When determining whether or a use of copyrighted content is fair, it is important to weigh the following four factors:
The library will not digitize videos in the collection for online student viewing. If your students need to view a film for educational purposes, then it may be possible to make a fair use argument to digitize the material yourself, so that students may view it through a streaming service.
If you determine its possible to make a fair use argument, if copying a video,please consider the following to put yourself in the best position to assert a fair use argument.
The library has licensed digitized videos that can be found through the library catalog.
To best position yourself to assert a fair use argument when using video, consider doing the following:
These examples are intended to model the thought processes instructors should engage in when determining whether an intended use is fair given the particular facts at hand. A final determination of fair use can only be made in a court of law. These pages were created to provide basic copyright information and are not a substitute for legal advice.
Professor Wang is teaching an online Introduction to Film Studies course. Her face-to-face version of the class meets Mondays, Wednesdays, and Fridays for 50 minutes, with three-hour film screening sessions on Tuesday evenings. Students in the class learn about formal analysis, genre studies, film history, and theory. Through class lectures and readings, watching films, and several short papers, students gain the basic critical tools necessary for understanding and analyzing the language of motion pictures. The films studied in the course are: Casablanca (1942, Michael Curtiz), Touch of Evil (1958, Orson Welles), Breathless (1960, Jean-Luc Godard), The Virgin Suicides (1999, Sofia Coppola), The Bicycle Thieves (1948, Vittorio De Sica), and Walk Hard (2007, Jake Kasdan).
The online course is being offered over the summer. Many students are working full time or have moved home, therefore they are not able to go to the Media Resources Center in the university library to watch the films there. So that students can view the assigned movies, Professor Wang asks the library to upload their DVD copies of the films to the university's streaming server. The streamed films will be available to students through Brightspace for the duration of the summer semester only. Only students registered for the course will be able to access the films, and students will not be able to download or copy the films. Is this fair use?
Yes, Professor Wang's use is transformative, since she is using films originally produced for entertainment purposes to educate students about film history and theory. The professor and the students are subjecting the films to critical commentary and detailed analysis in a noncommercial educational context.
These films are creative works, and they were used in their entirety, which would tend to weigh against fair use. However, given that the use is transformative and takes place for educational purposes, the use is more likely to be fair. Students are not normally expected to purchase copies of films as course materials; rather they rely on the copy acquired by the university library. In this way, Professor Wang's streaming of the films did not cause market harm to the copyright owners.
Fair use: Yes.
Note: The transformative and educational nature of Professor Wang's use of the films and the facts that access was limited to students enrolled in her class and that students could not copy or download the films support a fair use argument. This does not mean, however, that the copying of video content to university servers in order to stream it to students will not be challenged by rightsholders. In fact, the Association for Information Media recently sued the University of California Los Angeles for copyright infringement for doing exactly this. The case was dismissed on procedural grounds, so no decision was rendered on the legality of streaming.
UCLA faculty produced a strong statement of principles on the use of streaming videos and other educational content, asserting that "streaming video is an essential type of content for instruction" that "must be available in the virtual classroom," and that "streaming technologies serve the purpose of time-shifting for students and faculty alike." They believe that "if it would be lawful for a teacher to show a particular piece of multimedia to students enrolled in a class that meets in a physical classroom, it should be fair use to permit the viewing or hearing of that multimedia, through time-shifting technologies, in a virtual classroom that restricts access to those same enrolled students."
In the 1984 case Sony Corp. v. Universal City Studios, Inc., the Supreme Court held that time shifting was fair use in connection to the noncommercial home recording of television shows for delayed viewing because it did not deprive the copyright owners of revenue.
An Issue Brief from the Library Copyright Alliance on the streaming of films for educational purposes suggests that "courts are likely to treat as fair use many instances of streaming video to students logged in to class sites." The brief's authors write, "Courts likely would treat educational uses of entertainment products, such as uploading a feature film to a course website so that students could stream it for purposes of analysis, as repurposing" [i.e. as transformative use]. The brief goes on to suggest that "educators could buttress their fair use claim by recontextualizing works on course websites through selection and arrangement and the addition of background readings, study questions, commentary, criticism, annotation, and student reactions."
Professor Soleway is teaching an online course on the depiction of divorce in popular culture. His course notes are posted online in Brightspace along with background readings and other course content. For a segment on divorce in popular film, Professor Soleway digitizes short clips from each of three movies: Divorce American Style (1967, Bud Yorkin), Kramer vs. Kramer (1979, Robert Benton), and The Squid and the Whale (2005, Noah Baumbach). He uploads the clips to the university's streaming server and embeds them in his course notes in Brightspace.
Professor Soleway's course notes set the context for each clip by prefacing it with an explanation of what he wants students to watch for. After each clip, he elaborates on what he thinks it illustrates about the popular representation of divorce. After viewing the clips, students are given a list of questions that require them to critically reflect on the content of the clips. Students post their responses in the discussion section of the course site. Is this fair use?
Yes, Professor Soleway's use is transformative, since he is using films originally produced for entertainment purposes to examine cultural representations of divorce. The fact that he surrounds each film clip with commentary that places the clip in the context of his broader argument and that students are required to critically analyze the clips' contents strengthens the transformative nature of his use, as does the fact that his use takes place in a noncommercial educational context.
