Copyright and Fair Use

Film or Motion Media Copying and Performance/Display

Creating Works (copying portions)

Students Multimedia Projects

Conservative guidelines allow use of 10% or 3 minutes of motion media, whichever is less, if the project is created for a specific course and is shown in the course and/or is incorporated in a portfolio for later personal uses (job interviews, graduate school applications).
If it is a musical video, then the guidelines are 10% (no more than 30 seconds).

Faculty Multimedia Projects

Conservative, but not legally binding, guidelines allow use of 10% or 3 minutes of motion media, whichever is less, for up to two years before obtaining permission for teaching, if:

  • the project is a teaching tool for face-to-face, online classes and directed studies
  • students are advised that they cannot copy presentations
  • online sessions are limited to students enrolled in sessions
  • online sessions use technology to prevent copying or in its absence faculty post projects for 15 days after their initial real-time or assigned use followed by access to a copy in the library or similar location for on-site use only

If it is a musical video, then the guidelines are 10% (no more than 30 seconds).
Although the process of securing permissions should begin immediately if the multimedia teaching tool will be used for more than two years, other uses do not have the same prescribed time limits: use in presentations at workshops and conferences and in personal portfolios (tenure reviews, job applications).

Media Services Policies regarding Videotaping

Videotapes produced by faculty for use in their classes must contain visuals, audio and clips that are copyright free.
Media Services does not duplicate copyrighted videotapes, CDs or DVDs. If faculty gets written permission from the copyright holder, the department will duplicate the medium.

Faculty Distance Education Materials

The Teach Act allows faculty to convert analog copies to digital if the amount converted is comparable to what that may be legally performed or displayed as outlined above and if a digital copy is either unavailable or available but secured by technology that prevents uses that copyright law allows.
For multimedia projects and other uses, several sites list films in the public domain films, which may be used without requesting permission.

Copying Works (copying entire works)

Except for off-air broadcasts, library copying of news programs, library copying of owned materials for preservation (or for obsolete formats for which players are no longer available at a fair price), and limited digitizing of slide collections, the copying of entire works is a clear copyright violation.
Equipment used to copy videotapes should include a notice such as:


MANY VIDEOTAPED MATERIALS ARE PROTECTED BY COPYRIGHT. 17 U.S.C.
Sec. 101. UNAUTHORIZED COPYING MAY BE PROHIBITED BY LAW.

Off Air Recording (radio or television)

Guidelines for off-air recording (PDF file, p.22) of broadcast programming for educational purposes was developed by a Negotiating Committee of educators, copyright owners, and creative guilds appointed in March 1979 by Congressman Robert Kastenmeier, chairman of the House Subcommittee on Courts, Civil Liberties, and Administration of Justice. These guidelines address broadcast, not pay-TV, programs.
Covering formal classroom/instructional and homebound instruction, the guidelines require that off-air recordings:

  • be made simultaneous with the broadcast transmission
  • be for use in non-profit educational institutions
  • be made by or at the request of individual teachers, copied in limited numbers to meet each teacher's needs, and include the copyright notice of the broadcast program
  • be made one time
  • be left intact, not altered
  • be kept no more than 45 consecutive calendar days
  • be destroyed or erased after 45 consecutive calendar days
  • be shown in the first ten days after made by individual teachers and usually one time, two if essential for instructional reinforcement
  • be used by teachers after the first ten school-session days only to evaluate their inclusion in the curriculum

Performance/Display

Displaying legally obtained copies of audio-visual works for instructional purposes, without requesting permission, is fine provided that the performance is:

  • by instructors. guest lecturers, or students
  • in connection with face-to-face or distance education instruction*
  • for an audience that is directly involved in the teaching activity
  • delivered in a classroom or place devoted to instruction (library, workshop space, etc.)

