FAIR USE GUIDE

Primer for Creating Digitally Responsible Audio-Video Material: A tool for teachers and students for creating multimedia projects. Explains copyright, fair use, creative commons license and public domain.

WHAT IS COPYRIGHT?
Copyright law determines who controls the use of a creative work. Creative works can take many forms, such as a book, newspaper article, sound or video recording, photograph, painting, or sculpture. Under the law, the author of a creative work gets certain rights the moment the work is produced in a permanent form. The author can be thought of as the person who made the creative choices behind a given expression. Authors of creative works get five major rights over the work. They control who reproduces the work, how the work is distributed, how the work is displayed (if it is something that can be displayed), how it is publicly performed (if it is something that can be performed), and whether to create derivative works based on the original. There are some works not protected by copyright, and there are a few exceptions to the general requirement of permission (such as fair use, which is discussed below), but these are very limited.

GETTING PERMISSION
If you find a creative work that you wish to use, you can always see if you can get permission to do so. In copyright terms, this means you are getting a license. This is easily done if youre using a work that a friend created. But if youre using something that a celebrity or an anonymous stranger created, this can be a challenge; you may not be able to find the person, and if you do, he or she may decide not to give you permission.

OPEN LICENSE AND CREATIVE COMMONS

A useful and easy way to get permission is to look for works where the author has given the whole world permission to use the work in certain ways. This is called an open license to use a work. The organization Creative Commons created a set of open licenses that are frequently used and easy to understand. Creative Commons licenses allow authors to select particular options for use of their works by the public, so be sure to check the specific license for the work you plan to use2. You can find Creative Commons-licensed materials and other openly licensed materials through a variety of websites listed at the end of this document. In most cases only the copyright owner may grant a license to use the work. If material is posted online by someone who does not have the right to do so, that person cannot grant a Creative Commons license or any other kind of permission to use the work, and you might violate copyright if you rely upon an invalid license.

Derivative works are works that build upon the original by recasting, transforming or adapting the original in some way for example, a translation of a song into a different language, a movie based on a novel, or a sequel to a book. All Creative Commons licenses require you to give attribution (or credit) to the original author when you incorporate licensed material into your own work. Usually the authors will indicate how they like to be credited. An author can also select one or more of the following options when choosing a Creative Commons license: Non-Commercial. If a Creative Commons license is Non-Commercial, you cannot use the work to make money or some other form of commercial gain. Share-Alike. If a Creative Commons license is Share Alike, you can use the authors work only if you also license your own work to the world under the same (or a similar) Creative Commons license. No Derivatives. If a Creative Commons license is No Derivatives, you can copy and distribute the work, but you are not allowed to alter, transform, or modify the work in any way.

Developed for the News Literacy Project by Jeff Hermes and Andy Sellars of the Digital Media Law Project at Harvard Universitys Berkman Center for Internet & Society and Lam Thuy Vo and Darragh Worland of the News Literacy Project.

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PUBLIC DOMAIN (WORKS NOT PROTECTED BY COPYRIGHT)
Copyright does not cover all forms of expressive works, and it does not last forever. If a work is not under copyright, you are free to use it without restriction and do not need to ask permission. Works like this are often referred to as being in the public domain. A small number of works get no copyright at all. If a work has absolutely no creativity to it, the work is not covered by copyright. The classic example of this would be the white pages of a phone book: an alphabetical listing of all people in a town and their telephone numbers. There are no creative choices made by the author regarding content or selection, so no copyright attaches. This is a very narrow exception; if any creativity is involved in the selection of material or its arrangement, the author probably has the protection of copyright law. Works created by the United States government are not protected by copyright. This includes all three branches of the federal government, including all federal agencies, but does not cover works created by state or local governments or works that were commissioned by the federal government but actually produced by a private author. Finally, works whose copyright term has expired are also in the public domain, and thus free to use. Copyright terms vary, but there are a few general benchmarks that you can use to see if a works term has lapsed. Works published before 1923 are in the public domain. Works published between 1923 and 1964 are probably still under copyright, unless the author (1) failed to file a renewal notice with the government 28 years after the work was first published or (2) failed to place a copyright notice (including the authors name, the year and the symbol or the word copyright) on the work. (This will require considerable research to figure out!) Works published between 1964 and 1988 are still under copyright, unless the author failed to include a copyright notice when the work was first published. (If the work was published after 1977, the author also had a chance to correct the error by reattaching the copyright notice shortly after first publication.) Works created after 1988 are still under copyright in all cases. Unpublished works enter the public domain 70 years after the author has died.

In addition to copyrights limited term, there is another important limitation to consider. Copyright does not extend to underlying facts or ideas. Instead, it only gives rights to authors to control their specific expression. For example, I can write a book about the moon landing, but that does not give me the right to stop other people from using the same historical facts about the moon landing in their books or movies. Facts are in the public domain. Similarly, I can write a book about a person who becomes a superhero after a freak accident. That does not give me the right to stop other people from writing similar stories with the same idea. I only get to control how my particular story is used.

