1. Did the use "transform" the material taken from the copyrighted work by using it for a broadly beneficial purpose different from that of the original, or did it just repeat the work for the same intent and value as the original?
2. Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?
— Association of Research Libraries, Code of Best Practices in Fair Use for Academic and Research Libraries (2012)
To best position yourself to assert a fair use argument when using images, consider doing the following:
The examples below are intended to model the process 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. This guide is not intended as legal advice.
Professor Jones is teaching a MOOC on the relationship between humans and the environment in which anyone is free to enroll. One of the topics she is covering is the 2010 Russian wildfires that broke out due to record temperatures and drought in the region. The smoke from the fires produced smog that affected Moscow and other urban areas. Professor Jones found a newspaper article online about the fires, with an image from the Associated Press of tourists in Red Square wearing face masks to protect themselves from the smog. She wants to use this image in her online lecture notes to show just how bad the smog in Moscow was. Is this fair use?
Analysis
1. Did the use "transform" the material taken from the copyrighted work by using it for a broadly beneficial purpose different from that of the original, or did it just repeat the work for the same intent and value as the original?
No, Professor Jones's use is not transformative, since she is using the image for the same reason as its original purpose—to show the impact of the fires.
2. Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?
Given that the image is a creative work, that it was used in its entirety, and that the use is not transformative, the material taken is not appropriate in kind and amount.
Fair use: No.
Possible alternative: Professor Jones could substitute an image with an open license that would illustrate the effect on air quality in Moscow of the wildfires. To search for an open-licensed image, she could use Wikimedia Commons, Flickr Creative Commons, or an advanced Google Image Search.
Professor Lee is teaching an online photography course. His colleague Professor Jones had showed him an image from the Associated Press of tourists in Red Square wearing face masks to protect themselves from the smog during the the 2010 Russian wildfires. Professor Lee felt that this photograph was a particularly good example of image composition and depth of field. He decided to use the photo in his online lecture notes for the class, which he makes available on his personal website without access restrictions. In the text surrounding the image, Professor Lee clearly stated his purpose in displaying the image, explaining in detail how the image exemplifies the photographic concepts he is discussing. Is this fair use?
Analysis
1. Did the use "transform" the material taken from the copyrighted work by using it for a broadly beneficial purpose different from that of the original, or did it just repeat the work for the same intent and value as the original?
Yes, Professor Lee's use is transformative. The original purpose of the photo was to illustrate how bad the air quality was in Moscow during the wildfires. Professor Lee's purpose for using the photo is to illustrate concepts and techniques in photography.
2. Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?
Because Professor Lee's use is transformative, and because it is necessary for him to use the entire image in order to illustrate the photographic techniques he is presenting, the material taken is appropriate in kind and amount, even though the image is a creative work.
Fair use: Yes.
Note: The fact that Professor Lee's lecture notes are freely available on his website does not in and of itself undermine his fair use argument. However, his use is more likely to be challenged by the rightsholder than if he had used a course management system like Moodle to limit access to only the students in his class. Access restrictions are not a requirement of fair use, but they demonstrate a good faith intention to limit the use of the image to educational purposes.
Professor Banerjee is teaching a face-to-face management course that has an online component. His lectures are captured on video and then posted in Moodle for students to review. The videos also capture Professor Banerjee's PowerPoint slides. At the end of a lecture on management styles, he included a Dilbert cartoon strip as the final slide. The strip depicts Dilbert wearing Mickey Mouse ears for Halloween and stating that he is dressed up as "someone's management style." Professor Banerjee intended the cartoon to be a bit of comic relief related to the topic. Is this fair use?
Analysis
1. Did the use "transform" the material taken from the copyrighted work by using it for a broadly beneficial purpose different from that of the original, or did it just repeat the work for the same intent and value as the original?
No, Professor Banerjee's use is not transformative. The original purpose of the comic strip was to amuse the reader, and Professor Banerjee is essentially using the strip for the same purpose—to amuse his students.
2. Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?
Given that the comic strip is a creative work and that the use is not transformative, the material taken is not appropriate in kind and amount.
Fair use: No.
Note: If Professor Banerjee had displayed the Dilbert strip in the context of a lecture on the depiction of management in contemporary popular culture, explaining why he was using the strip and specifically what the strip illustrated, this would likely be a fair use.
This guide is adapted from the LibGuide "Fair Use and Copyright for Online Education" by Andrée Rathemacher, Julia Lovett, and Angel Ferria of the University of Rhode Island Libraries, available under a Creative Commons Attribution license.
