Usually, copyrighted material is strictly protected, and many companies and individuals owning copyrighted materials have successfully pressed charges against people using those materials illegally.
However, this doesn’t mean you can’t use any copyrighted work at all. In order to allow for education, news reporting, criticism and commentary, and parodies expressing an opinion protected under the First Amendment (Freedom of Speech), Congress allowed for Fair Use.
Fair Use is a part of copyright law that allows you as students and faculty to make a personal copy of an article, show a film in class, or listen to a podcast or song from a CD with your students for discussion. Fair Use allows for copyrighted materials to be used for personal use in the case of teaching or learning, within reason, and without permission from the copyright holder. There are limits, however, based on the four Fair Use criteria that is used to judge whether or not your specific use falls into the green, OK-to-use zone or the red, this-may-get-you-in-legal-trouble zone.
Factual works are in most cases more likely to be used in research, teaching, and learning, and therefore are generally considered more appropriate for “Fair Use”. However, creative, fictional works may be studied within an English class focusing on criticism and commentary. Using a large amount of material from the Harry Potter books in a research paper critiquing J. K. Rowling’s writings is part of the teaching and learning process, and would be OK, provided that the amount used isn’t excessive (see #3).
Purpose has a lot to do with Fair Use; as mentioned above, if the purpose for using the copyrighted work is for learning, teaching, research, news reporting, criticism and critique, or parody, then you have a stronger case to claim Fair Use than if you are using it to make a more creative work. Fan fiction is not covered under Fair Use, and in fact violates copyright law, which states that only the copyright holder can make derivative works (works based off an original). So creating an 8th book for the Harry Potter series, or a prequel, is not Fair Use.
Just for your own information, most copyright holders do ignore fan fiction posts, some even encourage it as they see it as free advertising, but there have been cases where fan fiction authors have been told to remove their fan fictions from the Internet for copyright reasons. When in doubt, it’s best not to do it.
Using smaller parts of the larger whole is much more fair; after all, if you reprint most of the book, there’s not much reason for someone to get a copy of the original, and the copyright holder loses a sale. Fair Use would allow you to use small passages and quotes from J. K. Rowling’s Harry Potter series in a research paper about Rowling’s writings or in a broader paper about fantasy in literature, but taking a whole chapter from the work is too much.
Yes, money is one of the four factors, since copyright holders tend to make money off their creations. So any copy you make may directly influence how much they make off their work. (This is one reason why, as mentioned in #3, you can only use a small part of the work.) But even a small part can make a big difference, and this is why some works–particularly workbooks, which are meant to be used only once–can never be copied!
Here’s a short list of some of the most common uses of copyrighted materials that students and teachers do, and that are usually covered by Fair Use:
The Ancilla-College-Fair-Use-Checklist will help you decide whether or not your use is covered by Fair Use or not. Read through each item under each of the four factors and check any and all that apply–be honest with yourself as to what type of work, your purpose, how much you plan to use, and the likely economical impact your use will have! Total the left side responses and the right; if there are more checks on the left, it’s likely you can claim Fair Use. If more checks fall on the right, it is likely you can’t legally claim Fair Use. Oh, and feel free to make as many copies of the checklist as you need–we consider its use to fall under Fair Use!
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