In a few limited cases, it is possible to copy a broadcast even if it exceeds fair use guidelines. For instance, if a PBS broadcast airs tonight, will be available for sale, but is perfect for tomorrow's class, it could be copied and shown but would then need to be deleted and a copy purchased for use in future classes.
*The TEACH Act, which updates earlier restrictions on performing works in other than face-to-face classrooms, allows the performance or display of any work in an amount comparable to that displayed in the course of a live classroom session (in some cases, entire videos when essential to a course, e.g., The Films of John Ford).
Showing a rented film or any film with a "For Home Use Only" label generates controversy, as does much of copyright law and practice. As do other universities, this university:

  • considers a rented film a legally obtained film
  • considers the library an extension of the classroom
  • determines that fair use, which permits display and performance for instructional purposes, takes precedence over home use only restrictions

Fair use supports a wide range of instructional needs as well as reasonable limits on those needs. What it does not support is showing films to the larger public, which is not part of classroom activities, or showing films to entertain students. Both would violate copyright law and both require copyright permission prior to performance.

Information Resources

Images: Art, Photographs, Digital Images

 Visual works of art (pictures (digital or original), sculptures, or graphic works) are protected under copyright law just as are print works.
Works of art in any form raise particular copyright issues. While fair use often allows copying portions of works, an image is a complete work in itself. As with other formats, there may also be multiple copyright owners. The main difference that arises frequently when discussing visual works of art and Copyright Law comes from the fact that what educators are using in their classrooms today are not the actual works, rather the digital reproductions/photographs of the original work.
For example, an art professor would not show his students the actual David statue by Michelangelo - rather he would show them a photo of it. The David statue itself is no longer protected by copyright law, but what about the photograph that the art professor has chosen to display to his students? And if this photograph is protected by copyright law, is the professor legally allowed to show it to his students?

  1. If the work is safely considered an "art reproduction", then yes, the photograph is not a new original work of art in it's own right, and does not therefore fall under copyright law.
  2. However, if enough artistic merit and ingenuity has been placed into creating the photograph (and courts have decided that skill, creativity, or just plain accidental circumstances frequently result in a new artistic work) then the new photograph of the old public-domain work does indeed fall under copyright law.

ArtStor

The complications of identifying and securing appropriate rights to copy and display images are one reason that Blackwell Library and the Fulton School of Liberal Arts are partnering to bring the ArtStor image database to campus. ArtStor secured permissions for educational uses of its almost 500,000 images with the capability to zoom into rich details rather than view thumbnails only. Not an art but an image database, the images cover many disciplines including women's history, Native American history, Asian art, classical studies, medical drawings, Buddhist cave paintings, architecture, photographs and a wealth of other images within a restricted usage environment that balances the rights of content providers with the needs and interests of content users. ArtStor allows:

  1. students and other users to create their own image folders
  2. faculty to create groups of images and add images of their own and make them accessible to students
  3. scholars to download and use at no cost high-resolution images for scholarly publications
  4. For Student Multimedia Projects:

Conservative guidelines allow use of one entire photograph/illustration, no more than five images by an artist, and when taken from a published work, no more than 10% or 15 images, whichever is less, if the project is created for a specific course and is shown in the course and/or is incorporated in a portfolio for later personal uses (job interviews, graduate school applications).

For Faculty Multimedia Projects:

Conservative, but not legally binding, guidelines allow use of one entire photograph/illustration, no more than five images by an artist, and when taken from a published work, no more than 10% or 15 images, whichever is less, for up to two years before obtaining permission for teaching, if:

  1. the project is a teaching tool for face-to-face, online classes and directed studies
  2. students are advised that they cannot copy presentations
  3. online sessions are limited to students enrolled in sessions
  4. online sessions use technology to prevent copying or in its absence faculty post projects for 15 days after their initial real-time or assigned use followed by access to a copy in the library or similar location for on-site use only

Although the process of securing permissions should begin immediately if the multimedia teaching tool will be used for more than two years, other uses do not have the same prescribed time limits: use in presentations at workshops and conferences and in personal portfolios (tenure reviews, job applications).

