The scenarios to the right are intended to help faculty and students evaluate fair use. These scenarios are illustrative, not exhaustive.
The examples deal with situations involving:
Journal Article for Classroom Use
Scenario: An instructor copies one article from a journal to distribute to the class.
Fair Use? Yes. Distribution of multiple copies for classroom use is fair use. However, the repeated use of a copyrighted work, from term-to-term, requires more scrutiny in a fair use evaluation. Repeated use, as well as a large class size, may weigh against fair use.
Posting Copyrighted Article to a Web Page
Scenario: An instructor has posted his class notes on a web page available to the public. He wants to scan an article from a copyrighted journal and add it to his web page.
Fair Use? No. If access is open to the public, then this use is probably not a fair use. No exclusively educational purpose can be guaranteed by putting the article on the web, and such conduct would arguably violate the copyright holder's right of public distribution. If access to the web page is restricted, then it is more likely to be fair use.
Coursepacks:
Scenario: An instructor copies excerpts of documents, including copyrighted text books and journals, from various sources. The professor plans to distribute the materials to his class as a coursepack and sell it in the bookstore.
Fair Use? No. Without the express permission of each copyright owner, the instructor may not include copyrighted material in a coursepack, nor may she provide it for sale in the College bookstore. Copyright permission can be received by contacting the Library Director, who serves as the College's Copyright Compliance Officer.
Textbooks:
Scenario: An instructor, considering a textbook too expensive, wants to make copies of the book for his student.
Fair Use? No. Although the use is educational, theinstructor is using the entire work, and by providing copies of the entire book to his students, he has affected the market. This conduct clearly interferes with the marketing monopoly of the copyright owner. The instructor should place a copy on reserve in the Library or require the students to purchase the book.
Scenario: An instructor decides to make three copies of a textbook and place them on reserve in the library for the class.
Fair Use? No. This conduct still interferes with the marketing monopoly of the copyright owner. The instructor may place a copy of the textbook, not the copies, on reserve.
Public Domain Materials:
Scenario: An instructor copies a selection of Shakespearean sonnets from a copyrighted anthology.
Fair Use? Yes. The sonnets are in the public domain and not subject to copyright protection.
Scenario: An instructor distributes the recorded minutes of a Senate Committee hearing to his students.
Fair Use? Yes. Government documents are in the public domain.
Journal Article for Personal Use:
Scenario: A student or faculty member makes one copy of a copyrighted article from a journal for personal use.
Fair Use? Yes. This is a classic example of personal fair use, because the student or faculty member will not be copying or distributing the article.
Out of Print Book:
Scenario: A library has a book that is out of print and unavailable for purchase. The book is an important one in the instructor's field that she needs for her research. The instructor would like to copy the book for her files.
Fair Use? Yes. This is another example of personal use. If one engages in the fair use analysis, one finds that: (1) the purpose of the use is educational versus commercial; (2) the instructor is using the book, a creative work, for research purposes; (3) copying the entire book would normally exceed the bounds of fair use; however, since the book is out of print and no longer available from any other source, the copying is acceptable; (4) finally, the copying will have no impact on the market for the book because the book is no longer available from any other source.
Scenario: A library has a book that is out of print and unavailable for purchase. The instructor would like to copy the book and place it on reserve in the library. The instructor would also like to scan the book and place it on a web page.
Fair Use? Yes and No. Yes, the instructor may indeed make a copy and place it on reserve in the library. No, the instructor may not scan it and place it on a webpage, as this would provide unlimited access and would infringe on the copyright owner's public distribution.
Showing a DVD for Classroom Instruction:
Scenario: An instructor wants to show a copyrighted DVD tin the classroom to support content and instruction.
Fair Use? Yes. Since it is for classroom instruction and there is no admission fee, the instructor may use the DVD. Tuition and fees are not considered "admission fees."
Copying a DVD for Classroom Instruction:
Scenario: An instructor makes a copy of a DVD and gives it to another instructor to show in his class.
Fair Use? No. The instructor may lend his copy but may not duplicate a DVD without express written permission from the copyright owner.
Renting a DVD that is in the Public Domain for Nonclassroom Use:
Scenario: An organization or instructor wishes to raise funds for a scholarship. She rents a DVD of a motion picture on which the copyright has expired and charges admission fees.
Fair Use: Yes. The copyright has expired, which places the DVD in the public domain.
