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It's the ability and exception to Copyright Law that allows you to use some copyrighted material WITHOUT the copyright holder's permission.

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Some copyrighted material can be used for educational and teaching purposes based on the 4 Guiding Principles.

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Use the 4 guiding principles to decide if how you are using copyrighted material falls under Fair Use.

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Only use as much of the copyrighted material that is necessary to achieve your educational goal.

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Your intended use must be different from the author's intent. This is known as transformative use.

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For example, you could quote lines from a novel for a paper you are writing to analyze literary elements. You could NOT use those same lines to place in your own novel.

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Also, using someone else's educational content would NOT be fair use because your intent is the same...so be careful copying and then posting others' lesson plans that you find online.

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When using copyrighted materials for educational purposes you should only use as much is as needed to teach your content.

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Using a sample of a literary work for instructional purposes would be an example of Fair Use.

Using the quoting entire work or using the "heart of the work" would not be Fair Use.

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Kimmons, R. (2020). Copyright and open licensing - the k-12 educational technology handbook. Edtechbooks.Org. https://edtechbooks.org/k12handbook/copyright

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Ask yourself, Is the way I am using this going to prevent the author of the material from selling their work?

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The information you are using must be informative and for educational use.

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Copyright basics for teachers. (2016, May 11). [Video]. YouTube. https://www.youtube.com/watch?v=-9H6Ksp36q0

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Quoting a line or two from an article to show an example of a educational concept would be an example of Fair Use.

Making copies of a magazine article for students to read would be an example of not using material within the guidelines of Fair Use.

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Creativity, copyright, and fair use. (2020, September 4). [Video]. YouTube. https://www.youtube.com/watch?v=xvZHNwBHirQ

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https://copyright.gov/fair-use/fair-index.html

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U.S. Supreme Court First Circuit Second Circuit Third Circuit

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https://arstechnica.com/tech-policy/2017/08/youtuber-court-battle-results-in-fair-use-win-for-online-reaction-videos/

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After more than a year of battling in court, Ethan and Hila Klein, the YouTubers behind the H3H3 Productions channel, won a lawsuit filed against them by another YouTuber. Matt "Hoss" Hosseinzadeh-MattHossZone on YouTube-sued the pair after they uploaded a video in which the Kleins react to one of Hosseinzadeh's videos and criticize him in the process. Hosseinzadeh then sued the Kleins for a number of things, most notably copyright infringement for using clips of his video in their own.

The Kleins defended their video, stating the use of clips of Hosseinzadeh's video in theirs falls under fair use. New York Judge Katherine B. Forrest agreed and issued her ruling yesterday in favor of the Kleins, stating their video provides "critical commentary" on Hosseinzadeh's video and is not a substitute for it.

"Any review of the Klein video leaves no doubt that it constitutes critical commentary of the Hoss video," Forrest's decision reads. "There is also no doubt that the Klein video is decidedly not a market substitute for the Hoss video. For these and the other reasons set forth below, defendants' use of clips from the Hoss video constitutes fair use as a matter of law."

Hosseinzadeh sued the Kleins for misrepresentation and defamation as well, and the court ruled in favor of the Kleins in both of those claims. In April 2016, Hosseinzadeh submitted a DMCA takedown notification to YouTube for the Klein's video, and YouTube obliged by removing the video from its site that same day. The Kleins then filed a DMCA counter notification citing fair use, which Hosseinzadeh said was a case of misrepresentation. Due to the copyright ruling in the Kleins' favor, the misrepresentation claims were dismissed. The court also dismissed Hosseinzadeh's allegations of defamation, stating the Kleins' video is "replete with 'non-actionable opinion(s).'"

When the Kleins first revealed they were being sued, they saw an outpouring of support from fellow YouTubers and the YouTube community. YouTuber Philip DeFranco started a GoFundMe account to help pay for the Kleins' legal fees, and it raised more than $170,000. The Kleins posted a video last night explaining the ruling and expressing their happiness that fair use prevailed on YouTube.

