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Getting Meta(ish) with Fair Use in Online Course Material

I’ve shared previously that as an Instructional Designer, I am passionate about helping my peeps. I strive to provide accurate information and advice, and if I don’t know the answer, I’ll find it. That is why I get so caught up when I get the “Is it ok if I?” questions related to copyright in online course materials.

Specifically, I get asked if its it is “ok” to use images from the internet in presentation slides or screencasts. Typically, I advise that it’s fine as long as they are using the images to illustrate a point, and that they hyperlink and cite to the original source as to not look like they are passing as their own. If they are too worried about it, I advise creative commons materials, and to put it behind Blackboard (is usually the case anyway).

Most cases are actually solved by showing instructors how to embed video and images from other places on the internet. Its amazing what a breakthrough that is to some, to realize that is much more appropriate, and easier, than downloading a hard copy and re-uploading to your material.

But what about posting the slides or presentation in a public website like a WordPress site? Or places like Slideshare? Is that okay, too, even though the audience is potentially infinite, and not just your students or classmates? I want to give sound advice on these matters, so that is what I am exploring here.

I’m going meta by posting slides that use copyrighted media, about posting slides that use copyrighted media, on a public website, under fair use.

Like all good educators that post about fair use, let me add a red italic disclaimer about how I am not a lawyer and this is not legal advice.

I found this Fair Use checklist from Central Michigan University handy when when I looked through the many available online resources to decide if my use is fair.

Another resource I appreciated was the CMSI Fair Use for Visual Arts article presentation of the fair use factors collapsed into two questions:

  • Did the use “transform” the copyrighted material by using it for a purpose significantly different from that of the original, or did it do no more than provide consumers with a “substitute” for the original?
  • Was the material taken appropriate in kind and amount, considering the nature of both the copyrighted work and the use?

Four factors of fair use for my slides

In some cases, I pose additional questions that I am still unsure, or that have come up from others.

I. What is the purpose of the use?

My slides and media favor fair use because it is for:

  • Educational use
    • I am a student in this class, or an instructor in a class, specifically, I made this website for class
  • Not-for-profit use
    • If my page was full of banner ads, how would that weigh in? If I am profiting, or the web 2.0 site it’s posted on makes profit from ads, am I still ok on this one?
  • Transformative use
    • I have taken the works out of original context and inserted as illustrations to points in each slide.
  • Parody

    • In some cases, I may or may not continue to poke (far more tame than others’) fun at Metallica.

II. What is the nature of the copyrighted work?

Favors fair use

  • Published work

Does not favor fair use

  • Creative or artistic content
    • Since the image or music is art, am I not meeting this piece? The art is all published.

III. What is the amount or substantiality of the item used?

Favors fair use

I think this is all pretty straight forward, as I’m not ripping entirety of the song of video, just enough to get my point across.

  • Small quantity being used
  • Portion is not ‘heart of the work’
  • Amount used is appropriate for educational purposes

IV. What effect will the use have on the potential market for the work?

Favors fair use

  • No significant effect on market or potential market for the work

Does not favor fair use

  • Made publicly available or access unrestricted
    • This is the biggest question when it comes to publishing in an open online space and not behind an LMS. Should this one piece of this one factor outweigh all of the benefits of my fair use?

There does not seem to be a formula that concludes how many pieces of the factors you have to pass or fail. In many ways, I think fair use is an area that “depends”.

I have concluded I’m fair in my use today. Do you think this is sound advice? Or does it make you as nervous as it does me to pass along a blanket answer?

Published inIntellectual Property

4 Comments

  1. elisha elisha

    I like the way that you used the fair use assignment to create your own example of what fair use is and how it should be used. I still find it overwhelming and hard to distinguish what is too much and at what point it turns into illegal copyright. It is not so black and white as it may seem.

  2. Sarah –
    This is a good, solid proposal of fair use. What you made me think about is if one uses the previous publishing of a work as a defense, how does one check that the previous publishing doesn’t carry copyright violations. wah!
    Dan

    • Sarah Sarah

      Right, Dan?! I was also running into searching for images that were on websites I am sure are clip art, perhaps purchased, or I’m sure they used it from another source. So I just attribute or reference where I got it if I can see a link back to something else.

  3. Curtis Rogers Curtis Rogers

    I like the way you explained and illustrated fair use and brought a personal context to it. I have used lots of materials from the internet in my research and thesis presentation. I ALWAYS atributed and linked to the source. I always thought that would be plenty of protection. Maybe not.

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