Code of Best Practices in Fair Use for Media Literacy Education
By: The Media Commission of the National Council of Teachers of English (NCTE), National Association for Media Literacy Education (NAMLE), Student Television Network (STN), Action Coalition for Media Education (ACME), and Visual Communication Division of the International Communication Association (ICA)
The International Visual Literacy Association (IVLA)
The American Association of School Librarians (AASL)
The National Communication Association (NCA)
Funded by the John D. and Catherine T. MacArthur Foundation, with additional support from the
Ford Foundation through the Future of Public Media Project.
WHAT THIS IS
This document is a code of best practices that helps educators using media literacy concepts and
techniques to interpret the copyright doctrine of fair use. Fair use is the right to use copyrighted
material without permission or payment under some circumstances – especially when the cultural or
social benefits of the use are predominant. It is a general right that applies even in situations where
the law provides no specific authorization for the use in question – as it does for certain narrowly
defined classroom activities.
This guide identifies five principles that represent the media literacy education community’s current
consensus about acceptable practices for the fair use of copyrighted materials, wherever and
however it occurs: in K-12 education, in higher education, in non-profit organizations that offer
programs for children and youth, and in adult education.
WHAT THIS ISN’T
This code of best practices does not tell you the limits of fair use rights. Instead, it describes how
those rights should apply in certain recurrent situations. Educators’ and students’ fair use rights
may, of course, extend to other situations as well.
It’s not a guide to using material that people give the public permission to use, such as works
covered by Creative Commons licenses. Anyone can use those works the way their owners authorize
– although other uses also may also be permitted under the fair use doctrine. Likewise, it is not a
guide to the use of material that has been specifically licensed (by a school, for example), which may
be subject to contractual limitations.
It’s not a guide to material that is already free to use without considering copyright
(copyright.cornell.edu/public_domain/). For instance, all federal government works are in the
public domain, as are many older works. For more information on .free use,. consult the document
.Yes, You Can!. (centerforsocialmedia.org/files/pdf/free_use.pdf).
It’s not a guide to using material that someone wants to license but cannot trace back to an
owner—the so-called .orphan works. problem. However, orphan works are also eligible for fair use
consideration, according to the principles detailed below.
And it does not address the problems created by the 1998 Digital Millennium Copyright Act, which
creates barriers to otherwise lawful fair uses of copyrighted materials that are available only in
formats that incorporate technological protections measures (such as encryption).
HOW THIS DOCUMENT WAS CREATED
This code of best practices was created by convening ten intensive half-day meetings with more than
150 members of leading educational associations and other educators in cities across the United
States. The process was coordinated by Profs. Renee Hobbs (Media Education Lab, Temple
University), Peter Jaszi (Program on Information Justice and Intellectual Property, Washington
College of Law, American University) and Patricia Aufderheide (Center for Social Media, American
University). The code of best practices was reviewed by a committee of legal scholars and lawyers
expert in copyright and fair use. (Consult page XX for a complete list.)
MEDIA LITERACY EDUCATION
Media literacy is the capacity to access, analyze, evaluate and communicate messages in a wide
variety of forms. This expanded conceptualization of literacy responds to the demands of cultural
participation in the 21st century. Like literacy in general, media literacy includes both receptive and
productive dimensions, encompassing critical analysis and communication skills, particularly in
relationship to mass media, popular culture and digital media. Like literacy in general, media literacy
is applied in a wide variety of contexts – when watching television or reading newspapers, for
example, or when posting commentary to a blog. Indeed, media literacy is implicated everywhere
one encounters information and entertainment content. And like literacy in general, media literacy
can be taught and learned.
Media literacy education may occur as a separate program or course but often it is embedded within
other subject areas, including literature, history, anthropology, sociology, public health, journalism,
communication and education. It can occur in formal educational settings in both K-12 education
and at the university level, as well as in non-profit community-based programs. Its content may vary
as well – from lessons designed to expose the mechanics of how language, images, sound, music and
graphic design operate as symbolic forms for transmitting meanings to exercises designed to
reinforce these understandings through hands-on media-making.
Media literacy education distinctively features the analytical attitude that teachers and learners,
working together, adopt toward the media objects they study. The foundation of effective media
analysis is the recognition that:
. All media messages are constructed.
. Each medium has different characteristics, strengths, and a unique language of construction.
. Media messages are produced for particular purposes.
