format, controls to prevent the creation of additional copies or dissemination etc.) No need to mention fair use – remember, that’s just a defense if you’re sued, and having explicit permission should prevent being sued.
The most likely response, however, is no response. One thing to consider is saying “I intended to use…please let me know if you will not permit that” so that no response becomes tacit permission. Tacit permission probably won’t stand up in court, but hey, at least you tried. If you do need to fall back on the fair use defense you can show the judge your good intent.
Contact your college library to see about buying a legal copy of the work in an electronic format that allows multiple concurrent views or acquiring multiple copies of the work in physical or electronic format(s) that allow for direct access.
Additional resources
Although few community colleges have dedicated teams of copyright experts, many universities do. Note the Columbia link above. I tend to look at the websites for Ivy League schools not only because of their deep pockets but because of their cachet amongst academics. State R1 universities also have great resources, freely available.
But my personal favorite fair use primer is The Copyright Ninja: Rise of the Ninja (St. Aubin Comics, 2017) a “comic book for faculty members, librarians, staff members, and leaders in colleges and universities in the United States and Canada.” That’s right, a comic book. The fair use basics it outlines could be compiled in academic format using APA or MLA style citation or in a whitepaper like this article. But it wouldn’t be anywhere near as much fun as a comic book!