Renting a DVD that is Copyright Protected for Non-Classroom Use:
Scenario: An organization or instructor wishes to raise funds for a scholarship. He rents a copyrighted DVD and charges admission fees.
Fair Use? No. The copyright owner is denied the right to profit from his copyrighted work.
Classroom Presentation:
SCENARIO: An instructor or student prepares and gives a presentation that displays photographs. Permission was not obtained to use the photographs.
FAIR USE? Yes. The copyright fair use provision explicitly provides for classroom use of copyrighted material. Instructors and students may perform and display their own educational projects or presentations for instruction.
Electronic Transmission or Broadcast of Classroom Presentation:
SCENARIO: A presentation incorporating copyrighted photographs is broadcast to a distant classroom?
FAIR USE? Yes. This use would be considered fair use, as long as the presentation is broadcast for remote instruction.
Broadcast of Classroom Presentation to Home or Office:
SCENARIO: A presentation incorporating copyrighted photographs isbroadcast to students at their homes or offices?
FAIR USE? Yes. This use would be considered fair use if the individuals are enrolled in a course and viewing the presentation for purposes of criticism, comment, teaching or instruction, scholarship, or research.
Videotaping of Classroom Presentation:
SCENARIO: A presentation incorporating copyrighted photographs is videotaped?
FAIR USE? Yes. This use would be considered fair use, if the videotape is used for educational purposes such as student review or if the videotape is for instruction.
Broadcast or Videotaped Classroom Presentation:
SCENARIO: A presentation incorporating copyrighted photographs is videotaped and rebroadcast? Is this a fair use?
FAIR USE? Yes. The use of the photographs is fair use as long as the presentation is videotaped and rebroadcast only for instruction.
Incorporation of Photographs in an Electronic Presentation:
SCENARIO: A presentation incorporating copyrighted photographs is included in an electronic presentation (such as Microsoft Power Point).
FAIR USE? Yes. This should be considered fair use as long as the electronic presentation is for educational or instructional use.
Making Changes to Photographs:
SCENARIO: A student or teacher changes the attributes of copyrighted photographs used in a classroom presentation.
FAIR USE? Yes. This would be considered fair use for education, comment, criticism, or parody. One must inform the audience that changes were made to the photographer's copyrighted work.
Use of Copyrighted Music:
SCENARIO: A teacher or student creates a presentation and incorporates copyrighted music into the background. Assume that permission was not obtained to use the music for the presentation. Can the music be included in the teacher's or student's initial presentation?
FAIR USE? Yes. This is fair use if instruction is occurring.
Use of Music Over Two-Way Interactive Video:
SCENARIO: A teacher or student creates a presentation and incorporates copyrighted music into the background. Assume that permission was not obtained to use the music for the presentation. Can the incorporated music be broadcast using two-way interactive video?
FAIR USE? Yes and No. Yes, as long as there is no admission fee to the broadcast. Tuition/course fees are not considered "admission fees." No, if an admission fee (aside from tuition/course fees) is charged. In this case, written permission from the copyright owner must be obtained.
Use of Music in Videotaped Classroom Presentation:
SCENARIO: A teacher or student creates a presentation and incorporates copyrighted music into the background. Assume that permission was not
obtained to use the music for the presentation. Can the presentation be videotaped?
FAIR USE? Yes. This is fair use if instruction is occurring.
Use of Music in Broadcast of Videotaped Classroom Presentation:
SCENARIO: A teacher or student creates a presentation and incorporates copyrighted music into the background. Assume that permission was not
obtained to use the music for the presentation. Can the videotaped presentation be broadcast?
FAIR USE? The answer is not clear. If instruction is occurring and no admission fee is charged (excluding tuition/course fees), then the presumption is that this it may be fair use.
Use of Music in an Electronic Presentation (Excluding the Internet):
SCENARIO: A teacher or student creates a presentation and incorporates copyrighted music into the background. Assume that permission was not
obtained to use the music for the presentation.
FAIR USE? Yes. This is fair use if instruction is occurring.
Use of Music as Content in a Classroom Presentation:
SCENARIO: An instructor teaches a music class and creates a presentation featuring the works of ten contemporary artists. The instructor uses the same material each semester.
FAIR USE? Yes, as long as instruction is occurring.
Use of Music in Classroom Presentations on the Internet:
SCENARIO: An instructor teaches a music class and creates a presentation featuring the works of ten contemporary artists. The presentation is placed on the Internet.
FAIR USE? Yes, as long as access is restricted by use of a password, PIN or other means.