. All media messages contain embedded values and points of view.
. People use their individual skills, beliefs and experiences to construct their own meanings
from media messages.
. Media and media messages can influence beliefs, attitudes, values, behaviors, and the
Making media and sharing it with listeners, readers and viewers is essential to the development of
critical thinking and communication skills. Feedback deepens reflection on one’s own editorial and
creative choices, and helps students grasp the power of communication.
USE OF MEDIA IN EDUCATION vs. MEDIA LITERACY EDUCATION
Teachers have always used texts, now including audiovisual and digital material, to convey facts and
information. From time to time, the school is also a venue for entertainment, as when a film is
screened to reward the class. These activities, however, are not media literacy education. Rather than
transforming the media material in question, they use that content for essentially the same purposes
for which it originally was intended – to instruct or to entertain. In many or even most cases, of
course, these uses of media will not have significant copyright implications, either because the
content in question has been licensed or because it is covered by one of the specific exemptions for
teachers in Sections 110(1) and (2) of the Copyright Act (for .face-to-face. in the classroom and
equivalent distance practices in distance education). Teachers involved in media literacy education
may, of course, sometimes make use of licensed materials or take advantage of the provisions of
Section 110. But this guide addresses another set of issues: the transformative uses of copyright
materials in media literacy education that can flourish only with a robust understanding of fair use.
COPYRIGHT: A CONTENTIOUS CLIMATE
New norms of information sharing—file sharing, downloading, podcasting--are emerging at the very
moment when copyright owners are attempting to capture new revenue streams from various
sources including the .educational market.. As documented in the report, .The Cost of Copyright
Confusion for Media Literacy,. (centerforsocialmedia.org/medialit) educators involved in media
literacy feel uncertain in this new environment of heightened commodification. On the one hand,
they sense that copyrighted material should be available for their activities and those of their
learners, and that such availability has great social and cultural utility. But on the other, they are
aware of the increased vigilance with which copyright owners are enforcing their rights. And their
actual understanding of the subject is incomplete or even distorted. As a result, there is an increased
climate of fear and confusion about copyright, which detracts from the quality of teaching. Lack of
clarity reduces learning and limits the ability to use digital tools. Some educators close their
classroom doors and hide what they fear is infringement; others hyper-comply with imagined rules
that are far stricter than the law requires, limiting the effectiveness of their teaching and their
FAIR USE AND EDUCATION
Educators and learners in media literacy often make uses of copyrighted materials that stand far
outside the marketplace, for instance in the classroom, at a conference, or within a school-wide or
district-wide festival. Such uses, especially when they occur within a delimited network, do enjoy
certain copyright advantages. As a practical matter, they may be less likely to be challenged by rights
holders. More important, however, if challenged they would be more likely to receive special
consideration under the fair use doctrine – because they occur within an educational setting.
From the beginnings of fair use in the courts, judges have drawn the connection between this special
doctrine of copyright law and the central importance of education in the American republic. The
word .education. appears prominently in the preamble to Section 107 of the current Copyright Act,
where the doctrine is codified. However, there have been no important court decisions – in fact,
very few decisions of any kind – that actually interpret and apply the doctrine in an educational
context. This means that educators who want to claim the benefits of fair use have a rare
opportunity to be open and public about asserting the appropriateness of their practices and the
justifications for them. This code is intended to support such assertions. It also means that
educators seeking to arrive at a reasonable and balanced understanding of the doctrine, like the
authors of this code, need to reason from first principles.
Law provides copyright protection to creative works in order to foster the creation of culture. Its
best known feature is protection of owners’ rights. But copying, quoting and generally re-using
existing cultural material can be, under some circumstances, a critically important part of generating
new culture. In fact, the cultural value of copying is so well established that it is written into the
social bargain at the heart of copyright law. The bargain is this: we as a society give limited property
rights to creators to encourage them to produce culture; at the same time, we give other creators the
chance to use that same copyrighted material, without permission or payment, in some
circumstances. Without the second half of the bargain, we could all lose important new cultural
Copyright law has several features that permit quotations from copyrighted works without
permission or payment, under certain conditions. Fair use is the most important of these features. It
has been an important part of copyright law for more than 170 years. Where it applies, fair use is a
user’s right. In fact, as the Supreme Court has pointed out, fair use keeps copyright from violating
the First Amendment. New creation inevitably incorporates existing material. As copyright
protects more works for longer periods than ever before,, creators face new challenges: licenses to
incorporate copyrighted sources become more expensive and more difficulty to obtain – and
sometimes are simply unavailable. As a result, fair use is more important today than ever before.
