Code of Best Practices in Fair Use for Media Literacy Education

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 nonprofit 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!”

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 meetings with more than 150 members of leading educational associations, including signatories to this document, and other educators 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 was reviewed by a committee of legal scholars and lawyers expert in copyright and fair use. (Consult pages 18–19 for a complete list of signatories and members of the legal committee.)

Media Literacy Education

Media literacy education helps people of all ages to be critical thinkers, effective communicators, and active citizens.

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 twenty-first 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 nonprofit 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 and 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 democratic process

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

Media literacy education can flourish only with a robust understanding of fair use.

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, 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 a climate of increased 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 students’ learning.

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 restricted-access 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. In addition, educators who rely reasonably on fair use are insulated against statutory damages in Sec. 504(c)(2). 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.

Fair Use

Fair use is flexible. It is not uncertain and it is not unreliable.

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 work.

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 difficult 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 permissible 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 documentation of commonly held understandings drawn from the experience of educators themselves and supported by legal analysis. Thus, the code helps to show that the uses of copyrighted materials described here are reasonable and appropriate for the purposes of teaching and learning.

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 unlicensed.

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; so have film scholars, who routinely use popular films in their teaching; and now a code of best practices has been established for online video creators as well. 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

Educational guidelines have often hurt more than they have helped.

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 in “The Law of Fair Use and the Illusion of Fair-Use Guidelines,” The Ohio State Law Journal 62 (2001): 602–700 (http://moritzlaw.osu.edu/lawjournal/issues/volume62/number2/crews.pdf), 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 or 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 and media specialists, technology specialists, and other school leaders to assure that their fair use rights are put into institutional practice.

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 nonprofit 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 and for persuasive or advocacy purposes. They may use print, images, Web sites, 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 nonprofit 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 covered by these exemptions, but they still can claim the right to use copyrighted materials under the doctrine of fair use.

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 are “licensed for home [or private or educational or noncommercial] 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 small or short 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

Educators use television news, advertising, movies, still images, newspaper and magazine articles, Web sites, video games, and other copyrighted material to build critical-thinking and communication skills. Common instructional activities include comparison-contrast analysis, deconstruction (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 Web sites.

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 Materials

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, Web sites, 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

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 nonprofit organizations.

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 model.

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

Students strengthen media literacy skills by creating messages and using such symbolic forms 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 reshapes 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 is 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 repurposes 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

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.

PRINCIPLE: 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 on how that process works, but also on 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.

Signatories

Action Coalition for Media Education
A member-supported, independent, nonprofit educational coalition of educators, students, health professionals, journalists, media makers, parents, activists, and other citizens 

Media Education Foundation
Produces and distributes films, study guides, and other teaching materials that examine the impact of media on society

National Association for Media Literacy Education
Formerly Alliance for a Media Literate America, a national membership organization dedicated to advancing the practice of media literacy education in the United States

National Council of Teachers of English
A 60,000-member international organization devoted to improving the teaching and learning of English and the language arts at all levels of education

Visual Communication Studies Division of the International Communication Association
A division examining visual representation in all its forms, within an academic association for scholars interested in the study of communication with more than 3,500 members in 65 countries

Legal Advisory Board

Jamie B. Bischoff
Ballard Spahr Andrews and Ingersoll LLP
Philadelphia, Pennsylvania

Robert W. Clarida
Cowan, Liebowitz, and Latman, P.C.
New York, New York

Kenneth D. Crews
Copyright Advisory Office
Columbia University
New York, New York

Michael J. Madison
University of Pittsburgh
School of Law
Pittsburgh, Pennsylvania

Jennifer Urban
Intellectual Property and Technology Law Clinic
University of Southern California
Los Angeles, CA

Coordinating Organizations

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 Concetta Stewart.

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 Media & Social Impact, 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.

Feel free to reproduce this work in its entirety. For excerpts and quotations, depend upon fair use.