You generally need to obtain a license (i.e., explicit written permission) to use a third party's copyrighted material. There are three major exceptions to this rule: (1) the face-to-face instruction exception, (2) the online instruction exception (also known as the TEACH Act), and (3) the fair use exception. These exceptions are defenses against a claim of copyright infringement. Exceptions act like an umbrella, under which your use of the copyrighted work is protected. In other words, you will be able to use the copyrighted material without the owner or licensor's permission, but only under certain circumstances.
Before considering reliance upon any of these defenses, we recommend first considering the following safe alternatives:
- Public Domain / Open Access - Is your asset in the public domain or is it made available via open licensing terms? Creative works which were first published prior to 1924 are usually considered part of the public domain and are free to use.
- Licensing - Have you inquired to see if the UNT Libraries have a license to the asset, or have you attempted to purchase a copy of the work or a license for its use on your own?
- Alternatives - Have you explored our Usable Works page to search some of the web sites listed there (like Pixabay.com) for comparable assets that are unrestricted in their use?
Once you have fully exhausted all the above options, then the next step is to explore the first two exceptions. These are listed below. Only as a last resort should the fair use exception be relied upon. Fair use is detailed last on this web page.
17 U.S.C. § 110(1) - Face-to-Face Instruction Exception
Section 110(1) permits the performance or display of legally licensed/purchased works, for strictly and directly pedagogical purposes relevant to the course, in face-to-face classes at nonprofit, accredited schools. Such works include the showing of a film, playing music, performing a play, projecting images, and other types of performances and displays of copyrighted works in the classroom, as long as the work was lawfully acquired.
17 U.S.C. § 110(2) - Online/Distance Instruction Exception
Section 110(2), also known as the "TEACH Act," permits uses of copyrighted works in online classes, but only under certain circumstances. To determine if your intended use would qualify, please refer to the TEACH Act Compliance Checklist (PDF).
One of the requirements of the TEACH Act is the inclusion of a copyright notice/statement to users of your content. To meet this need we have an example copyright statement, which we recommend appears in every online course.
17 U.S. Code § 107 - Fair Use Exception
According to the U.S. Court of Appeals, Second Circuit, "the issue of fair use . . . is the most troublesome in the whole law of copyright."1 Which is why we recommend to instructors to only rely upon the fair use exception defense as a last resort. The fact that UNT is a non-profit, accredited, state university does not, in any way, grant it blanket protection under the fair use exception.2 Fair use doctrine tries to ensure a balance of the rights of copyright owners and the public interest in freedom of speech but does not provide simple or straight-forward rules to determine whether a use qualifies as fair.3 Instead, we must make "a qualitative assessment" of each of the four factors elaborated below," must be made an applied to your intended use of a copyrighted work.4 Your factorial analysis must be "combined without 'a mathematical formula at any step,'" and must consider the factors "holistically 'in the purposes of copyright.'"5
Factors to Consider for Fair Use
Purpose and character of your use
This purpose includes whether your intended use is directly pedagogical, or for adornment or other ancillary purposes. If the intended use is directly pedagogical, it favors fair use. In other words, "factor one favors fair use where . . . use is for a nonprofit educational purpose by a nonprofit educational institution, even though
. . . use is nontransformative and it serves the same overall function as the original copyrighted work."6 If it is for any other purpose, it strongly opposes fair use. Also, the 'purpose' is contextual, so the setting of a nonprofit, accredited educational institution is a factor favoring fair use. The scale tips further, for this factor, in favor of fair use when access is restricted to your students and terminates with the end of the semester. Please note: meeting this single condition is NOT adequate by itself.
Also at issue is the character of your use, which looks to whether you're using the works to create something new or copying it exactly. Have you transformed its meaning or purpose, or have you added value to and repurposed the work for a new audience? If you have, this also tips the balance in your favor.
Nature of the copyrighted work
Works that are published, factual, nonfiction, or newsworthy weigh in favor of fair use. If works are unpublished, fictional, highly creative, or a consumable (e.g., a workbook), then this weighs against a finding of fair use.
Please make exact calculations for each third-party asset (e.g., text, images, video, and audio) you wish to use in your online course. If you are not mathematically inclined, a simple solution we like to use is the Percentage Calculator web site here. The middle box provides a way to quickly calculate a percentage based upon two numbers. Type the number of excerpted pages/minutes in the first box and the total page/minute count for the work in the second box. Then, using the resulting percentage, look to the following tiers for guidance:
- 0% to 5% - This amount is generally safe, but be sure your excerpt is not its own self-contained work. For example, you never want to copy and publish an entire short story from a collection of short stories. Even if the percentage of the overall work is small, it could potentially not be protected by one of the copyright exceptions.
- 5% to 10% - Conduct a complete fair use analysis, and email the details of your intended use to the CLEAR Compliance Coordinator here.
- Over 10% - This amount would likely be considered infringement and expose both the professor and UNT to legal liability.
Please Note: Copying entire chapters of a book would likely result in copyright infringment. Courts are inclined to consider only excerpts of a chapter as fair use.7
Effect of the use on the potential market
A use is more likely to be fair if it doesn't harm the potential market for the copyrighted work or the value of the work to the copyright holder. If it does, this could weigh against fair use. "The main question under the fourth factor is not whether" use of works would cause the copyright owner "to lose some potential revenue. Rather it is 'whether . . . use--taking into account the damage that might occur if `everybody did it` would cause substantial economic harm such that allowing it would frustrate the purposes of copyright."8
"The fourth factor looms large in the overall fair use analysis"9 Meaning, courts consider this factor to carry the most weight in the overall analysis because, in a fair use analysis, the three preceding factors all implicate this final one.
- Research in-depth information on this topic from other sources in Resources
- See our List of Usable Works
1 - Dellar v. Samuel Goldwyn, Inc., 104 F.2d 661, 662 (2d Cir. 1939).
2 - "[T]he commercial and non-profit character of an activity, while not conclusive with respect to fair use, can and should be weighed along with other factors in fair use decisions." Triangle Publications, Inc. v. Knight-Ridder Newspapers, Inc., 626 F.2d 1171, 1175 (5th Cir. 1980).
3 - United States v. Elcom Ltd., 203 F.Supp.2d 1111, 1121 (N.D.Cali. 2002) ("There is no bright line test for determining whether any particular use is a 'fair use' or is instead an act of copyright infringement, and each use requires a case-by-case determination").
4 - Cambridge IV, 906 F.3d 1290, 1300 (11th Cir. 2018).
5 - Cambridge IV, 906 F.3d 1290, 1301 (11th Cir. 2018).
6 - Cambridge II, 769 F.3d 1232, 1267 (11th Cir. 2014).
7 - Cambridge V, Civil Action 1:08-CV-1425-ODE (N.D. GA 2020) (“Use of a whole chapter--and even more so use of two chapters--represents a greater taking of value than merely part of a chapter”).
8 - Cambridge II, 769 F.3d 1232, 1275 (11th Cir. 2014).
9 - Cambridge II, 769 F.3d 1232, 1276 (11th Cir. 2014).