Remote Access of Searchable Database via the Internet:
SCENARIO: An instructor creates a searchable database of copyrighted materials. The database is used as a part of a distance education class and is
available on the institution's webserver. Students enrolled in the course access it from home or other non-traditional settings. Access to the database is controlled by username/password or other method and is available only to the students enrolled in the course. The faculty member did not obtain
permission to use the copyrighted materials.
FAIR USE? Yes. The materials are being used for instruction and access is restricted.
Student Project for Distribution on the Internet:
SCENARIO: A student prepares an assigned presentation that will be placed on the Internet. The student includes copyrighted images, music or video. The
student does not obtain permission to use the materials.
FAIR USE? No. The student will have to obtain written permission from each copyright owner, since the material is being placed on the Internet.
Student Project on the Internet with Restricted Access:
SCENARIO: A student prepares an assigned presentation that will be viewed only by other students who have access to the material via username/password,
PIN, or other means.
FAIR USE? Yes.
Digitizing a Textbook and Placing it in a Restricted-Access Course:
SCENARIO: An instructor wishes to digitize and post on the College's Learning Management System (LMS) a textbook that students have complained is
too expensive.
FAIR USE? No. Digitizing constitutes copying. Copying an entire book and posting it electronically (even on a restricted-access LMS) would adversely
affect the market for that work, thus violating fair use.
Posting Scanned Articles on a Restricted-Access Course:
SCENARIO: An instructor wishes to scan an article from the newspaper or a journal and post it on a restricted-access online course.
FAIR USE? Yes. This is considered "spontaneous copying" and is permissible as long as it is for a one-time use. If the instructor wishes to use the
article in subsequent semesters, then a "fair use" analysis would be necessary.
Digitizing a Chapter of a Book and Posting It in a Restricted-Access Course:
SCENARIO: An instructor wishes to digitize one chapter of a book and post in in an online course. Access to the course is restricted to students enrollled
in the course.
FAIR USE? Yes. Posting a chapter consititutes fair use, as long as the chapter is removed after the semester ends.
Digitizing and Posting an Out-of-Print Book:
SCENARIO: An instructor discovers that a book he wishes to include on his syllabus is out of print and not available for purchase. She wants to scan her
personal copy and post it in her internet class, which is restricted to the students enrolled in the course.
FAIR USE? It depends. While being out of print eliminates the risk of market impact, the copyright holder still retains a rightful claim to the book. The
instructor should contact the copyright holder to inquire about the current state of the copyright. If the instructor is unable to contact the copyright owner,
digitizing the book would not be considered fair use.
Digitizing Textbooks That Have Not Arrived As a Semester Begins:
SCENARIO: As the semester begins, an instructor has just been notified that the textbooks for her class have not arrived. She wants to scan and post the first few chapters in her online course content (restriced to use by students enrolled in the class) for students to read until the print textbooks arrive.
FAIR USE? Yes. Such use is considered "spontaneous copying" and falls within fair use as long as it is temporary. The files must be removed when the textbooks arrive.
Digitizing a Journal Article When the Library Does Not Subscribe to the Journal:
SCENARIO: An instructor requires students to read a specific article at the beginning of an assignment. The article is not included in a database to which
the Library subscribes. The instructor wants to digitize the article and include it in the online course files.
FAIR USE? No. The article does not originate from a database licensed under the Library's database subscriptions.
Streaming a Complete Video:
SCENARIO: An instructor wishes to stream a documentary in an online course.
FAIR USE? No. The TEACH Act allows only "reasonable and limited" amounts of "other works," to include audiovisual works.
Streaming Clips from a Video:
SCENARIO: An instructor wishes to stream portions of a documentary in an online course.
FAIR USE? Yes...if the documentary is lawfully obtained; if the clips will not be downloadable; if access is limited to enrolled students; and if other
requirements of the TEACH Act are met.
Creating Clips From a Rented Video:
SCENARIO: An instructor wishes to post clips from a documentary DVD rented from Netflix.
FAIR USE? Yes. The DVD was lawfully acquired by Netflix;the instructor is using limited portions; the clips are stored on a secure server. These clips
may be used in subsequent classes.
Embedding YouTube Videos into Course Content:
SCENARIO: Students and/or instructors wish to embed YouTube videos in discussion board posts.
FAIR USE? Yes. YouTube allows embedding of any video that allows itself to be embedded. Embedding content is technically the same as linking to it.