Classroom Copying

  1. one copy of a chart, graph, diagram, drawing, cartoon or picture from a book, periodical, or newspaper at the request of a teacher for research or use in teaching or preparation to teach a class, or
  2. multiple copies not to exceed more than one copy per pupil in a course at the request of or by a teacher giving the course for classroom use or discussion if each copy made includes a notice of copyright, is for a single course during an academic term, and insufficient time existed to secure permission.

Digitizing Images (Slide Collections) for Educational Use

Although the Conference on Fair Use didn't reach consensus about creating and using digital images for education, they provide some direction. Their guidelines apply only to:

  1. lawfully obtained copyrighted analog images (pre-existing and newly acquired analog visual image collections)
  2. educators, scholars, students, librarians and curators engaged in instruction, research or scholarly activities at educational institutions (non-profit) for educational (non-commercial) purposes

The guidelines permit institutions to:

  1. digitize existing image collections images (typically slide collections), use images for a period of seven years during which time making reasonable inquiry to obtain permissions. After seven years, apply fair use factors for longer term use.
  2. digitize newly acquired collections if images aren't available to purchase or license at a reasonable price in digital format
  3. create thumbnail images only
  4. display through a secure network with notices that images should not be downloaded, copies, retained, shared, modified or used in other ways
  5. create compilations of images for courses if access is limited to students in the course
  6. limit the use of newly acquired digitized analog images to one semester, seek permissions during that semester and thereafter apply fair use factors for longer term use. If the rights owner is unknown, images may be used for three years from first use provided reasonable inquiry is made.

The guidelines permit faculty and students to:

  1. display images in lectures, presentations and non-commercial workshops and conferences
  2. use images in course assignments in fulfillment of degree requirements
  3. display their work in courses in which they are enrolled
  4. retain work in personal portfolios for later uses: graduate school, employment

The guidelines do not address the use of images in publications.

Information Resources

  1. Several web sites list public domain images (no longer protected by copyright and able
    to be used freely without requesting permission).
    1. Public Domain Clip Art
    2. Images of American Political History
    3. Teacher Tap: Images for Educators
    4. U.S. Federal Government Public Domain Images
    5. U.S. Government Artwork Images
    6. U.S. National Archives (includes a mix of public domain and protected images)
    7. Creative Commons-- lists host sites to which licensed images and video can be posted and on which they can be found
    8. Encyclopedia --its mission is to "become the definitive and most effective guide to museum-quality fine art on the Internet"
    9. U.S. Government Photos and Images-- Most of these images and graphics are available for use in the public domain, and they may be used and reproduced without permission or fee
    10. Wikimedia -- "A database of 4,117,373 freely usable media files to which anyone can contribute"
    11. Librarian's Internet Index -- browse and search through different categories
    12. Library of Congress Prints & Photographs Reading Room -- a searchable catalog as well as 'browse by alphabetical category' are available. Read the section on how to obtain images under 'More about this Catalog.'
  2. The Center for Social Media at American University provides an array of information: documentary filmmaker's interpretations of fair use, fair use scenarios, and opportunities to blog: http://www.centerforsocialmedia.org/.
  3. Public Domain Movies and Film provides readily available films for downloading, copying, and performing.

The bottom line when dealing with digital images - follow the same rules as you would when dealing with printed/written works and you will be on the right side of the law.

Music

Downloading Music

Sharing music through peer-to-peer connections is generally illegal because it violates the copyright of the artists and producers. In the past few years the Recording Industry Association of America (RIAA) has brought law suits against students who have knowingly or unknowingly shared music from their personal computers over a high speed network.