Copyright law does not exactly specify how to apply fair use, and that gives the fair use doctrine a
flexibility that works to the advantage of users. Creative needs and practices differ with the field,
with technology, and with time. Rather than following a specific formula, lawyers and judges decide
whether an unlicensed use of copyrighted material is .fair. according to a .rule of reason.. This
means taking all the facts and circumstances into account to decide if an unlicensed use of
copyrighted material generates social or cultural benefits that are greater than the costs it imposes on
the copyright owner.
Fair use is flexible; it is not unreliable. In fact, for any particular field of critical or creative activity,
lawyers and judges consider expectations and practice in assessing what is .fair. within that field.
In weighing the balance at the heart of fair use analysis, judges refer to four types of considerations
mentioned in the law: the nature of the use, the nature of the work used, the extent of the use, and
its economic effect (the so-called .four factors.). This still leaves much room for interpretation,
especially since the law is clear that these are not the only permissable considerations. So how have
judges interpreted fair use? In reviewing the history of fair use litigation, we find that judges return
again and again to two key questions:
. Did the unlicensed use .transform. the material taken from the copyrighted work by using it
for a different purpose than that of the original, or did it just repeat the work for the same
intent and value as the original?
. Was the material taken appropriate in kind and amount, considering the nature of the
copyrighted work and of the use?
If the answers to these two questions are .yes,. a court is likely to find a use fair. Because that is
true, such a use is unlikely to be challenged in the first place.
Both key questions touch on, among other things, the question of whether the use will cause
excessive economic harm to the copyright owner. Courts have told us that copyright owners aren’t
entitled to an absolute monopoly over transformative uses of their works. By the same token,
however, when a use supplants a copyright owner’s core market, it is unlikely to be fair. Thus, for
example, a textbook author cannot quote large parts of a competitor’s book merely to avoid the
trouble of writing her own exposition.
Another consideration underlies and influences the way in which these questions are analyzed:
whether the user acted reasonably and in good faith, in light of general practice in his or her
particular field. Media literacy educators’ ability to rely on fair use will be enhanced by this code of
best practices, which will serve as evidence of commonly held understandings drawn from the
experience of educators themselves and supported by legal analysis. Thus, the code helps to
demonstrate the reasonableness of uses that fall within its principles.
Fair use is in wide and vigorous use today in many professional communities. For example,
historians regularly quote both other historians’ writings and textual sources; filmmakers and visual
artists use, reinterpret and critique copyright material, while scholars illustrate cultural commentary
with textual, visual, and musical examples. Equally important is the example of commercial news
media. Fair use is healthy and vigorous in daily broadcast television news, where references to
popular films, classic TV programs, archival images, and popular songs are constant and routinely
In some cases professional communities have set forth their understandings in consensus
documents, which may be useful to educators and learners if they are involved with these creative
practices. For instance, documentary filmmakers have established their own code
(centerforsocialmedia.org/fairuse); so have film scholars, who routinely use popular films in their
teaching (dii4.com/documents/SCMSBestPracticesforFairUseinTeaching-Final.pdf); and now a
code of best practices has been established for online video creators as well
(centerforsocialmedia.org/remix). Although professional groups create such codes, no one needs to
be a member of a professional group to benefit from their interpretations. For instance, any one
who does media literacy education, in any circumstances, can usefully employ this code’s principles.
THE TYRANNY OF GUIDELINES AND EXPERTS
Today, some educators mistakenly believe that the issues covered in the fair use principles below are
not theirs to decide. They believe they must follow various kinds of .expert. guidance offered by
others. In fact, the opposite is true. The various negotiated agreements that have emerged since
passage of the Copyright Act of 1976 have never had the force of law, and in fact, the guidelines
bear little relationship to the actual doctrine of fair use. Sadly, as legal scholar Kenneth Crews has
demonstrated (URL HERE), many publications for educators reproduce the guidelines uncritically,
presenting them as standards that must be adhered to in order to act lawfully. Experts (often non-
lawyers) give conference workshops for K-12 teachers, technology coordinators, and library/media
specialists where these guidelines and similar sets of purported rules are presented with rigid,
official-looking tables and charts. At the same time, materials on copyright for the educational
community tend to overstate the risk of educators being sued for copyright infringement -- and in
some cases convey outright misinformation about the subject. In effect, they interfere with genuine
understanding of the purpose of copyright—to promote the advancement of knowledge through
balancing the rights of owners and users.