Reaction videos aren't created equal

But it's important to note that the victory doesn't apply to all types of "reaction" videos. The court's ruling essentially places reaction videos into two categories: those that edit-in clips of copyrighted content with clips of individuals reacting, commenting, and providing criticism and those that look like "viewing sessions" with no commentary.

"The Klein video is arguably part of a large genre of YouTube videos commonly known as 'reaction videos,'" the ruling says. "Videos within this genre vary widely in terms of purpose, structure, and the extent to which they rely on potentially copyrighted material. Some reaction videos, like the Klein video, intersperse short segments of another's work with criticism and commentary, while others are more akin to a group viewing session without commentary. Accordingly, the Court is not ruling here that all 'reaction videos' constitute fair use."

In their explanation video, Ethan Klein calls this a "great distinction," as it protects channels like H3H3 Productions and similar channels like React, from The Fine Brothers, who post reaction videos featuring copyrighted material and commentary from multiple people. Videos that simply show a group of people watching the same video, with laughs or emotional interjections throughout, may not fall under fair use. Reaction videos are incredibly popular and have been for many years, but the quality of each video varies. Even if this decision only came out of one court, the District Court for the Southern District of New York, it's being seen as a win for YouTubers and online creators who want to use copyrighted material in transformative ways in their own content.
Listing image by YouTube, H3H3 Productions

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Reaction video deemed fair use in YouTuber court battle

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After more than a year of battling in court, Ethan and Hila Klein, the YouTubers behind the H3H3 Productions channel, won a lawsuit filed against them by another YouTuber. Matt "Hoss" Hosseinzadeh-MattHossZone on YouTube-sued the pair after they uploaded a video in which the Kleins react to one of Hosseinzadeh's videos and criticize him in the process.

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https://www.edutopia.org/article/teachers-guide-copyright-and-fair-use

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There are rules when it comes to using copyrighted material in the classroom-and easy ways to make sure you're always in the clear.

Michael Morgenstern / The iSpot

While some school districts have resources and policies to help teachers navigate the tricky waters of copyright and fair use, many teachers are under the impression that because they're educators, they have blanket protections.

But copyright and fair use laws are nuanced, and just because you're a teacher doesn't mean you're always in the safe zone. They're also not a nicety: In rare cases, school districts have been fined for violating copyright, so paying attention to the details of fair use and copyright can protect you and the school district. Educating yourself on the substance of the issue is also important because as a teacher you model proper use for your students so that they can protect themselves, too.

Copyright and fair use law has become a topic of concern as technology has increasingly lowered the barriers to sharing, copying, and creating at any time, making us all potential publishers and distributors of content. It's become a lot easier to break the rules. Particularly in the digital age, copyright is about collective responsibility and protection-and digital citizenship.

WHAT'S PROTECTED AND WHAT'S NOT

American copyright law originates in the U.S. Constitution and automatically protects all original, creative work in a fixed form; the moment a work is created, it is protected. Generally speaking, works created after January 1, 1978, are covered by copyright for a term equaling the life of the author plus 70 years after their death. The original works by Shakespeare, Dickens, Frederick Douglass, and just recently F. Scott Fitzgerald's The Great Gatsby and Alain LeRoy Locke's The New Negro: An Interpretation, for example, are in the public domain and are no longer protected by copyright. In addition, copyright doesn't apply to facts and public information, print maps, or government documents or pictures, so images and text from sources like NASA, the Smithsonian, and the National Archives can be used without permission.

The copyright for works that are not part of these exceptions is invisible and active at all times, of course, so it can be helpful to think about it like this: In most contexts, works created by others have a "No trespassing" sign on them. If you simply ignored a "No trespassing" sign on land, you'd be in violation of the law, right? Same thing with creative works, whether it's a doodle or the selfies you took with a friend's phone.

Within the context of educational and classroom settings (including online classes), copyright is a little more nuanced. There, even copyrighted material can be used if it's for face-to-face, instructional purposes and the educational institution is a nonprofit.

Teachers and most schools are therefore protected fairly broadly, allowing them to make use of films and articles from sources like the New York Times or Scientific American, as long as they do so in the context of instruction. Sharing a link to a recent Washington Post article in your learning management system, or to a video from PBS or CNN, is permissible if it's for the purposes of instruction and the educational institution is a nonprofit. Copying and distributing works created by others, however-for example, printing out whole articles and distributing them to your class-is generally riskier. In such cases, copyright law is more lenient when the copied material is not copied in whole or is not distributed to the whole class.

