There are many situations, particularly in a classroom environment, where you might want to use copyright-protected material but you can’t obtain permission from the copyright holder. A common example would be a teacher who wants to read a poem from a book or show an educational cartoon to her class. Thankfully, copyright law addresses these particular types of uses directly, in 17 U.S.C. § 110. Section 110 provides important exemptions for certain performances and displays of copyrighted works in the classroom (and certain limited online learning situations) that would otherwise be considered infringement.

The most important thing to understand about these exemptions is that if your use of content meets one of these exemptions, your use is unlikely to be infringing. In other words, this means that you would not need permission of the copyright holder, and you would not need to rely on “fair use” to be able to use the content.

Aside from certain classroom and educational uses, copyright law also allows uses of third-party materials in other situations as well through 17 U.S.C. § 110, such as a restaurant playing music or the television for its customers, religious uses of literary or musical works, or uses at certain fairs, which we will not discuss here. We have broken down our discussion of educational exemptions into individual sections including:

• In-person classroom performance and display
• Distance learning or transmitted educational activities
• The Copyright Advisory Network's Tool

In-person Classroom Performance and Display

This exemption allows teachers or students to perform or display copyrighted works in the classroom during face-to-face teaching activities. This means that a teacher could show pictures, read stories or articles, and show video clips to their students during class to enhance their educational experience. For physical classroom use, it doesn’t matter what kind of work it is (like if it’s dramatic, nondramatic, or musical); any type of work can be used.

But, there are three major limitations to this exemption:

(1) The performance or display must take place during the face-to-face teaching activities of a non-profit educational institution, in a classroom or similar place devoted to teaching (“non-profit educational institution" typically would cover public schools and universities, and incorporated 501(c)3 nonprofit schools and universities, but not private for-profit schools and universities);

(2) The exemption doesn’t cover any copies you make. The exemption only covers performance and display, so any copies you make will need to be allowed by fair use or another exception under the law; and

(3) You must use a lawful copy of the motion picture or audiovisual work you plan to use (either licensed or allowed under fair use). If you are performing a motion picture or audiovisual work, or even displaying single frames of those works, using an unlawful copy of that work will be considered copyright infringement if you knew or had some reason to believe that the copy was unlawful. In other words, if you have even the smallest suspicion that the copy of the film or clip you want to show to your students might be bootlegged or otherwise obtained, made, or copied without the permission of the copyright owner, this exemption will not apply to your use, and using it could mean liability for copyright infringement.

Remember that the exception only covers performance and display of works in the classroom, not any copies or adaptations. So, if you make a copy of a photo for classroom use, that copy has to be separately allowed either under fair use or even by permission of the copyright holder.

The “classroom” means a place used for instructional activities and where the audience is limited to members of the particular class. For example, a performance in the auditorium during a school wide assembly would not be considered exempted because there would presumably be students present from different classes. So, if the first graders are watching the same performance as the fourth graders and the sixth graders, the performance would fall outside the scope of the exemption, and would be probably be considered infringing.

But keep in mind that you could include studios, gymnasiums, auditoriums, libraries, and other similar places if they are used like a classroom for instructional activities. Compare this example to the earlier school-wide assembly: once a month the first-grade class goes to the library for their literature class. The students take turns reading from a short book aloud, and the teacher teaches an accompanying lesson about the themes of that particular book during that time in the library. Since this instructor is using the performance of the book as part of her lessons, and she is using the library as a place to teach her students, this particular use of the short book is likely to be exempted from infringement.

Distance Learning or Transmitted Educational Activities

This exemption is similar to the classroom use exemption, but specifically covers distance learning, or any classes that are transmitted (digitally or otherwise) outside of a physical classroom. It is intended to be used in situations very analogous to the in-person classroom setting, and is in fact narrower than the in-person exemption discussed above in a number of ways. If you want to use a work in an online class, read this section carefully and make sure you comply with each aspect of the distance learning exemption.

This exemption allows for the transmission of a performance or display of a non-dramatic work (which means works not found in an opera, musical, or other theater work) literary work, musical work, or “reasonable or limited portions” of other works. It also allows for the transmission of a display of works as long as you use an amount comparable to what would typically be shown in the live classroom session.

The following requirements must be met in order for the use to be considered non-infringing:

1. Similar to the previous section, the work must be used by the instructor as an integral part of the class session as a part of the curriculum offered by a government body or an accredited non-profit educational institution. Typically, this would cover public schools and universities, and incorporated 501(c)3 nonprofit schools and universities, but not private for-profit schools and universities. Note the additional requirement that the institution be accredited. Accredited is defined as follows:

• For post-secondary education – must be accredited by a regional or national accrediting agency recognized by the Council on Higher Education Accreditation or the United States Department of Education; and
• For elementary or secondary education – must be accredited by the applicable state certification or licensing procedures.

