Fair Use

2010-12-28 05:46:52 by admin

The cornerstone of the Copyright Act is the concept of Fair Use, a practice that is common on college and university campuses, particularly in their libraries. Under the act, copyright attaches as soon as the original works of authors are placed into tangible media. Neither registering works with the U.S. Copyright Office nor placing copyright notices is required in order to create copyright protection for original works. Even so, placing copyright notices on works is beneficial, because notice to the public is necessary in most cases in order to claim statutory damages and Attorney Fees for copyright infringements.

Determinations as to whether the copying or reproduction of the original works of others is a Copyright Act violation begins with the act’s broad exemption that “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research is not an infringement of copyright” (Copyright Act, § 107). While the act allows for the use of copyright protected material for these purposes, these functions are still subject to the act’s four Fair Use factors:

the purpose and character of the use, including whether it is of a commercial nature or is for nonprofit educational purposes;

the nature of the copyrighted work;

the amount and substantiality of the portion used; and

the effect of the use upon the potential market for or value of the copyrighted work. (Copyright Act, § 102)

Considerable litigation, frequently involving publishing houses, has resulted in the sharpening of the definition of these four factors for the purpose of calculating the appropriate balancing of the factors where some, but not all, have been violated.

The Copyright Act permits instructors and students at nonprofit educational institutions to perform and display copyrighted material in faceto- face teaching activities. Excluded from this exemption are audiovisual works that are not “lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made” (Copyright Act, § 110(1)). The definition of face-to-face instruction has been extended to include e-mail courses and classes transmitted by means of interactive digital networks by instructors at “accredited nonprofit educational institutions” (Copyright Act, § 110(2) (A)). Accreditation is defined for postsecondary institutions as certification provided by regional or national accreditation organizations approved by the Council of Higher Education Accreditation or the U.S. Department of Education.

The e-course exemption allows instructors both to perform and display, by means of digital technology, entire nondramatic literary and musical works as reasonable, and limited portions of any type of audiovisual work. This expanded range of educational use of materials is inapplicable to material designed for the distance-learning market or works not lawfully made or acquired; materials not directly related to teaching content and limited to reception for students in classes for which the transmission is being made; materials that are not analogous to those of a typical classroom; transmissions that lack safeguards to prevent student retention and redistribution of transmitted material; or the making of digital copies that are used for other than authorized transmissions. While the Copyright Act permits the making of digital works and digitizing them to portions of analog works, the conversions of analog or print works into digital formats is impermissible unless no digital version of the analog version is available or the “digital version of the work that is available to the institution is subject to technological protection measures that prevent its use for “lawful transmission under section 110(2)” (Copyright Act, § 112 (f)(2)).

Whether educational institutions are entitled to exemptions under the copyright act has been subject to fairly continuous congressional action over the years regarding music and other electronic programming. In evaluating Fair Use, the act addresses not only whether educational institutions impose charges for seeing or hearing copyrighted electronic reproduction but whether audiences include only students or can be expanded to cover members of the general public.

The classic Fair Use and copyright infringement case is Marcus v. Rowley (1983), wherein a high school teacher (Marcus) who developed a 35-page booklet, “Cake Decorating Made Easy,” found herself in the awkward position of being charged with plagiarism by her own students after another teacher (Rowley) had copied portions of Marcus’s booklet without permission or attribution and distributed them to students. A student who had been given the booklet while enrolled in one of the courses taught by the copyright infringing teacher (Rowley) refused to buy the booklet from Marcus when the student enrolled in one of Marcus’s courses, believing that Marcus had impermissibly copied Rowley’s work. Worth noting is that plaintiff, Eloise Marcus, had placed in each booklet the copyright symbol © followed by “1973 Eloise Marcus.” In the plaintiff’s subsequent suit under the Copyright Act resulting from the defendant’s unauthorized copying, the Ninth Circuit held that a copyright violation occurred and remanded for damages. Regarding the four Fair Use factors, the court asserted that the defendant violated the first element, because her use had been “for the same intrinsic purpose for which the copyright owner intended” (Marcus, p. 1175). The court added that the defendant violated the third factor, because it was inconceivable that “the copying of all, or substantially all, of a copyrighted [item] can be held to be a Fair Use” (Marcus, p. 1176).

Defining a Copyrightable Interest

The basic aspect of Fair Use is that it protects only against unlawful copying and extends only to the copyrightable portions of the author’s output (Nazer v. Stein, 1954). The Copyright Act protects only the medium of expression and protection but does not extend to “any idea, procedure, process, method of operation, concept, principle, or discovery” (Copyright Act, § 102(b)). In addition, copyright infringement applies only to substantial similarity in copying (Twentieth Century–Fox v. MCA, 1983). Thus, the threshold question in considering whether a defendant has exceeded Fair Use and, as a result, violated the Copyright Act, is always whether that which has been copied was copyrightable.

In Clark v. Crues (2008), the Federal Circuit court held that a teacher who developed a hall pass system did not have a copyrightable interest in that system for purposes of an infringement action against the school’s development of a similar system, because he had only a “business idea” that is excluded from Copyright Act protection. In essence, the Federal Circuit court did not have to reach the question of Fair Use, because it was of the opinion that the teacher’s idea did not display the originality to be copyrightable. However, the court went even further to declare that even if school officials intentionally copied the teacher’s ideas, he still would have lacked a claim, because the two hall pass systems displayed a “limited use of similar functional language” that cannot support a copyright infringement action (Clark, p. 294).