In fact, this is an area in which educators themselves should be leaders rather than followers. Often,
they can assert their own rights under fair use to make these decisions on their own, without
approval. In rare cases where doing so would bring them into conflict with misguided institutional
policies, they should assert their rights and seek to have those policies changed. More generally,
educators should share their knowledge of fair use rights with library/media specialists, technology
specialists, and other school leaders to assure that their fair use rights are put into institutional
Code of Best Practices in Fair Use for Media Literacy Education
GENERAL POINTS ABOUT PRINCIPLES
Through its five principles this code of best practices identifies five sets of current practices in the
use of copyrighted materials in media literacy education to which the doctrine of fair use clearly
applies. These practices are associated with K-12 education, higher education, and in classes given by
non-profit organizations. When students or educators use copyrighted materials in their own
creative work outside of an educational context, they can rely on fair use guidelines created by other
creator groups, including documentary filmmakers and online video producers.
These principles apply to all forms of media. Depending on the instructional goal, educators
may use materials designed for entertainment, persuasive or advocacy purposes. They may use print,
images, websites, moving image media, and sound media – in both analog and digital forms. In all
cases, a digital copy is the same as a hard copy in terms of fair use. Veteran teachers may keep
clippings from newspapers in manila file folders to use for media literacy education; younger ones
may store their materials as digital files. Functionally, their practices are identical.
The principles apply in institutional settings and to non-school-based programs. Media
literacy education may occur in university classrooms, in elementary schools, in computer labs in
community technology centers, or in after-school and summer camp programs run by religious
groups or non-profit organizations. In addition to their fair use rights, teachers in conventional
schools enjoy the benefit of limited educational exemptions under Section 110(1) and (2) of the
Copyright Act. Educators in community-based organizations may not be be covered by these
exemptions,,but they are fully entitled to freely use copyrighted materials under the doctrine of fair
The principles concern the unlicensed fair use of copyrighted materials for education, not
the way those materials were acquired. When a user’s copy was obtained illegally or
in bad faith, that fact may affect fair use analysis. Otherwise, of course, where a
use is fair, it is irrelevant whether the source of the content in question was a recorded over-the-air
broadcast, a teacher’s personal copy of a newspaper or a DVD, or a rented or borrowed piece of
media. Labels on commercial media products proclaiming that they .licensed for home (or private
or educational or non-commercial) use only. do not affect in any way the educator’s ability to make
fair use of the contents – in fact, such legends have no legal effect whatsoever. (If a teacher is using
materials subject to a license agreement negotiated by the school or school system, however, she
may be bound by the terms of that license.)
The principles are all subject to a “rule of proportionality.” Educators’ and students’ fair use rights extend to
the portions of copyrighted works that they need to accomplish their educational goals – and
sometimes even to works in their entirety. By the same token, the fairness of a use depends, in part,
on whether the user took more than was needed to accomplish his or her legitimate purpose. That
said, there are no numerical rules of thumb that can be relied upon in making this determination.
ONE: EMPLOYING COPYRIGHTED MATERIAL IN MEDIA LITERACY LESSONS
DESCRIPTION: Educators use television news, advertising, movies, still images, newspaper and
magazine articles, websites, videogames and other copyrighted material to build critical thinking and
communication skills. Common instructional activities include comparison/contrast analysis, de-
construction (close analysis) of the form and content of a message, illustration of key points, and
examination of the historical, economic, political or social contexts in which a particular message
was produced and is received.
PRINCIPLE: Under fair use, educators using the concepts and techniques of media literacy can
choose illustrative material from the full range of copyrighted sources, and make them available to
learners, in class, in workshops, in informal mentoring and teaching settings, and on school-related
LIMITATIONS: Educators should choose material that is germane to the project or topic, using
only what is necessary for the educational goal or purpose for which it is being made. In some
cases, this will mean using a clip or excerpt; in other cases, the whole work is needed. Whenever
possible, educators should provide proper attribution and model citation practices that are
appropriate to the form and context of use. Where illustrative material is made available in digital
formats, educators should provide reasonable protection against third-party access and downloads.