(2) The performance or display must be directly related and “of material assistance” to the teaching content of the transmission. This means that the performance or display must be important and related to the particular lesson you are teaching.

(3) The transmission of the class must only be made for and shared with the students officially enrolled in the class.

(4) The transmitting body (the school or other educational institution) must have policies on and work to promote compliance with copyright law.

(5) If the information is transmitted digitally (and most things are these days because they involve transmission through the internet), there is an additional requirement that the institution apply technological measures that reasonably prevent someone from retaining an accessible form of the copyrighted work for longer than the class session and prevent students or other members of the audience from sharing it with those not in the course.

Remember that this exemption only covers performance and display of works, not any copies or adaptations. So, if you make a copy of a photo that is then displayed, that initial copy has to be separately allowed either under fair use or even by permission of the copyright holder.

The material being used cannot be produced or marketed specifically as part of curriculum material and not unlike the above exemption, if you use a copy of a motion picture, using an unlawful copy of that film will be considered copyright infringement if you knew or had some reason to believe that the copy was unlawful.

The Copyright Advisory Network has created a tool to help understand these first two exemptions, which can be found here.

It can be difficult to navigate which uses of copyrighted content is allowed, and which are not. Don’t forget to check out our interactive educational tool, the Fair Use App, which includes a section on the classroom uses and other exemptions.

If you have questions about the exemptions of certain performances and displays from copyright infringement liability, please contact New Media Rights.

Copyright Advisory Network Tool

It's Fair Use Week 2019 this week, but every week is Fair Use Week for New Media Rights, because every day we fight for artists and innovators against legal bullies who don’t respect fair use and work to empower creators by providing them with important information on the law.

Fair use is the vehicle millions of individuals use to exercise their freedom of expression every day. That's why this week, we'll be highlighting why fair use is important to creators and what New Media Rights is doing and has done to support it.

WHAT IS FAIR USE?

Fair use allows creators, in limited circumstances, to use other people's copyrighted materials without permission from the copyright owners.

So why is this so important?

Free speech, creativity, and our economy all require strong limits on copyright holders. Otherwise political, educational, and cultural discourse can be controlled by copyright owners who can limit the use of their content by only those with pockets deep enough to pay for a license (legal permission).

Copyright law was written into the U.S. Constitution specifically "to promote the progress of science and useful arts..."

If you read this closely, you’ll notice that copyright law wasn’t created solely to ensure the owners of creative works make money. Instead, the Founding Fathers understood that the fundamental goal of copyright law is the public benefit from access to creative work. They wanted would-be creators to have an incentive to create, but they also knew that access to works was critical to provide societal benefits of artistic and scientific expression. So, they included a way to balance those two things in the Constitution: bestowing Congress with the power to grant creators the exclusive right to control their creation, with exceptions, for a limited period of time. And when that period expired, the public could legally copy or use that work for any purpose. Reflecting on copyright law’s benevolent purpose, the Supreme Court summarized it in one great little phrase: “[Copyright law exists to] stimulate artistic creativity for the general public good.” Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975).

Although modern justifications for copyright may differ, U.S. copyright laws are meant for the public benefit as much as private benefit, and fair use is the safety valve that allows science and culture to progress while still allowing creators to make money off of and maintain control over their art.

Fair use allows many industries, including movies, music, and the Internet, to flourish. For example, fair use is the reason that search engines like Google and DuckDuckGo can exist. Looking at some examples of how many of us rely on fair use in our daily lives shows what an indispensable part of America’s economy and culture fair use is. From pop culture criticism, to video game and film reviews, political advertisements, news, documentaries, memes and more, fair use is there every day allowing us to have cultural and political discussions.

WHAT DOES FAIR USE LOOK LIKE?

It's can be difficult to understand how critical fair use is to protecting free speech about social, political, and cultural issues without concrete examples. Here are some real life examples and discussions about fair use:

• 2 Live Crew's “Pretty Woman” – This song used some lyrics from the Roy Orbison song “Pretty Woman” and was found to be a fair use because they successfully argued that their use was transformative in the way that it juxtaposed race and socio-economic status.
• Andy Warhol’s Campbell Soup Cans – There have been various discussions about the paintings being transformative or a commentary or – both. Warhol did not have to worry about coming up with a fair use defense though because Campbell’s was a fan!
• Sorry for Partying T-shirt by Sconnie Nation – An apparel company used a former Wisconsin mayor’s image to comment on his efforts to shut down Madison’s annual “Mifflin Street Block Party.” The photo is a great example of fair use because of the image’s highly stylized transformation.
• Richard Prince Canal Zone – Making a collage with photographs incorporated into paintings was held to be transformative enough to constitute a fair use.

Want more fair use examples? Check out our #FairUseWeek posts on Instagram, Twitter and Facebook.