Be careful, as well, with any so-called creative works that you use in the classroom, like books, poems, movies, or songs. Generally speaking, even if you're using them for instructional purposes, these types of creative work are protected. In most cases, school systems purchase copies of those assets-or the students themselves are asked to purchase them-which gives everyone rights to consume them. Meanwhile, if you're using anything in this category for purposes that are not instructional, like showing a Pixar movie as a reward or during recess on a rainy day-without any instruction-then you're clearly infringing on copyright.

MAKING SENSE OF FAIR USE

To add to the confusion, there's the fair use doctrine, which is designed to promote freedom of expression (which is critical in educational settings) by permitting "the unlicensed use of copyright-protected works under certain circumstances"-a sort of legal counterbalance to copyright that allows for creativity. If there is a dispute about copyright, then judges use four factors to determine if something is protected by fair use.

Generally speaking, courts factor in the purpose of the use (did you use it for instructional purposes, for example); the nature of the original (was it fiction or more factual, for example); the amount of the work used (using all of the work, or especially important parts of the work is risky); and the value of the work (if your actions materially impact the ability of the artist to make a living, that infringes on copyright).

An important caveat: Use of content in the service of satire is OK, so if you're using or creating memes as part of your lesson plan, you're in the clear.

QUICK TIPS TO PROTECT YOURSELF

Given how nuanced copyright and fair use are and the complexities of digital use and sharing, these tips can help keep you in the safe zone.

Limit your exposure: Use a password-protected space like Google Classroom or any learning management system (LMS) to share published materials with your students, instead of using your class webpage. That way, you're sharing to the students in your class only.

Use Google's Tools setting: After a search for an image has produced results, click Tools/Usage Rights/Creative Commons license to filter images.

Use Project Gutenberg: It's a library of over 60,000 free e-books (and counting) for which copyright has expired. You can read them in a browser or on Kindle, or opt to download them. All of Shakespeare's work is there, for example, in addition to Narrative of the Life of Frederick Douglass, an American Slave, and works of many other authors.

Bookmark Creative Commons sites: The emergence of the internet spawned an innovation in copyright management called Creative Commons, which allows the creators of photos, videos, and text to apply transparent copyright rules and make the content available broadly. The Creative Commons search tool is invaluable for finding content you can use legally. Also bookmark sites that collect images, videos, or text that is shared under liberal Creative Commons rules-like Flickr, Pixabay (images, videos, and music), and Unsplash (photos); Noun Project (icons and photos); and Bensound, which has a library of free audio files-in addition to higher-quality files you need to purchase. Share the bookmarks with your students.

Don't forget Wikipedia: It's the grandfather of Creative Commons sites. You can copy or alter the text of this comprehensive resource, updated by volunteers who are often experts, if you include the backlink. Students should be warned, of course, that Wikipedia is subject to hacks (both malicious and comical), and the information should be verified with other sources.

Make use of free audiobooks: Multiple sites like Librivox and Spotify share free audiobooks. Titles on Spotify range from George Orwell's Animal Farm to Hans Christian Anderson's The Fir Tree.

Know that there isn't an urgency exemption: No matter how desperate the situation or noble your intentions, don't make and distribute copies of entire books, workbooks, study guides, practice books, or even an entire page from a textbook. Purchase enough copies for each student, or obtain permission from the owner to make copies.

Avoid copying and distributing "creative material": Novels, plays, movies, and poems are far more likely to be exempt from fair use.

Use published sources: Never copy and distribute unpublished material.

When in doubt, reach out: If a publication or resource you need is out of print and you cannot buy it (e.g., an out-of-print book), reach out to the publishing company and ask permission to make copies.

Plan ahead: Don't wait until the last minute and use something in haste.

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A Teacher's Guide to Copyright and Fair Use

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There are rules when it comes to using copyrighted material in the classroom-and easy ways to make sure you're always in the clear.