Media for Class Presentations: Inclusive Representation: Determining Fair Use

Fair use is a legal principle that allows for limited uses of copyrighted materials without permission from the copyright holder.   Recognizing that educators, scholars, and students may have special needs to use these materials for educational purposes, fair use tries to balance out the these needs with the rights of the copyright holder in such a way as to provide for some use as long as it falls within certain guidelines.   Fair use is not designed to be cut and dried; it is not a matter of copying less than 10% of a work, checking a certain number of boxes on a checklist, saying that since material is being used in the classroom it automatically falls under fair use, etc.  Instead, it asks the individual contemplating use of copyrighted materials to examine and weigh four factors.

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
2. The nature of the copyrighted work
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
4. The effect of the use upon the potential market for or value of the copyrighted work  

Have a question about copyright, fair use, and documentation?   Contact:

• DMU Compliance Officer Erika Linden at Erika.Linden@dmu.edu or (515) 271-1526
• Jill Edgerton at jill.edgerton@dmu.edu or at (515) 271-1645.

While determining whether a use fits under fair use guidelines is not a matter of simply  ticking off X number of boxes on a list, working and thinking through the checklist process can be helpful in determining whether you should use an item or not.  The DMU Fair Use Checklist, based on a checklist created by and made freely available by D. Buttler and K. Crews of the University of Louisville and IUPUI, helps you match the particulars of your situation to examples that would meet or oppose fair use.  

So,  you've weighed your situation against the four fair use factors, and realize that you'll need to get permission from the copyright holder.  How should you proceed?

1. Start early!   Permissions may take some time to arrange.
2. Identify the copyright holder or his/her agent.
3. Send the copyright holder a letter that includes information about who you are, exactly what material you hope to use, the circumstances around your use  and exactly what your intended use is (classroom, conference presentation, use in a tutorial or on a webpage, etc.).  The more specific that you can be, the better.
4. Keep your documentation organized!   Should your use be challenged down the road, this will be vital information.  Keep a file for each request with the fair use checklist, a copy of the letter and any accompanying materials that you may have sent the copyright owner, and a copy of any mail or email replies that you might receive.   Take careful notes during phone conversations and include those in your documentation, but be sure to get any agreements in writing.