For Student Multimedia Projects

Conservative guidelines allow use of 10% (no more than 30 seconds) of music or lyrics, if the project is created for a specific course and is shown in the course and/or is incorporated in a portfolio for later personal uses (job interviews, graduate school applications)

For Faculty Multimedia Projects

Conservative, but not legally binding, guidelines allow use of 10% (no more than 30 seconds) of music or lyrics for up to two years before obtaining permission for teaching, if:

  1. the project is a teaching tool for face-to-face, online classes and directed studies,
  2. students are advised that they cannot copy presentations
  3. online sessions are limited to students enrolled in sessions
  4. online sessions use technology to prevent copying or in its absence faculty post projects for 15 days after their initial real-time or assigned use followed by access to a copy in the library or similar location for on-site use only

Although the process of securing permissions should begin immediately if the multimedia teaching tool will be used for more than two years, other uses do not have the same prescribed time limits: use in presentations at workshops and conferences and in personal portfolios (tenure reviews, job applications).

Other Instructional Uses *

Without securing permission, it is possible to make:

  1. a copy to replace a purchased copy which for any reason is not available for an imminent performance if a purchased replacement copy will be substituted in due course.
  2. a copy of an entire performable unit (section, movement, aria, etc.) that is unavailable except in a larger work and solely for a teacher's research or preparation to teach a class.
  3. a copy of an entire performable unit (section, movement, aria, etc.) for academic purposes other than performance if the copyright owner confirms it is our of print.
  4. multiple copies of excerpts of works, provided that the excerpts do not comprise a part of the whole that would constitute a performable unit such as a section, movement, or aria, but in no case more than 10% of the whole work. The number of copies shall not exceed one copy per pupil and the copies must be made for academic purposes other than performance.
  5. a single copy of recordings of performance by students may be made for evaluation or rehearsal purposes and may be retained by the educational institution or individual teacher.
  6. a single copy of a sound recording (such as a tape, disc or cassette) of copyrighted music from sound recordings owned by an educational institution or an individual teacher for the purpose of constructing aural exercises or examinations and may be retained by the educational institution or individual teacher. (This pertains only to the copyright of the music itself and not to any copyright which may exist in the sound recording.)
  7. a transformative copy of a purchased print copy if the editing or simplifying does not distort the fundamental character of the work, the lyrics are altered or lyrics added if none exist.

Requirements for Permitted Copies Above

  1. Copying to create or to replace or substitute for anthologies, compilations or collective works.
  2. Copying of or from works intended to be "consumable" in the course of study or of teaching such as workbooks, exercises, standardized tests and answer sheets and like material.
  3. Copying for the purpose of performance, except as in 1 above.
  4. Copying for the purpose of substituting for the purchase of music, except as in 1 to 3 above.
  5. Copying without inclusion of the copyright notice which appears on the printed copy.

*Based on the work of several groups in response to hearings on H.R. 2223 (June, 1975).

Media Services Policies regarding Music Downloads

Students should not use copyrighted materials for projects to be aired on PAC 14 or any other broadcasting medium. If students or faculty want to have music in their productions, they can either use copyright free music or purchase it from Gene Michael Production. Since Media Services is part of the Integrated Media Center which collaborates with faculty from Music, Art, and Communication Arts, original music and graphics may be available for video productions.

Multiple Copying/Format Shifting

Music is at the center of the storm nowadays. In some ways, however, today's issues are the same as when VCRs made it possible to copy broadcasts and tape duplicators enabled copying of rented or purchased videos. If it is okay to copy a broadcast for home use, why is it not okay to copy a song from a purchased CD onto a PC or other playback device?
Technology may allow us to move in that direction, but for now format shifting, such as creating an MP3 version of an audio CD, requires the permission of the copyright owner.

The Music Publishers' Association has a copyright webinar to help understand permissions.

Performance/Display

Performing legally obtained copies of sound recordings for instructional purposes, without requesting permission, is fine provided that the performance is

  1. by instructors, guest lecturers, or students
  2. in connection with face-to-face or distance education instruction
  3. for an audience that is directly involved in the teaching activity
  4. delivered in a classroom or place devoted to instruction (library, workshop space, etc.)