An especially contentious issue in education is the use of photocopied materials for classes. Although Section 107 of the Copyright Act indicates that multiple photocopying for classroom distribution is Fair Use, such photocopying has been clarified by a separate agreement negotiated by groups representing authors, publishers, and educators (Guidelines for Classroom Copying in Not-For- Profit Educational Institutions, Copyright Act, § 107). Unfortunately, the agreement’s guidelines for multiple classroom copies based on the criteria of brevity, spontaneity, and cumulative effect are far from clear. Guidelines negotiated separately between music educators and music publishers regarding the copying of music (Guidelines for Educational Uses of Music, Copyright Act, § 107) are much more narrowly drawn and much more readily understandable.

Section 108 of the Copyright Act limits library photocopying to one copy of items so that they can be used for “private study, scholarship, or research” (Copyright Act, § 108(d)(1)). In addition, libraries are required to have, at locations where copies are made, “a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation” (Copyright Act, § 108(e)(2)). In Basic Books, Inc. v. Kinko’s Graphics Corporation (1991) a federal trial court in New York awarded a book publishing company statutory damages, injunctive relief, Attorney Fees, and costs in a dispute over copying. The court recognized that when employees of a Kinko’s located adjacent to a higher education campus made copies of a book without permission, they were not engaged in Fair Use. According to the court, “The copying was just that—copying—and did not ‘transform’ the works in suit, that is, interpret them or add any value to the material copied, as would a biographer’s or critic’s use of a copyrighted quotation or excerpt” (Basic Books, p. 1530).

Employment Relationships

Fair Use and copyright ownership can become intertwined issues involving employment relationships. Works that are created as part of employment relationships, especially at colleges and universities, are considered “works for hire.” Moreover, under the Copyright Act, “The employer or other person for whom the work was prepared is considered the author . . . unless the parties have expressly agreed otherwise in a written instrument signed by them, [the employer] owns all of the rights comprised in the copyright” (Copyright Act, § 201(b)). In Pavlica v. Behr (2005), a federal trial court in New York thought that a triable question of fact existed as to whether a high school teacher owned the copyright to a manual he developed to teach a new course to his students; he distributed the manual to other teachers as part of a university professor’s National Science Foundation research project. When the teacher’s involvement with the project was terminated, he claimed copyright ownership of the manual. In ordering the case to trial, the court was unwilling to grant motions for summary judgment in favor of the defendant professor and the university on their theory that the teacher lacked copyright interest in a manual. The court thus rejected the defendants’ argument that the manual was a work for hire based on his employment relationship at the high school.


The civil remedies for copyright infringement are daunting and can involve injunctive relief and damages. Copyright owners have the option of proving actual damages or using the statutory damages provided in the act. If copyright owners elect the former, actual damages may include lost profits and lost royalties. In Applied Innovations v. Regents of the University of Minnesota (1989), the university and its licensee recovered $226,598 in lost profits for the licensee and $162,161 in lost royalties for the university as copyright owner.

In an important distinction, the Copyright Act makes it clear that the range of statutory damages depends on the willfulness of the infringement violation. Damages for infringements that are not willful range from a minimum of $750 to a maximum of $30,000 for each violation (Copyright Act, § 504(c)(1)). Awards for willful violations can be as high as $150,000 for each violation (Copyright Act, § 504(c)(2)). In cases of copyright infringements where the “infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright” (Copyright Act, § 504(c)(2)), courts have the discretion to reduce awards of statutory damages to sums not less than $200 for each violation. Furthermore, if agents or employees of institutions of higher learning who were acting in the scope of their employment, and believed or had reasonable grounds for believing that their use of copyrighted work was Fair Use, then courts have the authority to remit statutory damages.

Ralph D. Mawdsley

See also Digital Millennium Copyright Act

Further Readings

  • Abramson, E. M. (1988). How much copying under copyright? Contradictions, paradoxes, inconsistencies. Temple Law Review, 61, 153–196.

Legal Citations

  • Applied Innovations v. Regents of the University of Minnesota, 876 F.2d 626 (8th Cir. 1989).
  • Basic Books v. Kinko’s Graphics Corporation, 758 F. Supp. 1522 (S.D.N.Y. 1991).
  • Clark v. Crues, 260 Fed. App’x. 292 (Fed. Cir. 2008).
  • Copyright Act of 1976, 17 U.S.C. § 102 (Fair Use); § 107 (Exemption); § 107 (Historical and Statutory Notes—Guidelines for Classroom Copying in Not-For-Profit Educational Institutions); § 107 (Historical and Statutory Notes—Guidelines for Educational Uses of Music); § 108 (Reproduction by Libraries and Archives); § 110 (Performance Exemptions); § 112 (Limitations on Exemptions); § 201(b) (Works for Hire); § 412 (Damages and Attorney Fees); § 504(c) (Statutory Damages).
  • Marcus v. Rowley, 695 F.2d 1171 (9th Cir. 1983).
  • Nazer v. Stein, 347 U.S. 201 (1954).
  • Pavlica v. Behr, 397 F. Supp. 2d 519 (S.D.N.Y 2005).
  • Twentieth Century–Fox Film Corporation, et al. v. MCA inc., et al., 715 F.2d 1327 (9th Cir. 1983).