TWO: EMPLOYING COPYRIGHTED MATERIAL IN PREPARING CURRICULUM
DESCRIPTION: Teachers use copyrighted materials in the creation of lesson plans, materials, tool
kits, and curricula in order to apply the principles of media literacy education and use digital
technologies effectively in an educational context. These materials often include clips, copies or
examples of copyrighted work along with a description of instructional practices, assignments and
assessment criteria. These materials may include samples of contemporary mass media and popular
culture as well as older media texts that provide historical or cultural context.
PRINCIPLE: Under fair use, educators using the concepts and techniques of media literacy can
integrate copyrighted material into curriculum materials, including books, workbooks, podcasts,
DVD compilations, videos, websites and other materials designed for learning.
LIMITATIONS: Wherever possible, educators should provide attribution for quoted material, and
of course they should use only what is necessary for the educational goal or purpose. The materials
should meet professional standards for curriculum development, with clearly stated educational
objectives, a description of instructional practices, assignments and assessment criteria.
THREE: SHARING MEDIA LITERACY CURRICULUM MATERIALS
DESCRIPTION: Media literacy curriculum materials always include copyrighted content from mass
media and popular culture. Informal sharing of these materials occurs at educational conferences
and through professional development programs, as well by electronic means. Media literacy
curriculum materials are also developed commercially in collaboration with publishers or non-profit
PRINCIPLE: Educators using concepts and techniques of media literacy should be able to share
effective examples of teaching about media and meaning with one another, including lessons and
resource materials. If curriculum developers are making sound decisions on fair use when they
create their materials, then their work should be able to be seen, used and even purchased by anyone
-- since fair use applies to commercial materials as well as those produced outside the marketplace
LIMITATIONS: In materials they wish to share, curriculum developers should be especially careful
to choose illustrations from copyrighted media that are necessary to meet the educational objectives
of the lesson, using only what furthers the educational goal or purpose for which it is being made.
Often this may mean using a small portion, clip or excerpt, rather than an entire work, although
sometimes it may be permissible to use more – or even all. Curriculum developers should not rely
on fair use when using copyrighted third-party images or texts to promote their materials. For
promotional purposes, the permissions process is appropriate. In addition, if a teacher or a school
has specifically agreed to a license, then (of course) its terms are likely to be binding – even if they
impinge on what would otherwise be considered fair use. And, of course, illustrative material should
be properly attributed wherever possible.
FOUR: STUDENT USE OF COPYRIGHTED MATERIALS IN THEIR OWN
ACADEMIC AND CREATIVE WORK
DESCRIPTION: Students strengthen media literacy skills by creating messages and using symbolic
forms such as language, images, sound, music and digital media to express and share meaning. In
learning to use video editing software and in creating remix videos, students learn how juxtaposition
re-shapes meaning. Students include excerpts from copyrighted material in their own creative work
for many purposes, including for comment and criticism, for illustration, to stimulate public
discussion, or in incidental or accidental ways (for example, when they make a video capturing a
scene from everyday life where copyrighted music is playing).
PRINCIPLE: Because media literacy education cannot thrive unless learners themselves have the
opportunity to learn about how media functions at the most practical level, educators using concepts
and techniques of media literacy should be free to enable learners to incorporate, modify and re-
present existing media objects in their own classroom work. Media production can foster and
deepen awareness of the constructed nature of all media, one of the key concepts of media literacy.
The basis for fair use here in embedded in good pedagogy.
LIMITATIONS: Students’ use of copyrighted material should not be a substitute for creative
effort. Students should be able to understand and demonstrate, in a manner appropriate to their
developmental level, how their use of a copyrighted work re-purposes or transforms the original.
For example, students may use copyrighted music for a variety of purposes, but cannot rely on fair
use when their goal is simply to establish a mood or convey an emotional tone, or when they employ
popular songs simply to exploit their appeal and popularity. Again, material that is incorporated
under fair use should be properly attributed wherever possible. Students should be encouraged to
make their own careful assessments of fair use, and should be reminded that attribution, in itself,
does not convert an infringing use into a fair one.
FIVE: DEVELOPING AUDIENCES FOR STUDENT WORK
DESCRIPTION: Students who are expected to behave responsibly as media creators and who are
encouraged to reach other people outside the classroom with their work learn most deeply.
Although some student media productions are simply learning exercises designed to develop
knowledge and skills, media literacy educators often design assignments so that students have the
opportunity to distribute their work.
