Visual & Media Literacy Guide: Fair Use/Copyright

College Art Association. 2015. Fair Use at Work in the Visual Arts. [online video]. USA. YouTube. 2017. https://www.youtube.com/watch?v=2Hvec8Z3OSQ

Recommended Reading: Aufderheide, Patricia and Jaszi, Peter. Reclaiming Fair Use. How to Put Balance Back in Copyright.The University of Chicago Press. Chicago and London. 2011.

The fair use doctrine Documentary Filmmaker's Statement of Best Practices in Fair Use is endorsed by Association of Independent Video and Filmmakers, Independent Feature Project, International Documentary Association, National Alliance for Media Arts and Culture and Women in Film and Video.

U.S. Copyright Office Description of Fair Use states:

"Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use.  Section 107 calls for consideration of the following four factors in evaluating a question of fair use:

• Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes:  Courts look at how the party claiming fair use is using the copyrighted work, and are more likely to find that nonprofit educational and noncommercial uses are fair. 
• Nature of the copyrighted work:  This factor analyzes the degree to which the work that was used relates to copyright’s purpose of encouraging creative expression.
• Amount and substantiality of the portion used in relation to the copyrighted work as a whole:  Under this factor, courts look at both the quantity and quality of the copyrighted material that was used. If the use includes a large portion of the copyrighted work, fair use is less likely to be found; if the use employs only a small amount of copyrighted material, fair use is more likely.
• Effect of the use upon the potential market for or value of the copyrighted work:  Here, courts review whether, and to what extent, the unlicensed use harms the existing or future market for the copyright owner’s original work."

Technology, Education and Copyright Harmonization (“TEACH”) Act (S. 487) Exiting Law states:

"Three exemptions together largely define the scope of permitted uses for instructional activities: two specific instructional exemptions in section 110, and the fair use doctrine of section 107. Sections 110(1) and (2) together were intended to cover all of the methods by which performances or displays in the course of systematic instruction take place. Section 110(1) exempts the performance or display of any work in the course of face-to-face teaching activities. Section 110(2) covers the forms of distance education existing when the statute was enacted in 1976, exempting certain performances or displays in the course of a transmission - i.e., an instructional television or radio broadcast. Both subsections contain a number of limitations and restrictions. In particular, the section 110(2) exemption from the performance right (as distinguished from the exemption from the display right) applies only to nondramatic literary and musical works. Section 110(2) also contains limitations on the nature and content of the transmission, and the identity and location of the recipients. The performance or display must be made as a regular part of systematic instructional activity by a nonprofit educational institution or governmental body; it must be directly related and of material assistance to the teaching content; and it must be made primarily for reception in classrooms or places of instruction, or to persons whose disabilities or other special circumstances prevent their attendance in classrooms, or to government employees.

In addition, although the term "transmission" as used in section 110(2) is not limited to analog technology, and would therefore include digital transmissions, the provision would only permit digital transmissions to the extent that they do not implicate exclusive rights other than the public performance and public display rights. Since the reality of digital technology is that most digital transmissions entail reproduction and distribution (as those terms are defined in the copyright law and interpreted by the courts), the practical outcome is that most digital transmissions are not exempted under section 110(2)."