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 video, consider doing the following:
The examples below are intended to model the thought processes 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 Wang is teaching an online Introduction to Film Studies course. Her face-to-face version of the class meets Mondays, Wednesdays, and Fridays for 50 minutes, with three-hour film screening sessions on Tuesday evenings. Students in the class learn about formal analysis, genre studies, film history, and theory. Through class lectures and readings, watching films, and several short papers, students gain the basic critical tools necessary for understanding and analyzing the language of motion pictures. The films studied in the course are: Casablanca (1942, Michael Curtiz), Touch of Evil (1958, Orson Welles), Breathless (1960, Jean-Luc Godard), The Virgin Suicides (1999, Sofia Coppola), The Bicycle Thieves (1948, Vittorio De Sica), and Walk Hard (2007, Jake Kasdan).
The online course is being offered over the summer. Many students are working full time or have moved home, therefore they are not able to go to the university library to watch the films there. So that students can view the assigned movies, Professor Wang asks the library to upload their DVD copies of the films to the university's streaming server. The streamed films will be available to students through Canvas for the duration of the summer semester only. Only students registered for the course will be able to access the films, and students will not be able to download or copy the films. 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 Wang's use is transformative, since she is using films originally produced for entertainment purposes to educate students about film history and theory. The professor and the students are subjecting the films to critical commentary and detailed analysis in a noncommercial educational context.
2. Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?
These films are creative works, and they were used in their entirety, which would tend to weigh against fair use. However, given that the use is transformative and takes place for educational purposes, the use is more likely to be fair. Students are not normally expected to purchase copies of films as course materials; rather they rely on the copy acquired by the university library. In this way, Professor Wang's streaming of the films did not cause market harm to the copyright owners.
Fair use: Yes.
Note: The transformative and educational nature of Professor Wang's use of the films and the facts that access was limited to students enrolled in her class and that students could not copy or download the films support a fair use argument. This does not mean, however, that the copying of video content to university servers in order to stream it to students will not be challenged by rightsholders. In fact, the Association for Information Media recently sued the University of California Los Angeles for copyright infringement for doing exactly this. The case was dismissed on procedural grounds, so no decision was rendered on the legality of streaming.
In the 1984 case Sony Corp. v. Universal City Studios, Inc., the Supreme Court held that time shifting was fair use in connection to the noncommercial home recording of television shows for delayed viewing because it did not deprive the copyright owners of revenue.
An Issue Brief from the Library Copyright Alliance on the streaming of films for educational purposes suggests that "courts are likely to treat as fair use many instances of streaming video to students logged in to class sites." The brief's authors write, "Courts likely would treat educational uses of entertainment products, such as uploading a feature film to a course website so that students could stream it for purposes of analysis, as repurposing" [i.e. as transformative use]. The brief goes on to suggest that "educators could buttress their fair use claim by recontextualizing works on course websites through selection and arrangement and the addition of background readings, study questions, commentary, criticism, annotation, and student reactions."
Professor Soleway is teaching an online course on the depiction of divorce in popular culture. His course notes are posted online in Canvas along with background readings and other course content. For a segment on divorce in popular film, Professor Soleway digitizes short clips from each of three movies: Divorce American Style (1967, Bud Yorkin), Kramer vs. Kramer (1979, Robert Benton), and The Squid and the Whale (2005, Noah Baumbach). He uploads the clips to the university's streaming server and embeds them in his course notes in Canvas.
Professor Soleway's course notes set the context for each clip by prefacing it with an explanation of what he wants students to watch for. After each clip, he elaborates on what he thinks it illustrates about the popular representation of divorce. After viewing the clips, students are given a list of questions that require them to critically reflect on the content of the clips. Students post their responses in the discussion section of the course site. 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 Soleway's use is transformative, since he is using films originally produced for entertainment purposes to examine cultural representations of divorce. The fact that he surrounds each film clip with commentary that places the clip in the context of his broader argument and that students are required to critically analyze the clips' contents strengthens the transformative nature of his use, as does the fact that his use takes place in a noncommercial educational context.
2. Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?
These films are creative works, but limited portions of each were used, just enough to convey how the film treated the topic of divorce. Given that limited portions of each film were used, that Professor Soleway's use is transformative, and that the use took place in a noncommercial educational setting, the use is likely to be fair.
Fair use: Yes.
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.