PRINCPLE: Educators should work with learners to make a reasoned decision about distribution
that reflects sound pedagogy and ethical values. In some cases, widespread distribution of students’
work (via the Internet, for example) is appropriate. If student work that incorporates, modifies and
re-presents existing media content meets the transformativeness standard, it can be distributed to
wide audiences under the doctrine of fair use.
LIMITATIONS: Educators and learners in media literacy often make uses of copyrighted works
outside the marketplace, for instance in the classroom, a conference, or within a school-wide or
district-wide festival. When sharing is confined to a delimited network, such uses are more likely to
receive special consideration under the fair use doctrine.
Especially in situations where students wish to share their work more broadly (by distributing it to
the public, for example, or including it as part of a personal portfolio) educators should take the
opportunity to model the real-world permissions process, with explicit emphasis not only to how
that process works, but also how it affects media making. In particular, educators should explore
with students the distinction between material that should be licensed, material that is in the public
domain or otherwise openly available, and copyrighted material that is subject to fair use. The
ethical obligation to provide proper attribution also should be examined. And students should be
encouraged to understand how their distribution of a work raises other ethical and social issues,
including the privacy of the subjects involved in the media production.
Most .copyright education. that educators and learners have encountered has been shaped by the
concerns of corporate copyright holders, whose understandable concern about large-scale copyright
piracy has caused them to equate any unlicensed use of copyrighted material with stealing. The
situation has been compounded by the – again understandable – risk-aversion of school system
administrators and lawyers. So-called fair use guidelines that institutional stakeholders have
negotiated with corporate copyright holders have had similar results, intensifying fear and creating
confusion among educators. These approaches have not responded directly to the actual needs of
educators and learners, nor have they fully expressed or recognized the legal rights that educators
and learners have.
This code of best practices, by contrast, is shaped by educators for educators and the learners they
serve, with the help of legal advisers.. As an important first step in reclaiming their fair use rights,
educators should employ this document to inform their own practices in the classroom and beyond.
The next step is for educators to communicate their own learning about copyright and fair use to
others, both through practice and through education. Learners mastering the concepts and
techniques of media literacy need to learn about the important rights that all new creators, including
themselves, have under copyright to use existing materials. Educators also need to share their
knowledge and practice with critically important institutional allies and colleagues, such as librarians
and school administrators.
COMMON MYTHS ABOUT FAIR USE
MYTH: FAIR USE IS TOO UNCLEAR AND COMPLICATED FOR ME; IT'S BETTER LEFT
TO LAWYERS AND ADMINISTRATORS.
Truth: The fair use provision of the Copyright Act is written broadly – not narrowly--because it is designed to
apply to a wide range of creative works and the people who use them. Fair use is a part of the law that belongs
to everyone – especially to working educators. Educators know best what they need to use of existing
copyrighted culture to construct their own lessons and materials. Only members of the actual community can
decide what’s really needed. Once they know, they can tell their lawyers and administrators.
MYTH: EDUCATORS CAN RELY ON “RULES OF THUMB” FOR FAIR USE GUIDANCE.
Truth: Despite longstanding myths, there are no cut-and-dried rules (such as 10% of the work being quoted,
or 400 words of text, or two bars of music, or 10 seconds of video). Fair use is situational, and context is
critical. Because it is a tool to balance the rights of users with the rights of owners, educators need to apply
reason to reach a decision. The principles and limitations above are designed to guide your reasoning, and to
help you guide the reasoning of others.
MYTH: SCHOOL SYSTEM RULES ARE THE LAST WORD OF FAIR USE BY EDUCATORS.
Truth: If your school system’s rules let you do everything you need to do, you certainly don’t need this code.
But if you need to exercise your fair use rights to get your work done well, in ways that your system’s rules
don’t foresee, that’s a different story. Many school systems have policies based on so-called negotiated fair
use guidelines, as discussed above. In their implementation of those guidelines, systems tend to confuse a
limited .safe harbor. zone of absolute security for the entire range of possibility fair use makes available.
MYTH: FAIR USE IS JUST FOR CRITIQUES, COMMENTARIES OR PARODIES.
