Fair Use Is Messy

I always thought that Fair Use laws were very generous when it came to the education arena. 30 seconds of music here and there, videos clips, quotes from books, thumbnails from searches, all for the purpose of making education more engaging. But not all educational use is covered under fair use policy.

The purpose of Fair Use as defined in Wikipedia is “To justify the use as fair, one must demonstrate how it either advances knowledge or the progress of the arts through the addition of something new. A key consideration is the extent to which the use is interpreted as transformative, as opposed to merely derivative.”

I thought that surely copyright laws and fair use policies were of recent developments within the last couple of decades since the economic and technology boom and necessary in our lawsuit-happy society. It was surprising to find out that the first conception was in 1709 in the United Kingdom with the Statute of Anne. To this day, lawsuits examine fair use through the lens of the four factors determined in the 1841 case of Folsom v Marsh, 9 F.Cas. 342.

To be fair, we (as a society) have to place ourselves in the shoes of the artists/authors who should have rights to their intellectual property. They deserve acknowledgement in the form of monetary royalties or at the very least credit for their creative process. Unless the artist has specifically stated that the work is public domain, we should try our best to assume that everything has a default copyright and be respectful in our use, even for the benefit of educating students.

As educators teaching copyright and fair use, we should model how and when we encounter situations that fall in these categories. To better understand from an artist’s point of view, classes can Skype with an artist/author and ask questions about how and why “we” should heed copyrights/fair use policies. Very recently Amy Krouse Rosenthal visited our international school. We wanted to surprise her with a song using the words in her book, Plant a Kiss. Our librarian and the music teachers contacted Amy Krouse Rosenthal who gave her permission. Our kindergartners serenaded Amy in our community garden. It was a lovely way to welcome her to our school. (I have second thoughts about sharing the video of this moment. Is it covered under her copyright permission to broadcast this in a public forum like a blog?)

In the end, fair use rights may be applied when there is no profit involved or the use is not for commercial purposes. In a school setting, this is tricky when it comes to fundraising ideas, theatre/musical or celebrations such as yearbook/graduation that use some sort of media in this digital age. In any case, it is always good to check with the author(s) or see if the work is under contract or license, which would supersede the fair use rights of the property.

3 thoughts on “Fair Use Is Messy

  1. Hi Jaclynn, I know what you mean about fair use being messy – since learning about copyright (especially during this course) I feel like everything I’ve been doing in the past was illegal and I am quite unsure about how to proceed in the future! I actually think at some point there is going to have to be some kind of new rulings regarding fair use. I’m not sure what it is, but something has got to give at some point. I also have second thoughts now quite often about sharing things online and with my students!

    • Hi Heather, I definitely know what you mean. I even thought that posting the video of the students singing might be in violation of my students’ rights, like in Alison Chang’s case. Should I ask permission from all my students’ parents that appear in the video since they are minors? It’s a tricky and sticky situation to try and do the right thing by everyone’s account.

  2. I like this post Jaclynn as it confirms that many of us struggle with what is ok to post and what is not. I have had colleagues in the past that won’t post student work for fear of violating their privacy and other safety issues. I do believe we have to be concerned about safety, but to not post great work because we are fearful of the big bad unknown – is that being too guarded? I do believe we should have some communication with both students and parents about we can share online and what we can’t. Then we need to further discuss with students the copyright issue. As you said it’s messy!

    A funny aside… or not so funny. When I enrolled my daughter at the international school I teach at, I signed a form that requested permission to use her photo on the website and in their publications without prior permission. I could check that I was ok with it, or that they had to ask my permission. I checked that I wanted them to ask my permission, she was three at the time and just turned 4. I wanted to know what might be printed. The latest issue of our school magazine just came out, my daughter’s picture is in it, twice. No one asked my permission to use her image. So – even when we sign forms limiting the use – it may not be checked or followed.

    Even messier! :) But – we do have to keep wading thru the muck.

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