The Teach Act, which updates earlier restrictions on performing works in other than face-to-face classrooms, allows the performance or display of any work in an amount comparable to that displayed in the course of a live classroom session (in some cases, entire recordings when essential to a course, e.g., The Operas of Puccini).

Music Databases

  1. Classical Music Library
  2. Classical Scores Library
  3. Classical Music Reference Library
  4. African American Music Reference

(note: all of these are from the same publisher and carry the same copyright statement.)
You may access and use this database in any way that is consistent with U.S. Fair Use Provisions and international law, and make limited numbers of hard or electronic copies for research, education, or other non-commercial use only; for more extended use, it is necessary to obtain prior consent in writing from Alexander Street Press. Fully legal downloads of music tracks are available for a small fee.

Information Resources

    • The Music Library Association provides in-depth information on scenarios and FAQs about
      fair use, performance rights, as well as issues for composers and authors.
    • Public Domain Music provides readily available music for downloading, copying and
      performing.
    • National Association for Music Education guide for music educators provides complete
      copyright information on performance and other issues directed to music educators.
    • Creative Commons lists host sites to which licensed music can be posted and on which
      it can be found.
    • MusicUnited.org provides comprehensive information about music copyright laws, educational efforts, resources for colleges, copyright FAQ, and also includes a list of legal sites.

Online Teaching & The Teach Act

Originally, section 110 of the 1976 U.S. copyright law sanctioned use of copyrighted materials only in face-to-face teaching activities, including closed circuit television. On November, 2002, the Teach Act (Technology, Education and Copyright Harmonization Act) brought copyright law into the digital age. This doesn't diminish fair use principles. It is possible to invoke one or the other to use digital materials in teaching. The benefit of the Teach Act, however, is that it offers clear operating guidelines for accredited non-profit educational institutions.

What Institutions Must Do

  • create copyright policies
  • provide copyright information to faculty, students, and relevant staff
  • provide a notice to students that materials used in classes may be subject to copyright protection
  • limit access to copyrighted materials used in classes to enrolled students
  • retain copyrighted materials for the period that students are enrolled
  • not engage in conduct that could reasonably be expected to interfere with technological measures used by copyright owners to prevent such retention or unauthorized further dissemination
  • apply technological measures to prevent students from disseminating works further (experts acknowledge that such technology is not readily available; hence, compliance may mean finding the best means available)

What Educators Must Do

  • direct or supervise the choice of materials to perform or display
  • ensure materials are integral to class sessions
  • ensure materials are related directly to teaching content (teaching, not entertaining)
  • provide a notice to students that materials used in classes may be subject to copyright protection

What Educators Can Do

Presuming materials are lawfully made and acquired, were not developed and sold for distance education courses, and also meet the conditions above, faculty may

  • transmit non-dramatic literary and musical works in their entirety (poetry, readings from a novel, symphonies - YES;) operas, musicals, musical videos, and plays - NO)
  • transmit reasonable, limited portions of other performances
  • transmit the display of any work in an amount comparable to that displayed in the course of a live classroom session (in some cases, entire videos when essential to a course, Example: The Films of John Ford)
  • convert analog copies to digital if the amount converted is comparable to what that may be legally performed or displayed as outlined above and if a digital copy is either unavailable or available but secured by technology that prevents uses that copyright law allows

The Teach Act specifies works should be accessible only for the duration of courses, but it does not specifically rule out their repeated use.
The following Teach Act checklists were developed at North Carolina State University:
Basic - http://www.lib.ncsu.edu/scc/legislative/teachkit/checklist.html
Expanded - http://www.lib.ncsu.edu/scc/legislative/teachkit/expanded_checklist.html

