The scenarios below are intended to help faculty and students see how fair use works. These scenarios are illustrative, not exhaustive and may not apply to your situation. If you want to talk through your own fair use scenario, please get in touch.
The examples deal with situations involving:
Journal Article for Classroom Use
SCENARIO 1: A professor copies one article from a periodical for distribution to the class.
FAIR USE? Most likely. 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 Web Page
SCENARIO 2: A professor 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 3: A professor 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.
FAIR USE? Generally speaking, you need to obtain permission before reproducing copyrighted materials for an academic coursepack. It's the instructor's obligation to obtain clearance for materials used in class. Instructors typically delegate this task to one of the following: clearance services, university bookstores or copy shops, or Department administration.
Textbooks
SCENARIO 5: A professor wishes to use a textbook he considers to be too expensive. He makes copies of the book for the class.
FAIR USE? No. Although the use is educational, the professor 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 professor should place a copy on reserve or require the students to purchase the book.
SCENARIO 6: A professor 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 professor may place a legally obtained copy of the textbook, not the photocopies, on reserve.
Public Domain Materials
SCENARIO 7: A teacher copies a Shakespearian play from a copyrighted anthology.
FAIR USE? Possibly. The play itself is in the public domain. Works in the public domain may be freely copied and used, and in the case of works with expired copyright terms, used without the former copyright owners’ permission. However, collections, translations and edited versions of works that contain or incorporate works in the public domain may be protected by copyright.
Unpublished Letters
SCENARIO 8: A professor of psychology desires to edit and publish a collection of unpublished letters in the library archives.
FAIR USE? The answer to this scenario requires further information. Has the copyright protection expired? Are the letters subject to any agreement the library made with the donor? Can the author or authors of the letters be located? Is the library agreeable to publication? This is the type of problem that requires a detailed legal and factual analysis. One should consult the institution's office of legal affairs for advice.
Journal Article for Personal Use
SCENARIO 9: A professor wishes to make a copy of an article from a copyrighted periodical for her files to use later.
FAIR USE? Yes. This is a classic example of personal fair use so long as the professor uses the article for her personal files and reference.
Out-of-Print-Book
SCENARIO 10: A library has a book that is out of print and unavailable. The book is an important one in the professor's field that she needs for her research. The professor would like to copy the book for her files.
FAIR USE? Probably. 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 professor 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 11: Using the same facts as explained in SCENARIO 10 could the professor copy the book and place the book on reserve in the library? Could the professor scan the book into her computer and place the book onto the World Wide Web?
FAIR USE? If the professor placed the book on reserve in the library, the use might be considered a fair use. Library policies might require that the professor prove that it is a lawfully made copy. However, if the professor placed the book on the Web, then the use is not a fair use. Placement on the Web allows unlimited access to the book. This would affect the copyright holder's public distribution of the book.
Showing Video Material for Classroom Instruction
SCENARIO 12: A teacher wishes to show a copyrighted motion picture to her class for instructional purposes.
FAIR USE? Yes, since it is for classroom instruction and no admission fee is charged. Tuition and course fees do not constitute admission fees.
Showing Video Material for Online Instruction
What if the teacher in SCENARIO 12 wishes to include a digital copy of the motion picture on a password-protected course website for teaching online?
FAIR USE? Most likely not. Teachers may post only "reasonable and limited portions" of media works when teaching online. Exceptions are streaming videos for which the library has purchased institutional licenses.
Copying Video Material for Classroom Instruction
SCENARIO 13: A teacher makes a copy of the video material described in SCENARIO 12 for a colleague to show in her class at the same time.
FAIR USE? No. The teacher may lend her personal copy of the video materials to a colleague for this purpose.
Showing Video Material That Is in the Public Domain for Non-classroom Use
SCENARIO 14: A professor wishes to raise funds for a scholarship. She shows a motion picture on which the copyright has expired and charges admission fees.
FAIR USE? Yes. The copyright of the motion picture has expired, which places the motion picture in the public domain.
Showing Video Material That Is Copyright-Protected for Non-classroom Use
SCENARIO 15: The facts are the same as those in SCENARIO 14 except that the movie is protected by copyright.
FAIR USE? No, because it infringes the copyright owner's right to market the work.
Classroom Presentation with Visual Media
SCENARIO 16: A teacher or student prepares and gives a presentation that displays photographs. Permission was not obtained to use the photographs.
