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
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
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
Leans towards less fair
Leans towards more fair
Chosen for illustrative or
aesthetic purposes; commercial
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 fair
Leans 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
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
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
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
Grateful Dead poster case
Bill Graham Archives v. Dorling Kindersley
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
[email protected]
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
Wow, you are committed. 5 more
minutes of fair use.
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
Citation style doesn’t matter so much, use whatever
your prof. wants (for help with major styles, see
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.
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.
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.
Public domain via Wikimedia Commons. Originally from National Archives and Records Administration.
Thompson, Michael (freestylee). “Massacre in Tivoli Gardens.”Flickr. Web. 31 May 2013.
Creative Commons license via Flickr. CC-BY-NC 2.0.
For more examples, see http://sites.tufts.edu/copyrightliteracy/resources/
Questions? Ask a Librarian
[email protected]

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