Fair Use

*Please note that the information on this page or provided by UTA Libraries’ staff should not be considered legal advice or guidance. We provide information only.*

Quick Guide

Type

Brief definition

Examples/actions

Intellectual Property

Intangible creations of human intellect and creativity

Literary and art works, inventions, designs

Copyright

Exclusive rights to use your own or someone else’s intellectual property

Reproducing, distributing, making derivatives of, or performing a work

Creative Commons

License schema that enables author rights retention and distribution of a work to users based on author choice

CC-BY (Attribution) license that requires users to attribute a creator when they use a work

Public Domain

Work not protected by copyright and which may be freely used by everyone

US Government docs, the works published before 1928 in the US 

Fair Use

US protection allowing limited and transformative use of copyrighted works without permission for nonprofit educational purposes

Scanning a chapter or two of a copyrighted research book to share with students in a course as a digital pdf

There is a misconception among instructors that they can rely on Fair Use as a blanket protection to use any materials in their courses. That is not true. If instructors are seeking teaching resources, they should first seek materials that are in the public domain or openly licensed. If an instructor feels strongly about using a copyrighted resources for their teaching, they should do the due diligence to receive permission form the copyright holder.

Finding Teaching Resources before resorting to Fair Use

  • Publication date is 75 years prior to the year of use or older
  • Publication date is before 1963 without a copyright notice
  • Publication date is before 1963 with a copyright notice on work and not renewed with the U.S. Copyright Office.
    • Please note: The lack of online documentation with the U.S. Copyright Office does not mean the copyright was not renewed. Contacting the publisher is best practice.
  • Produced by the federal government (and not classified)
  • Produced by *some* state governments
  • Cooking recipes
  • Newtonian physics…
  • Items publicly available through Project Gutenberg
  • Items labeled public domain in Wikimedia Commons
  • Items publicly available through the Internet Archive

  • Open Educational Resources (OER)
  • Creative Commons.org search
  • Flickr Advanced Search: Advanced search in Flickr gives you the option to ONLY search within Creative Commons-licensed content.
  • ccMixter: a community music site featuring remixes licensed under Creative Commons where you can listen to, sample, mash-up, or interact with music in whatever way you want.
  • Jamendo: a community of free, legal and unlimited music published under Creative Commons licenses.

  • Check if the Libraries already pay for access to it!
    • Request a consultation with the Learning Resources Librarian about our course reserves services, for both physical resources like books we already have in our stacks, e-resources that we already have access to through our subscription databases, Interlibrary Loan options, or digitization options.

Check its status and the options to seek permission for use through the Copyright Clearance Center. FYI: Some permissions require payment, depending on the resources.

What is Fair Use and why is it not a blanket invitation to use whatever you want?

The doctrine or exemption of “fair use"  in U.S. Copyright law identifies the factors by which the use of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. These uses are powerful, but not unrestricted. *Please note that it is not that case at all use for educational purposes will be considered fair use. 

The guidelines below will help explain the opportunities and restrictions of fair use. Each of the following four factors must be weighed in order to determine fair use.

  • The balance tips toward fair use when use is educational and non-profit, not commercial.

  • The balance tips in favor of fair use for published, factual, nonfiction material; the reverse is true for unpublished or highly creative work (music, novels).

  • The balance tips in favor of fair use when a portion is small, not central to the work, and tailored to the exact educational purpose intended. Guidelines such as less than 10% of the work are good to consider. Proper/clear attribution and citation of the work is also very important!

  • The balance tips in favor of fair use when a legal copy is owned by the user and use doesn't significantly impair sales.

Fair use court cases have set precedents in several arenas. An infographic by fairuseweek.org offers information about eight high profile fair use cases, all of which were found in favor of the user.

To ensure you know how fair use may apply to your activities, it is good practice to use a checklist:

Additional Fair Use Resources:

FAQs about showing videos for teaching and extracurricular activities

No, you do not need public performance rights to show a copyrighted video in a class. Faculty may show all or part of a video (i.e., documentary, motion picture) in a face-to-face class setting (not in an online/distance learning setting – see the TEACH Act Checklist provided by UT Austin Libraries), but there are some boundaries. The showing must be:

  • a "regular part of systematic instructional activities"
  • in a nonprofit educational institution and on campus grounds
  • in a classroom or "similar place devoted to instruction"
  • the copy used must be lawfully made/obtained (such as rental store DVDs or those held in the Library collections)
  • not open to the public

This is necessary when a video is shown to an audience outside a class and not related to a teaching activity. Campus clubs and social events that wish to show videos must have permission or public performance rights. Any event that is open to the public is a public performance and needs public performance rights.

Student organizations can work with the Department of Student Activities and Organizations to obtain public performance rights.  For faculty, the library can assist you and guide you to permissions agencies. Contact your liaison librarians.

Not automatically for every video, although some video suppliers include public performance rights with the basic purchase. In some cases, you have to purchase the rights on a situational basis.

Yes, and the cost is often higher than the typical video. Some of the Library's streaming databases come with public performance rights. Check with your librarian. Who is my librarian?

Right now, you will have to check with library staff. Contact your liaison librarian.

Some companies offer educational videos both on DVD and with streaming from the company's server. It is possible for some of these videos to be cataloged and proxied in the Libraries' catalog to be viewed by faculty, students and staff anytime. Links to these databases can be added to your course management site. Ask your librarian to look into this if you are interested, or submit a course reserves request. 

The Library has acquired subscriptions to a number of streaming media services such as Ethnographic Video Online , Theatre in Video and Naxos Music Library. These services may also be used in online teaching.

Instructors may wish to have students watch videos outside of class. While setting this up through your Learning management system may seem like the solution, showing an entire popular, general release movie this way is a stretch of Fair Use. Under the TEACH Act, this practice involves licensing. Consider having your students get their own accounts through services like Netflix or Amazon to view movies.

Yes, using YouTube to demonstrate pedagogical points is fine, however, do not use YouTube videos that contain infringing content just as you would not use any other type of infringing content. YouTube is particularly rife with such material despite YouTube's best efforts. The best way to handle a YouTube video is to link to it. Using YouTube's embedded code for linking is ok also; it's just code and YouTube makes it available for users to embed.

Most videos today are protected by content scrambling systems (CSS), technological protection measures (TPMs) or digital rights management (DRM), and it is a violation of the law to circumvent these protections to copy material from a video. Instructors can always advance video to the portion they wish to comment on, however, the 2012 DMCA exemptions permit faculty and students requiring close analysis of film and media excerpts to circumvent protection measures to make short portions available for viewing. There is no definition of "short portions." See the U.S. Copyright Office website for the 2012 "Rulemaking on Exemptions from Prohibition of Technological Measures that Control Access to Copyrighted Works."

The exemption applies only to motion pictures on DVD or from online distribution services and the circumvention is allowed only when “necessary because reasonably available alternatives, such as non-circumventing methods or using screen capture software …are not able to produce the level of high-quality content required to achieve the desired criticism or comment.” If very high-quality copy is not required for the criticism or comment, the law permits the use of screen capture software. Faculty might try products like Camtasia, Jing, and Screencast-o-matic.