FAIR USE? Most likely. 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
What if the presentation incorporating the photographs discussed in SCENARIO 16 is broadcast to a distant classroom?
FAIR USE? Most likely. This use would likely be considered fair use if access to the presentation is limited to individuals who are enrolled in a course and viewing the presentation for purposes of criticism, comment, teaching or instruction, scholarship, or research. Videotaping of Classroom Presentation
What if the teacher's or student's presentation explained in SCENARIO 16 is videotaped or otherwise recorded?
FAIR USE? Most likely. This use would likely be considered fair use, provided the recording is used for educational purposes such as student review or if the recording is for instruction.
Broadcast of Videotaped Classroom Presentation
What if the SCENARIO 16 presentation incorporating the photographs is videotaped and rebroadcast? Is this a fair use?
FAIR USE? Most likely. The use of the photographs is likely fair use as long as the presentation is videotaped and rebroadcast only for instruction. Incorporation of Photographs in an Electronic Presentation (Excluding the Internet)
What if the SCENARIO 16 presentation is included in an electronic presentation such as Microsoft's Power Point?
FAIR USE? Most likely. This should be considered fair use as long as the electronic presentation is for educational or instructional use.
Making Changes to Photographs
What if the student or teacher were to change the attributes of the pictures discussed in SCENARIO 16?
FAIR USE? Most likely. This would likely 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 17: 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? Mostly likely. This is likely to be a fair use if instruction is occurring.
Use of Music in Videoconference Instruction
Same facts as SCENARIO 17. The presentation is broadcast to a distant classroom using two-way interactive video.
FAIR USE? Most likely. The use of interactive video for educational instruction is generally considered a fair use. Use of Music in Videotaped Classroom Presentation
What if the teacher's or student's presentation described in SCENARIO 17 is videotaped or otherwise recorded?
FAIR USE? Most likely. This is probably fair use if instruction is occurring.
Use of Music in Broadcast of Videotaped Classroom Presentation
What if the SCENARIO 17 presentation is videotaped (or otherwise recorded) and rebroadcast?
FAIR USE? The answer is not clear. If instruction is occurring and there are no admission charges to the rebroadcast, analysis weighs in favor of fair use. Tuition and course fees do not constitute admission fees.
Use of Music as Content in a Classroom Presentation
SCENARIO 18: A professor teaches an opera course, and the professor creates a presentation. The presentation contains the works of ten contemporary artists and is presented to a new class every semester to accomplish specific teaching goals.
FAIR USE? Most likely, provided the use of the presentation continues to be for instruction.
Use of Music in Classroom Presentations on the Internet
What if the opera classroom presentation (SCENARIO 18) or the presentation containing background music (SCENARIO 17) is recorded and placed on the Internet?
FAIR USE? Most likely, so long as access is restricted only to members of the class.
Journal Article Posted in the Online Classroom
SCENARIO 19: A professor scans a journal article or book chapter and posts the file for an online course
FAIR USE? Most likely; posting an article for classroom use in this manner is generally fair use the first time the resource is used, provided access to the article is limited to students enrolled in the course. However, large class size or repeated use of a copyrighted work in future academic terms may weigh against fair use.
Downloaded Article Posted Online
SCENARIO 20: The professor finds an article freely available online and downloads the article. She posts the downloaded file in the password-protected online course.
FAIR USE? This is likely fair use the first time the document is posted; however, the document is protected by copyright even though it was located free of charge online. The preferred way to provide access to online documents is to post a link directing students to the article's location online.
Films or Other Multimedia Posted in an Online Classroom
SCENARIO 21: Each term, a faculty member shows a film that illustrates some important curricular ideas in his face-to-face course. He is developing the same course for online delivery and digitizes the film, posting it in the online classroom and making it accessible only to students in the course.
FAIR USE? No. Even though fair use has been interpreted to allow the professor to show the entire film in a face-to-face teaching environment, the TEACH Act stipulates that only excerpts may be used in the online version course.
Student Project for Distribution on the Internet
SCENARIO 22: A student is taking a class for which the instructor has required that a particular assignment be created for unlimited distribution on the web. A student includes an audio segment of copyrighted music (video, news broadcast, or non-dramatic literary work).
FAIR USE? Most likely not. Since the teacher specifically stated that the project is being created for distribution over the web, this is not a fair use of any of the listed copyrighted materials and permission should be obtained. Student Project on the Internet with Restricted Access
Access to the work of the student in SCENARIO 22 will be restricted to other students in the class.
FAIR USE? Most likely.