Truth: Transformativeness, a key value in fair use law, can involve modifying material or putting material in a
new context, or both. Fair use applies to a wide variety of purposes, not just critical ones. Using an
appropriate excerpt from copyrighted material to illustrate a key idea in the course of teaching is likely to be a
fair use, for example. Indeed, the Copyright Act itself makes it clear that educational uses will often be
considered fair because they add important pedagogical value to referenced media objects.
MYTH: IF I’M NOT MAKING ANY MONEY OFF IT, IT’S FAIR USE. (AND IF I AM MAKING
MONEY OFF IT, IT’S NOT.)
Truth: .Noncommercial use. can be a plus in fair use analysis, but its scope is hard to define. If educators or
learners want to share their work only with a class (or another defined, closed group) they are in a favorable
position. However, some more public uses may be unfair even if no money is exchanged. So if work is going
to be shared widely, it is good to be able to rely on transformativeness. As the cases show, a transformative
new work can be highly commercial in intent and effect, and still qualify under the fair use doctrine.
MYTH: FAIR USE IS ONLY A DEFENSE, NOT A RIGHT.
Truth: In court, doctrines like self defense or freedom of speech or fair use aren’t considered until after the
plaintiff has proved that there may have been assault or defamation or copyright infringement. Procedurally,
that makes these doctrines .affirmative defenses.. But in the real world, people are entitled to protect
themselves from harm and to speak their minds; likewise, we acknowledge the right of fair use, which is
specifically provided by law to people who make reasonable but unauthorized use of copyrighted works.
MYTH: EMPLOYING FAIR USE IS TOO MUCH TROUBLE; I DON’T WANT TO FILL OUT
Truth: Users who claim fair use simply use copyrighted works after making an assessment of the particular
situation--- there’s nothing formal or official to .do. to claim fair use. You do not have to ask permission or
alert the copyright holder when considering a use of materials that is protected by fair use. But, if you choose,
you may inquire about permissions and still claim fair use if your request is refused or ignored. In some
cases, courts have found that asking permission and then being rejected has actually enhanced fair use claims.
MYTH: FAIR USE COULD GET ME SUED.
Truth: That’s very, very unlikely. We don’t know of any lawsuit actually brought by an American media
company against an educator over the use of media in the educational process. Before even considering a
lawsuit, a copyright owner typically will take the cheap and easy step of sending a .cease and desist. letter,
sometimes leading the recipient to think that she is being sued rather than just threatened. An aggressive tone
does not necessarily mean that the claims are legitimate or that a lawsuit will be filed.
The Media Education Lab, founded by Professor Renee Hobbs, improves media literacy
education through scholarship and community service. The lab is a project of the School of
Communications and Theater at Temple University in Philadelphia, Pennsylvania, led by Dean
The Program on Information Justice and Intellectual Property, led by Professor Peter Jaszi,
promotes social justice in law governing information dissemination and intellectual property through
research, scholarship, public events, advocacy, and provision of legal and consulting services. The
program is a project of the Washington College of Law at American University in Washington, D.C.,
led by Dean Claudio Grossman.
The Center for Social Media, led by Professor Patricia Aufderheide, showcases and analyzes
media for social justice, civil society, and democracy, and the public environment that nurtures them.
The center is a project of the School of Communication, led by Dean Larry Kirkman, at American
University in Washington, D.C.
LEGAL ADVISORY BOARD:
* NAMES HERE
Funded by the John D. and Catherine T. MacArthur Foundation, with additional support
from the Ford Foundation through the Future of Public Media Project.
Feel free to reproduce this work in its entirety. For excerpts and quotations, depend upon fair
INSIDE OF BACK COVER:
Info on recycling
Equal opportunity employer info
LOGOS OF THE THREE GROUPS
This project was coordinated by:
Renee Hobbs,Professor, Media Education Lab, Department of Broadcasting, Telecommunications
and Mass Media, Temple University
Peter Jaszi, Professor of Law, Director, Program on Information Justice and Intellectual Property,
Washington College of Law, American University
Patricia Aufderheide, Professor, Director of the Center for Social Media, School
of Communication, American University
MEL, PIJIP, CSM
Possible pull quotes:
Media literacy education helps people of all ages to be critical thinkers, effective communicators and
Media literacy education can only flourish with a robust understanding of fair use
Educators who want to use fair use must reason from first principles, in the absence of any case law.
Fair use is flexible; it is not uncertain or unreliable.
Educational guidelines have often hurt more than they have helped.
Educators need to be leaders, not followers, in setting best practices in fair use.