Teaching Tools for Fair Use: An Introduction

Learning Goals

  • Students will gain a general understanding of the following terms:
    • Copyright
    • Public domain
    • Fair use
  • Students will learn how to conduct a fair use analysis when incorporating copyrighted material (image, text, video, digital, etc.) into his/her creative or scholarly work.

Components for Teaching Fair Use

  • These Teaching Tools are organized into five sections:
    1. The Basics
    2. Classroom Discussion Materials
    3. Assignments
    4. Supplementary Materials
    5. More Information

    Depending on how much time you have to teach about fair use, you can select the materials that best suit your needs. For example, with limited time, you may choose to introduce the subject by discussing CMSI’s Code of Best Practices in Fair Use for the Visual Arts (Section IB), followed by a classroom discussion using one of the Talking Points (Section IIB or C) or “Fair Use: You be the Judge” (Section IID). If you have more time you can include a video and/or PowerPoint (Section IVB and C), and a class assignment (Section III). For graduate courses, you can go into greater depth by making use of the background materials in Sections I and IV, and also explore additional resources included on the CAA and CMSI websites (Section V).

Tips on Teaching Fair Use

  • Don’t depend on litigation to teach them about fair use; lawsuits are typically outlier cases, and your students need to know the most common, routine, and useful ways to use it. If they want to delve into cases such as one of the Koons cases or Mr. Brainwash (both discussed in Talking Points for Fair Use in Art Making (Section IIA), note where the choices of these artists align, and don’t, with the logic of the situations in the Code. Ask how the artists might have made decisions that were more comfortably within the Code’s parameters, and how the Code would have affected the art. Depend on the Code of Best Practices in Fair Use for the Visual Arts.
  • Avoid checklists, flow charts, rigid rules (e.g., quoting 1/10th of a text is fair use, or making seven changes to an image, is needed to qualify as fair use, etc.). That’s all folklore. Instead, ground them in the basic logic of fair use decision making, as outlined in CAA’s Code of Best Practices.
  • Evaluate your students’ performance according to their ability to articulate reasoning that aligns with the Code, and specifically the limitations for each principle. The limitations are where the rubber hits the road in fair use.
  • Have other students, where possible, question the student working through a problem, to get practice in articulating and justifying a fair use.
  • Make sure the students understand that the key notion of “transformation” is about repurposing and context, not about changes to the actual material used.

Relying on Fair Use in Classroom Teaching

When can you depend on fair use in your classroom teaching? Here’s some help:

Building Fair Use Into Assignments and Tests

You can always give your students an assignment that lets them show you their best reasoning about fair use. But you can also build into your existing assignments a requirement that they consider the fair use implications of their choices, and develop their reasoning skills. (See Class Assignments, Section III.) A midterm, final, or quiz can contain a question that lets them demonstrate if they understand what fair use is, or how to reason in a particular situation about it.