Workshop Recap: Fair Use

This recap of the Mina Rees Library’s Fair Use workshop is a little belated; Tomiko already reviewed the follow-up workshop on Creative Commons. However, I’ve been reflecting on it as I work on my final project, and I thought some of the takeaways might be helpful for others as they gather materials, now or in the future. The workshop was led by Jill Cirasella, an Associate Professor and Associate Librarian for Scholarly Communication; I’m happy to email any of you some follow-up resources she shared after.

The main thing that stuck with me is that Fair Use (like so much we deal with in the humanities!) is nebulous and open to interpretation. If you follow music industry news and controversy, you probably already know that the line between sampling or inspiration and copyright infringement is a thin one, and reasonable people (and their lawyers) can disagree on where exactly it is.

Professor Cirasella took us through the historical and legal basis for Fair Use in the United States, starting with the Constitution, which provides a foundation for the concept of copyright:

“The Congress shall have power… to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

United States Constitution, Article 1, Section 8

The reasoning behind this right — “to promote the progress of science and useful arts” — is key to understanding Fair Use and how it provides a small loophole * (not a legal term! Please research this for yourself!) to allow for use of copyrighted work while the copyright is still in effect. (Which, by the way, is a long time.)

Here’s how Fair Use is defined in U.S. law:

“[T]he fair use of a copyrighted work, including such use by reproduction in copies … for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) The nature of the copyrighted work;

(3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) The effect of the use upon the potential market for or value of the copyrighted work.

17 U.S. Code § 107, via Cornell Law’s Legal Information Institute

The four factors listed can help you determine whether something is Fair Use. (This page from Columbia University Libraries goes into more detail about these factors, including how the courts have ruled based on each.) The history of case law related to Fair Use can also help you determine whether a potential use qualifies — although it’s complicated, the good news is that the rulings in these cases have generally expanded the scope of Fair Use has over time. As we learned in the workshop, Fair Use grew to cover home recording of televised events (Sony v. Universal, 1984), parody (Campbell v. Acuff-Rose/2 Live Crew, 1994), and transformative use, as in the case of Google Books, which has digitized books in order to make them searchable without sharing the full text (Authors Guild v. Google, 2015).

The takeaway? Using material for teaching is usually Fair Use, especially if you’re mindful about how much of a copyrighted work you use. For creative projects, it often depends on what you’re doing with it — how transformative it is, how much you’re using, and whether your use makes the original worth less. For example, it would be hard to argue that a parody, like Weird Al’s “Amish Paradise,” makes people less likely to listen to or pay for Coolio’s “Gangsta’s Paradise” — which in turn, heavily samples (with permission) Stevie Wonder’s “Pastime Paradise,” which didn’t necessarily lose value either.

Coolio, LV, and Stevie Wonder performing together at the 1995 Billboard Music Awards – an example of how great things happen when artists are able to sample and build off of each others’ work.

I’m no expert on Fair Use, but the library workshop has given me a better sense of what it covers and why, as well as some tools to help determine whether a potential use is or isn’t fair. I’ll leave you with one I’ve found particularly helpful: this Fair Use checklist from Columbia University Libraries.

Finally, if you didn’t make it to a library workshop this semester, I’d highly recommend it. The full calendar is here.