Educational Fair Use

As some readers may or may not know, I am editor of my state’s Art Education magazine, The Message.   Usually this means I’m writing an article once a month; sometimes full of useful information and other times, just information.  Regardless, this month’s article is a hot topic in any art education discussion: Educational Fair Use: How to steer your class, work, and students through copyright without interference.

I’ll start off by pointing out the published article is just a blub or information, primarily focusing on a visual flow chart for teachers to use.  This blog post will actually elaborate much more so on that topic both for those readers that needed more information and for my own reference.  I will also point out that I am not an expert in the field of copyright but I have done my fair amount  of research regarding the topic and try hard (especially as a new teacher) to grow my knowledge so that my classroom and my students are safe from any issues.  You are welcome to take information, tweak information, and contribute information to make this a more effective post. If you prefer just a quick blurb…and are more visual, click here.

Moving on…

A hot topic throughout schools right now is “Copyright”.  Many teachers can honestly admit that they understand what copyright means but not fully explain the extent of the laws in which we must follow.  Some teachers commonly mistake copyright for Plagiarism; while similar, the two are different ball games. Because of this, teachers and group leaders tend to forgo the full understanding and this leads to misunderstandings, misuse and in artistic situations, and can often result in the disqualification of student artwork for any given competition.

When I “surf the web” for resources, I become growingly frustrated with the amount of professionals I saw steal images from the internet, put them in their files, photographs, videos and not mention a single thing about where the actual image came from.  No credit where credit is due. I must admit, when I was just entering the world of art and art education, I made my fair share of mistakes and I’m sure from time to time we all do but the important thing to remember is that as leaders in education, especially the visual areas, we need to set an example and provide information to anyone who seems to be misunderstanding or misusing the Fair Use doctrine.

So let’s begin an overview.

Plagiarism is the an act or instance of using or closely imitating the language and thoughts of another author without authorization and the representation of that author’s work as one’s own, as by not crediting the original author.

Copyright gives exclusive rights to original work (not thought/text). Typically the amount of time the copyright lasts is limited.  Any work that has been copyrighted is owned by a specific person or company therefor anyone wishing to use that work must ask permission.  Permission can be denied but if it is granted there can be multiple limitations on the outside use of that work such as how it will be used, if it can make a profit, if you can change anything in the work, how and if it can be recreated, and more. Essentially, when you seek permission to use someone else’s work it is best to explain how and why so they can know the situation you’re in and why you wish to use it.  (More than often, an educator seeking permission will get it if they explain thoroughly how its’ use can impact learning.)

Copyright can be formally applied to work or it can also be considered an intellectual right that is “applicable to any expressible form of an idea or information”. 1 There is a lot to copyright including where the copyright is applicable, how many authors can be involved, etc.  The length of a copyright varies in different states, countries, etc.  The general duration of copyright lasts the length of the creator’s life plus anywhere from fifty to a hundred years thereafter.  The safe thing to assume?  Everything that is created by someone else has some range of copyright therefor caution is advised.

Educational Fair Use is an exception, or rather limits, without seeking permission, use of a copyrighted work.  The “Fair Use Doctrine” permits use of copyrighted material without asking permission but greatly limits how you can use the material. Search engines, news reporting, research, and teaching all fall under Educational Fair Use.  But it is very important you understand that this does not mean the flood gate opens and anything goes just because you’re inside a school building; far from it.

The “Educational Fair Use Doctrine” reads as follows:

Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, 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.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.2

For all of us that don’t read politics; this basically means that you can use work that is copyrighted so long as it is not for profit, commercial use, is suitably appropriate, the work stays intact and original to its’ use, and finally that the intended use will not affect the copyrighted materials’ value.

That does not mean the work can just be used and abused – this still means you should still the source – while not required, it is recommended good practice.  Furthermore, it means that using copyrighted material in something that will never see the light of day constitutes as “fair use”.  Now, before you get excited about something you’ve used that has no sign of copyright attached to it, you should understand that all work is intellectual property. Work that does not have the famous “copyright” symbol on it can still be protected by copyright laws.  In fact, work doesn’t even have to be registered with the US Copyright Office to be considered copyrighted. Filing the paperwork is just added protection.  So? You must be very careful.

A valid example of fair use?  If a student would like to use a copyrighted image to work from during a project without any reference to the source, doing so to practice a technique or similar could qualify.  If a student is making an art history presentation and wants to use images of other artwork, they could do so but having them cite the work would be good practice.

Most the time, if what you are doing stays in the confines of your classroom, you could be safe but if a student creates something and walks out your door, the liability surrounds the situation.

An invalid example of fair use?Having a student take a photograph from the internet and recreate it using a technique taught in class.  The image is copyrighted and should be cited for work.  If it’s an image of a celebrity, in some cases, the celebrity has gone as far as to copyright their image therefore that’s a double whammy.  If the student leaves the building with the artwork they created, having them gain permission from the original creator is highly advised because while the student may only end up hanging it in their bedroom, the possibilities after that are endless…students could choose to sell, reproduce, copy, or distribute their work and this is considered personal gain which instantly breaks the Fair Use doctrine and puts the student as risk.

I know that this can be confusing – in fact, even though myself and colleagues will discuss what we know of Fair Use, we still find ourselves backtracking to make sure we are right.

Here is a flow chart (click Fair Use Map for the downloadable PDF) that I created regarding this topic that helps figure out what path to take when using work from outside sources other than myself or students.  It is most applicable to art teachers but could essentially be used for any teacher.

Included are basic “rules of thumb” to keep in mind while figuring out your “plan of action”.

  1. If you did not personally create what you are working with, go ahead and assume that it’s copyrighted.
  2. If your use of the work will result in profit, distribution, or personal gain – you should always get permission to use it first.
  3. If the work is not being recreated or used outside a school building, you are typically safe but it is always safe to have the original resource cited and available.

While I now this is not an educational course that tells you everything there is to know, this information has helped me understand better how I use outside work in my class. Art classes probably see copyright issues the most in everything we do and it’s important that we advocate the importance of having children be original, and when not – that they know how to cite work and ask for permission.  This information is especially helpful to know and relay to any officials and teachers involved in competition work – it’s unfortunate when we see so many students get disqualified because they are uninformed about copyright.

1 World Intellectual Property Organization. “Understanding Copyright and Related Rights” (PDF).  WIPO. pp. 6–7. Retrieved August 2008.
2“US CODE: Title 17,107. Limitations on exclusive rights: Fair use”. 2009-05-20. Retrieved 2009-06-16.


7 responses to “Educational Fair Use

  1. Great Flow chart. Thanks you for creating it in a downloadable image that can be posted in my classroom. Is that still fair use? I think you should have put your name on it.

  2. Thanks – glad it can be of some use – I think my name is “somewhere” on there, or reference to my blog is but have at it – you have my complete permission to use it! 🙂

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  7. Hey Lisa – I was impressed with your presentation at AEI on Copyright and think the flow chart is great! I will “pin” it and share the love! I hope you are enjoying your position at the elementary level. It seems to suit you well!

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