M3-OPTION 1: Copyright and Fair Use Blog

What is fair use?

Fair use is the legal concept that certain copyrighted material may be used, even copied verbatim, for certain purposes without needing permission from the copyright holder. The primary criteria for using this material in a legal way is that it is used for a “transformative” purpose. This is a somewhat ambiguous wording, but most fair use situations can be placed in two categories: commentary/criticism or parody. In the first situation, there is a public benefit to the material being used; in the second situation, the parody is incapable of existing without the verbatim use of the original material.[1]

When assessing fair use in court, judges consider four factors:

·         The purpose and character of the use

·         The nature of the copyrighted work

·         The amount and substantiality of the portion taken

·         The effect of the use upon the potential market

These factors are used to resolve disputes in the gray legal areas where the commentary/criticism/parody genres may be less than clear. The four factors are not the sole deciding criteria, but they help guide the court’s thinking. At the end of the day, a judge may decide a violation of fair use has occurred based solely on the corrupt motives of the violating party.[2]

Work for Hire

            Work for hire is a legal concept defining the ownership of any work. Generally, the creator of the work is considered to hold the copyright on it. But in the case of work for hire, the employer is considered the author of a work, even if an employee created it.[3] In a situation where someone is employed creating computer graphics for a firm or organization, those graphics’ ownership would like with the organization and not with the graphic designer. Because of this doctrine, any dispute over fair use would involve the parties that claim authorship over work and not necessarily the work’s creators.

Work for Education

            A large carve-out in the fair use doctrine is for material that has an educational purpose and is used in a non-profit educational setting, such as a K-12 school, a college, or university. Other institutions, such as museums and hospitals, are also considered educational. As long as the organization is engaged in “nonprofit instructional, research, or scholarly activities for educational purposes.”[4] In these cases, copyrighted material may be reproduced and distributed to students in a limited fashion and for a limited period of time. There are strict guidelines governing the use of printed material, printed music and audio recordings, and television or video recordings.

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[1] Stim, Rich. (2016, October). What is Fair Use? Retrieved from https://fairuse.stanford.edu/overview/fair-use/what-is-fair-use/

[2] Stim, Rich. (2016, October). Measuring Fair Use: The Four Factors. Retrieved from https://fairuse.stanford.edu/overview/fair-use/four-factors/

[3] United States Copyright Office. (2012, September). Works Made for Hire.

[4] Stim, Rich. (2016, October). Educational Uses of Non-coursepack Materials. Retrieved from https://fairuse.stanford.edu/overview/academic-and-educational-permissions/non-coursepack/