WHY IS FAIR USE WORTH PROTECTING?

Copyright gives copyright holders control over who can and can't reuse their work. This covers a lot of reuses, and now lasts for life plus 70 years after the author’s death (note it was 14 years at the founding of the United States). Unfortunately, some copyright holders want to overreach and control any use of their work, including who can discuss and criticize their work.

To attack artists relying on fair use, some copyright holders threaten lawsuits with excessive "statutory damages" and litigation to intimidate artists who make legitimate fair uses of a work. Artists faced with the choice between being sued or taking down their work will simply take down their work because they can't afford $300+/hour for a lawyer to defend them. This doesn't stop at just artists. Journalists, tech startups, documentarians all have their self-expression chilled or technological innovation stifled because it's not worth the risk of millions or billions of dollars in damages, even when the copyright holder's threat is bogus or "gray area" at best.

We've seen how easy it is to bully filmmakers, artists, and journalists attempting to rely on fair use...

We helped remix artist Jonathan McIntosh get his amazing 'Buffy Versus Edward' remix back up after it was repeatedly taken down. We also helped the Media Literacy Project stand up to a bogus copyright claim from a third party regarding their criticisms of some health related advertisements. We even helped the Lansdowne Library Teen Advisory Board get a group of middle school kids' Beat It parody video unmuted after it was disabled for the second time through YouTube’s Content ID system.  From YouTube, to Amazon, Etsy, Google Play, Apple Store, and more, we've seen first-hand how copyright owners overreach and abuse the system.

Threats of copyright takedown notices should not be used as a weapon against art or criticism copyright owners don't like. New Media Rights has been a strong advocate against "content bullying" (copyright holders using copyright to silence other's speech) You can read more about our work against content bullies here.

A strong, protected system of fair use and lawyers willing to stand up to bullies who use these intimidation tactics are keys to thriving cultural and technological innovation.

Efforts to curb copyright infringement should be encouraged but not at the expense of legitimate uses. Supporting a balanced copyright system means taking efforts to reduce infringement without preventing legitimate uses, stifling new innovations, or bringing unnecessary harms to consumers and the public.

WHAT IS NEW MEDIA RIGHTS DOING TO SUPPORT FAIR USE?

Here are stories that show how important defending fair use is to protecting freedom of speech. Watch these films and videos from our clients to see films that rely on fair use in action.

Gun Violence - Brave New Films Making A Killing - Covers individual stories and data evidence to explain 5 important aspects of gun violence, including mass shootings, domestic violence, suicide, gun trafficking, and existing safety solutions.

Public Health - Painted Nails Movie - The negative health impact on workers of chemicals used in the nail salon industry, and the efforts to change the law to protect California nail industry workers.

Gender Discrimination & Inequality - GTFO - The story of gender discrimination in the video gaming community.

Gender Inequality – My Love Affair With the Brain – The life and science of Dr. Marian Diamond, one of the founders of modern neuroscience.

Gender Communities – San Diego’s Gay Bar History – Traces the development of the gay bar as a community institution in San Diego

Racial Discrimination - Valentino's Ghost: Why We Hate Arabs - A sweeping study of 100 years of popular culture representations of Muslims.

Racial Stereotypes and Representation – Bad Rap – The story of four Asian American rappers as they struggle to find their place within the mainstream music industry that doesn’t know how to categorize them except through stereotypes.

Environmental Degradation - Company Town Film - The environmental and health impacts on one Arkansas town of a Georgia Pacific paper mill. 

Environmental Degradation – Reefs at Risk – Explores the harmful effects some sunscreen chemicals have on coral reefs, marine life, and people.

STRENGTHENING FAIR USE

Since 2009, we've advocated at the Copyright Office for many exemptions to "Anti-Circumvention laws" so that creators can make more fair uses of copyrighted works. Last year, we combined efforts with the Electronic Frontier Foundation and the Organization for Transformative Works to request an improved exemption for the reuse of video clips that better respects fair use. Although the Copyright Office didn’t provide the exemption we were hoping for this time, we continue to work towards expanding and maintaining anti-circumvention exemptions so that filmmakers, educators, libraries, remix artists and others can continue to rely on the critical protections of fair use.

RESOURCES AND TOOLS

A Citizen’s Legal Guide to Fair Use in Copyright Law

Looking for more information on fair use? Check out our extensive citizen’s guide to fair use here.

The Fair Use App

New Media Rights built our Fair Use App to help video creators who ask the question "Can I reuse this?" If you're a creator using other people work in your work, learn more about when you can reuse content here

Our Book

We also have a book! Available in print and audio-book, Don’t Panic J A Legal Guide (in plain English) for Small Businesses and Creative Professionals has an entire chapter on fair use, licensing, and open licensing.

Credit: Some of this post was adapted from Fair Use Week and reCreate licensed UNDER CC-BY