Requesting Permission to use Copyright-Protected Works

 It isn't always necessary to request permission from a copyright owner. Some materials cannot be protected. Others are no longer in copyright. Copyright protection doesn't last forever. Also, some copyright owners use Creative Commons licenses to spell out uses they will allow. In other cases, fair use can be invoked. Although Fair Use and the Teach Act provisions allow students and faculty to use some copyright-protected materials without asking the permission of the copyright holder or paying for that right, there are a number of instances when seeking permission is simply the best course of action. A few of those include

  • long-term use of materials placed on library reserve
  • long-term use of materials in multimedia creations, unless they (limited portions) are used in personal portfolios or for conference presentations
  • development of course packs that have a clear effect on the market

Obtaining permission is a three-step process:

  • determine if the material is copyright protected (ineligible for protection or out of copyright)
  • locate the copyright owner
  • write a permission letter specifying the specific amount, exact uses, and length of use for any materials requested

Locating a copyright owner or owners can be challenging. Copyrights can change hands and individual rights can be transferred to different people. A creator can retain print rights and sell digital rights. Some formats frequently involve more than one copyright owner (e.g., photographs of art works). Precisely because locating owners can be both time-consuming and unsuccessful, legislators continue to introduce legislation to allow some uses of materials (orphan works) after making reasonable attempts to find copyright owners. The bottom line is to be patient
Locating Copyright Owners & Owner Information

  • Examine the copyright notice carefully, as it identifies the copyright holder
  • Contact the creator - (use Amazon, Google, etc.)
  • Contact the publisher (Rights Department)
  • Search Library of Congress records or pay for a search
  • Try author searches on the web or use a library databases with biographical information (death dates)
  • Check genealogical and legal sources
  • Contact archivists responsible for collections of specific authors. The Society of American Archivists (SAA) issued "Orphan Works: Statement of best practices," a 16-page report that provides what professional archivists consider the best methods to use when attempting to identify and locate copyright holders.
  • Use an authors' society or a publication rights clearinghouse (see list below)
  • Use the Firms Out of Business Database for the names and addresses of copyright holders/contact persons for out-of-business publications/publishers

There are numerous organizations managing rights for artists and creators. A few follow. Additionally, two institutions maintain extensive lists:

Copyright Licensing Organizations & Publications Rights Clearinghouses

REMINDER: The fact that permission can be obtained does not imply a use is unfair. Effect on the market, while singularly important, is only one of four factors to weigh in a fair use analysis.

Software

 The academy has an Acceptable Use Policy for computer and network use that covers copyright          
issues and netiquette.
A few simple guidelines prevail for using, copying and sharing software:

  1. Although licensing terms may be challenged, it is better to read and follow them or return software if the terms are not acceptable.
  2. If licenses limit software use to a single user or computer, then programs cannot be loaded onto additional computers.
  3. If software is sold or given to another person it must be removed from the first user's computer.

Rather than issue explicit approved uses or restrictions on software use, the Conference on Fair Use created illustrative scenarios of good practice.

  1. A student at a nonprofit educational institution licenses a computer program for a personal computer, and uploads the computer program to the school library's network, where it can be accessed and copied by several hundred students, faculty and staff without permission of the copyright owner.

There is copyright infringement by the student. Their unauthorized reproduction of the computer program is not covered by Section 109(b) exemptions for nonprofit library lending for nonprofit purposes or nonprofit educational institutional lending.

  1. A professor places a legally owned copy of a program on reserve. It has no copyright notice. May the library circulate the program?

The absence of a copyright notice probably signals that the program is a copy. While owners and libraries may usually make one archival copy, only one copy may circulate at a time. On this basis, the answer would be no. If the professor purchased a second copy to place on reserve, the answer would be yes, provided there were no licensing restrictions. The library could also make its own archival copy. In this case, however, it would be extremely beneficial if the professor provided additional information to students to avoid further copying.

Public Domain Software

There are several sites providing free software. Public domain software is free, can be used without restrictions, and is no longer or never was protected by copyright. By contrast, freeware and shareware, often also free, at least for a time period, are usually copyrighted.