Monday, June 10, 2013

Copyright Law Fair Use for Instructional Designers

"Fair Use" of copyrighted property is one of the most commonly misunderstood topics in my field. As an Instructional Designer, eLearning Developer, Web Designer, and a business owner who continuously handles information that may be legally owned by others, I have dedicated a substantial amount of time to understanding Copyright Law as it applies to my line of work.


Wikipedia.org (Copyright Law in Wikipedia) defines copyright as a legal concept, enacted by most governments, giving the creator of the original work exclusive rights to it, usually for a limited time. Most commonly, it refers to "the right to copy", but also gives the copyright holder the right to be credited for the work and determine who may adapt the work to other forms. It also defines who may perform the work and benefit financially from it, and other related rights. It is a form of intellectual property (like the patent, the trademark, and the trade secret) applicable to any expressible form of an idea or information that is substantive and discrete.

The US Copyright (US Copyright Web Site) describes copyright law as one of the rights conferred to the owner of a copyright to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the copyright law (Title 17 US Code). One of the more important limitations is the doctrine of "Fair Use."


"Fair Use" is commonly misunderstood concept. The majority of people who work with content, such as the instructional designers, eLearning developers, and other content curators, have very little understanding of the meaning "Fair Use". The following statements come from real conversations during the course of our business activities. Do not be surprised if you have heard some of these before.
  • Fair use allows me to download an image from the web and use it any which way I want, as long as I am not making money by using it.
  • Fair use allows us to use a copyrighted work with the intention to educate others, report the news, or any other activity as long as we include a reference to the copyright owner.
  • I am just going to take a couple of paragraphs from this book – who is going to notice?
  • We do not want any legal trouble so we will include a disclaimer such as, "This blog claims no credit for any video clips or images posted on this site unless otherwise noted. Video and Images on this blog are copyright to its owners. If there is a video or an image displayed on this blog that belongs to you and do not wish for it appear on this site, please E-mail with a link to said image and it will be promptly removed."
  • It is perfectly ok to download an image from the web, modify it with Photoshop, and then it becomes your work of art.
  • There is nothing wrong with using the song "New York, New York" by Frank Sinatra as the background music of our eLearning module. We are not making a profit out of it.


Everyone who made those comments above was wrong. None of the statements above describes the proper application of the "Fair Use" principle. Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. This section also lists four factors to consider in determining if the use is fair, or not. It is not enough to meet just one of these factors.
  1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes.
  2. The nature of the copyrighted work.
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
  4. The effect of the use upon the potential market for, or value of, the copyrighted work.

The distinction between what is a fair use and what is infringement in a particular case will not always be clear or easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission. 


To illustrate this point, I give you a blog article by Roni Lauren, a national best-selling author who had an unwanted encounter with a copyright lawsuit for posting a legally protected photograph (Roni Loren's "You can get sued for using pics on your blog").
  • Everyone who is responsible for gathering, curating, and publishing content (like text, audio, video, photographic images, illustrations, etc.) should have a clear understanding of copyright law. To my fellow instructional designers, eLearning developers, bloggers, web designers, and others, here are a few suggestions to keep you out of trouble:
  • You should be completely certain that the content you are using is either original or properly selected to meet copyright law. You cannot go to the National Geographic web site and use Snag It to start copying (capturing) their copyrighted images so you can use them on your project.
  • If you cannot establish the copyright status, assume it has copyright protection. Many people I have worked with who believe it is the other way around – that if you cannot determine its copyright status then it is fair to assume you can use it – wrong!
  • If you have already used copyrighted content or you have doubts, go back to your publication and remove it immediately. There is a chance you can get away with it but consider that everyday new technologies are available to track copyrighted works and assist in the identification of violators. For example, WriteCheck will help control plagiarism (Anti-Plagiarism Technology) by scanning the web for text duplication.
  • Finally, read about copyright law – we mentioned a government site for copyright law earlier in this article. You should take some time to read it, understand it, and apply it to your daily work or business (US Copyright Web Site)

The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: 
  • Quotation of excerpts in a review or criticism for purposes of illustration or comment.
  • Quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations.
  • Use in a parody of some of the content of the work parodied.
  • Summary of an address or article, with brief quotations, in a news report.
  • Reproduction by a library of a portion of a work to replace part of a damaged copy.
  • Reproduction by a teacher or student of a small part of a work to illustrate a lesson.
  • Reproduction of a work in legislative or judicial proceedings or reports.
  • Incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.

Copyright Law protects the particular way authors have expressed themselves. It does not extend to any ideas, systems, or factual information conveyed in a work. FullMind Design is not offering any legal advice by publishing this article. You should consult a specialized copyright law attorney to consult about your specific case if you have one. As always, feel free to connect with us by leaving your respectful comments and sharing this article with others.