These films are creative works, but limited portions of each were used, just enough to convey how the film treated the topic of divorce. Given that limited portions of each film were used, that Professor Soleway's use is transformative, and that the use took place in a noncommercial educational setting, the use is likely to be fair.
Fair use: Yes.
Professor Mercer is preparing to teach a face-to-face nursing class. She plans to use Brightspace to post the course syllabus and grades and to allow students to hand in assignments. As she's working on her syllabus, she receives in the mail an examination copy of Mosby's Nursing Video Skills - Student Version DVD, 4th Edition (Elsevier, 2013). She reads the description on the back of the DVD: "With high-definition videos demonstrating how to perform nursing procedures, Mosby's Nursing Video Skills provides up-to-date, step-by-step instructions for the most important nursing skills. Printable procedure checklists and interactive screens of required equipment make it easier to learn and remember skills, and new animations show what’s happening inside the patient’s body. For each skill, NCLEX exam-style review questions help you assess your knowledge." Noting that five of the procedures she will be covering in class are included on the DVD, she asks the library to copy these segments and upload them to the university's streaming server so that she can embed them in Brightspace for students to view. Since there are a total of 130 procedures on the DVD, she's using less than 5% of the content. Is this fair use?
No, Professor Mercer's intended use is not transformative. The original purpose of the DVD is to instruct nursing students in how to perform certain skills, and Professor Mercer wants to use the video for the same purpose.
This video is a work of nonfiction, which favors fair use. However, the DVD is marketed for nursing students. It is likely that Professor Mercer's intended use of the video (and other uses like hers, were they to occur) would damage the market for the DVD, since students would rely on the streaming content instead of purchasing their own copies of the DVD. Thus the amount she wants to use, though a small part of the total, is not appropriate.
Fair use: No.
Note: According to the Code of Best Practices in Fair Use for Academic and Research Libraries, "Closer scrutiny should be applied to uses of content created and marketed primarily for use in courses such as the one at issue (e.g., a textbook, workbook, or anthology designed for the course). Use of more than a brief excerpt from such works on digital networks is unlikely to be transformative and therefore unlikely to be a fair use." The fair use argument is helped, however, by the fact that the videos were placed in Brightspace and limited to students enrolled in the course.
As explained in the Code of Best Practices in Fair Use for OpenCourseWare, "'Bright line' tests and 'rules of thumb' are not appropriate to fair use analysis, which requires case by-case determinations made through reasoning about how and why a new use recontextualizes existing material." Thus, while amount used is an important factor in whether any use is fair, fair use cannot be decided by relying on the specific percentage of a work used or similar guidelines.
Professor Gutierrez is teaching an online women's studies course. Week three covers the depiction of women in advertising. Professor Gutierrez plans to assign students two articles and one book chapter as required reading and to have them watch the documentary Killing Us Softly 4: Advertising's Image of Women (2010, Jean Kilbourne). Students will be required to answer questions and share their reactions about the readings and the film through the discussion section of the course website on Brightspace. Professor Gutierrez will then facilitate a real-time class discussion through Brightspace's web meeting function.
Since the class is fully online, Professor Gutierrez hopes to load the documentary film on the university's streaming media server. She speaks with the Media Resources librarian, who confirms that the university library has purchased the DVD at the college and university rate of $295. The librarian does some more investigation and learns that the distributor of the film, the Media Education Foundation, offers a 1-year streaming subscription to the video for $150 and a 3-year streaming option for $295. Their streaming videos can easily be embedded in learning management systems like Moodle, Blackboard, and Brightspace. But since the library has already purchased a copy of the film, the librarian proceeds to upload it to the university's streaming server for Professor Gutierrez. Is this fair use?
No, Professor Gutierrez's intended use is not transformative. She is using the documentary for the same purpose as it was intended: to educate students about the depiction of women in advertising. Indeed, she is using the film to convey the content of the course to the students instead of, for example, compiling her own examples of women in advertisements and incorporating them into lecture notes that she herself wrote.
This video is a work of nonfiction, which favors fair use. However, the DVD is marketed as an educational tool, thus its use for in an educational context is not transformative.
An argument for fair use could nonetheless be made on two grounds:
The fact that the Media Education Foundation offers a streaming option, though, would weaken this argument for fair use since they could show market harm through the loss of streaming revenue.
Fair use: Probably not.
Professor Peterson is teaching an online English seminar that examines discourses surrounding anti-drug messaging. In the course, he and his students will critically evaluate public service announcements, anti-drug campaign material from government agencies and non-profit advocacy groups such as the Partnership for a Drug-Free America, and selected articles from newspapers and popular magazines warning of the dangers of drug use. He plans to begin the course by examining one of the earliest pieces of anti-drug propaganda, the 1936 anti-marijuana film Reefer Madness. Fortunately, the university library owns a copy of this cult-classic. Professor Peterson asks the media librarian to upload the video to the university's streaming media server so that the students in his online class can access it. Is this fair use?
A fair use analysis is probably not necessary. Reefer Madness is listed on a number of websites as being in the public domain. If this is the case, Professor Peterson is free to use it without restriction.
Note: Determining whether a work is in the public domain can be difficult and time-consuming. For more information, see the "Use resources in the public domain" box on this guide.
Professor Peterson need not bother to ask the library to upload its copy to the streaming server. The film is freely available online in multiple locations, including the Internet Archive, Amazon.com, and YouTube.