FAIR USE
Fair use is an exception to copyright law that applies when the normal rules of copyright produce unfair or absurd results. Fair use allows people to use the works of others without permission in certain circumstances, but whether a use is fair will always depend on the specific situation. This is best illustrated by an example: say I write a review about the Twilight books, and want to talk about how the books are poorly written. To illustrate my point, I include several passages from the books. If we were to apply the normal rules of copyright, I would need to get permission from the author of Twilight to write the negative review. Can you imagine that conversation? Hello, Stephanie Meyer? Can I use several quotes from your book to show how bad you are as a writer? She would say no, of course, and I would run the risk of getting sued for copyright infringement if I wrote my negative review. Judges realized that we do not want to discourage people from using the works of others in ways like this, so the courts created the fair use exception. Judges get the final say as to whether a use is fair. So while you can make an educated guess as to whether a particular use is fair in this context, you will never know for sure unless you are sued for copyright infringement and a judge says so. There are no bright line rules as to when fair use applies.
Developed for the News Literacy Project by Jeff Hermes and Andy Sellars of the Digital Media Law Project at Harvard Universitys Berkman Center for Internet & Society and Lam Thuy Vo and Darragh Worland of the News Literacy Project.

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EVALUATING FAIR USE
Federal statutory law provides a series of specific examples of the kinds of uses that might be considered fair, including: criticism (using a work to show flaws in the work); comment (using a work to make a larger point about the works context or place in society); news reporting (using a work when the content of the work is relevant to the news story); teaching (using a work in the classroom as an important part of the learning process); and scholarship and research (building upon prior works through comment and argument to advance knowledge). The most relevant of these examples to this class is news reporting. However, not every use in a news story (or the other four examples listed above) is a fair use, and there are fair uses that dont fit into one of these five boxes. Over the course of time, judges have developed a habit of examining certain factors to determine whether a use is fair, while taking the examples above into account. The most important are: Changes in context and/or nature of use: Uses that take a work and radically change either how the work was being used by the author or the context of the work are often found to be fair uses. For example, say a song is becoming infamous due to its controversial lyrics. Playing a piece of that song in a news broadcast about the controversy would change the context significantly: instead of using the song for its normal purpose (to listen to for ones own enjoyment), it is using the song for a new purpose (to show how lyrics are controversial). This is likely to be a fair use. On the other hand, if you are simply using the song to make your broadcast more enjoyable, you would likely need to get a license. How much is used: The amount of an original work that you use should be reasonable based on what youre using it for. The more you take, the less likely the use will be found to be fair, especially if there is no legitimate reason to include some parts of the work. If a news broadcast plays a verse or two of a song as part of a discussion of the songs controversial lyrics, this use would likely be found to be fair as using the amount necessary to make the point. But if the broadcast plays the songs 45-second guitar solo as well, that would be less likely to be found fair (because there is no reason to include an instrumental in a story about the songs lyrics). How the use affects sales for the original: Judges are sensitive about uses that make it harder for the original author to make money off of his or her original work. Be particularly careful about uses that would make your use a substitute for the original. You also should not deliberately ignore an existing way to get permission. If there is an established way to obtain a license for your use, but you decide not to bother, that could lead a judge to find that your use was not fair.

The balancing of factors such as these is the primary difficulty in working with fair use you never know if judges will call a use fair or not until they take the time and carefully consider your particular case. Center for Social Media, Code of Best Practices in Fair Use for Online Video

Developed for the News Literacy Project by Jeff Hermes and Andy Sellars of the Digital Media Law Project at Harvard Universitys Berkman Center for Internet & Society and Lam Thuy Vo and Darragh Worland of the News Literacy Project.

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SOURCES AND ADDITIONAL READING:
Sources and Additional Reading: Center for Social Media, Code of Best Practices in Fair Use for Online Video Digital Media Law Center/NYU Journalism Handbook for Students, Ethics, Law and Good Practice, Research Materials and Copyright Student Press Law Center

SOURCES FOR CREATIVE COMMONS-LICENSED MATERIAL

Creative Commons: http://search.creativecommons.org/ (providing access to a variety of search engines covering all forms of media) Flickr: http://www.flickr.com/creativecommons/ (photos, drawings, clip art, and other still images) The Free Music Archive: http://freemusicarchive.org/ (music, much of which is licensed through Creative Commons) Wikimedia Commons: http://commons.wikimedia.org/wiki/Main_Page (still images, music and video, most of which is openly licensed) Al-Jazeera Creative Commons Repository: http://cc.aljazeera.net/ (news footage licensed by Al-Jazeera English under Creative Commons) Wired Magazine: http://www.wired.com/rawfile/2011/11/creative-commons/ and http://www.flickr.com/photos/wiredphotostream/ (Wired Magazine staff photos are Creative Commons-licensed; these are two large collections of those photos) Clker: http://www.clker.com/ (clip art, most of which is licensed for use without any restrictions)

Developed for the News Literacy Project by Jeff Hermes and Andy Sellars of the Digital Media Law Project at Harvard Universitys Berkman Center for Internet & Society and Lam Thuy Vo and Darragh Worland of the News Literacy Project.

NEWS LITERACY PROJECT

115