FAIR USE IN 5 MINUTES

Martha Kelehan, CC-BY

Your Big Question: Can I Re-use This?

Freely Available on the Web ≠

Free to Re-use

http://sites.tufts.edu/copyrightliteracy/resources/

Fair Use Assessment

Copyright law: you must consider all 4 factors No magic formula that adds up to 100% fair Fair Use is about critical thinking and

balancing your comfort level with risk and what you lose by not using the material

For more detail, see http://researchguides.library.tufts.edu/copyright and http://sites.tufts.edu/scholarlycommunication/?page_id=20

4 factors

1) Amount and purpose of the use

2) Nature of material

3) Amount of use 4) Market effects

#1 Amount and Purpose of the Use Probably the most important factor How do you want to use the copyrighted

material? Why this specific thing? Can you use

something else instead?Leans towards less fair

Leans towards more fair

Chosen for illustrative or aesthetic purposes; commercial setting

Transformative; parody; comment or critique; educational setting; non-profit

#2 Nature of the Material

More creative works should be more protected.

Very creative works can still be found to be fair.

Leans towards less fair

Leans towards more fair

Creative; fictional Less creative; non-fiction

#3 Amount of Use

Photocopying guidelines (“excerpt is not more than 1,000 words or 10% of the work, whichever is less”) were created by publishers. Just guidelines, not law.

Sometimes you need the whole thing for your re-use. Courts have found this to be OK in certain cases.Leans towards less

fairLeans towards more fair

Using the whole thing; using the “heart” of the work

Using just what you need

#4 Market effects

Is the market for the original thing harmed by your re-use?

Asking for permission (and even getting an outright denial) still does not mean your use can’t be fair.

Leans towards less fair

Leans towards more fair

There is a functioning market for re-use rights; original loses value after your re-use; your re-use acts as substitute for original

No (reasonable) market exists; no harm to the original

Transformative is key

If it’s TRANSFORMATIVE, it creates “new meaning, expression, or message”

NB: If it’s not transformative, you may still be able to claim fair use based on other the other factors, it’s just less a home run.

Two Case Studies on Transformative Thumbnail Images in Google Kelly v. Arriba-Soft Thumbnail images were

reproduced next to search engine results to help people decide if they wanted to click on a link or not

Thumbnails were of reduced quality and size and don’t compete with the purpose of the original images; the context and use is so distinct from the original as to be transformative.

Grateful Dead poster case Bill Graham Archives v. Dorling

Kindersley Ltd. DK asked for permission to publish 7

images of Grateful Dead posters/ticket stubs in a coffee-table book; they found the license fees for permission too high and published the book anyways

Images of poster were scaled down and placed in a timeline of events in the history of the band

Even though there was a marketplace to license the images, the courts found it the new use of the image - placing a poster advertising a concert alongside other images situating it in a distinct historical context - to be so transformative that the market effects were found to not matter.

See Stanford’s Fair Use pages for more examples of important cases – http://fairuse.stanford.edu/overview/fair-use/cases/

For Aufderheide and Jaszi, the heart of a fair use assessment is 3 questions:

Is it transformative? Is the amount appropriate to the use? What would my peers say?

Aufderheide, Patricia and Peter Jaszi.  Reclaiming Fair Use: How to Put Balance Back in Copyright.  Chicago: The University of Chicago Press, 2011.  Print.

Questions? Ask a Librarian

Martha.Kelehan@tufts.edu

617-627-2092

5 More Minutes of Fair Use

With the person next to you, take 5 minutes to discuss your assigned case study.

Find more case studies at http://sites.tufts.edu/copyrightliteracy/resources/.

Wow, you are committed. 5 more minutes of fair use.

FIND IT. DECIDE IF YOU CAN USE IT. DOCUMENT IT.

Librarians are not the Copyright Police.

Organization is Key

Video essay projects will require a lot more sources than you are used to

Agree on a system for sharing and tracking info (RefWorks, Zotero, Google Drive, Tufts.Box)

Keep track of where you find things Keep track of the logic you use to *why*

you can use it

Best practices in citing for video essay projects

Citation style doesn’t matter so much, use whatever your prof. wants (for help with major styles, see http://researchguides.library.tufts.edu/CitingSources)

Break out by format (music, images, video clips, scholarship informing your argument).

Include an annotation about why you think you can use it (claiming fair use, licensed by the library, public domain, etc.)

Sample Bibliography for a Video Essay Project

Bob Marley and the Wailers. “Concrete Jungle.” Catch a Fire. New York: Universal-Island Records, 2001. CD.Fair use. We used an 8 second clip ripped from a CD in our personal collection. We use this short clip to play onscreen over images from Kingston in the 1970s to set up a discussion of the violence plaguing the country during the Manley years.

Harrod, Jeffrey. Trade Union Foreign Policy: A Study of British and American Trade Union Activities in Jamaica. Garden City: Doubleday, 1972.Fair use, excerpts from a book. We quote one passage of the book to make an argument about the role of unions in the unrest of the period. The source is identified via the voice-over.

Map of Jamaica. Photograph. Encyclopædia Britannica Image Quest. Web. 31 May 2013. http://quest.eb.com/images/118_801256.Library license via Encyclopedia Britannica Image Quest. Educational use.

“Rosalynn Carter with Prime Minister of Jamaica Michael Manley, 05/31/1977.” Wikimedia Commons. Web. 31 May 2013. http://upload.wikimedia.org/wikipedia/commons/b/b4/Rosalynn_Carter_and_Michael_Manley_1977.png. Public domain via Wikimedia Commons. Originally from National Archives and Records Administration.

Thompson, Michael (freestylee). “Massacre in Tivoli Gardens.”Flickr. Web. 31 May 2013. http://www.flickr.com/photos/freestylee/4636672885/. Creative Commons license via Flickr. CC-BY-NC 2.0.

For more examples, see http://sites.tufts.edu/copyrightliteracy/resources/

Questions? Ask a Librarian

Martha.Kelehan@tufts.edu

617-627-2092