The Teacher’s Guide to Intellectual

Property: A Webinar on Fair Use in the Classroom

DISCLAIMERThis webinar is for educational and informational purposes only. Constitutional Rights Foundation, Street Law, Inc., and the United States Patent and Trademark Office (“presenters”) make no representation or warranty as to the accuracy, completeness, or suitability of the information in this webinar to any issue or concern you may have. The presenters are not liable for any claims, losses, or damages based upon use of the content of the webinar. You should not rely on the content of this webinar, in whole or in part, as legal advice for any issue. Instead, the presenters encourage you to consult your own school or district policy on intellectual property or with an attorney specializing in intellectual property law for any specific issues or concerns you may have.

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What Is Intellectual Property?

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Intellectual Property refers to creations of the mind: Inventions, literary and artistic works, confidential information, and symbols, names, images, and designs used in commerce. IP includes patents, trademarks, trade secrets, and copyrights.

Copyright Copyright provides legal protection for

written or other tangible works. When a work is copyrighted the owner has exclusive control over what can be done with the work. This means that it cannot be copied or used by another person without permission.

Examples include: books, websites, logos, artwork, commercials, sculptural works, photographs,

drawings, graphic designs, etc.

Copyright Infringement

Penalties for copyright infringement:

1. Infringer pays the actual dollar amount of damages and profits (including court and attorney fees.)

2. Infringer pays a set amount determined by law (from $200 to $150,000 for each work infringed.)

3. The court can issue an order to stop the infringing acts.

4. The court can take the illegal works.

5. The infringer can go to jail.

Occurs when copyrighted material is used without the owner’s permission.

A Major Exception to Copyright Protection Is…

Fair use permits the limited use of copyrighted material without requiring permission from the rights holders.

Commentators, critics, news reporters, researchers, teachers, and scholars frequently rely on fair use to use copyrighted material.

Fair UseFair Use

For Example…Let’s say that someone is reviewing a movie on a blog. The reviewer may use a short clip from the movie to comment on it. This is fair use of the copyrighted movie.

The fair use exception has the same purpose as the copyright law:

To promote knowledge and creativity

The courts have long recognized the fair use exception. Congress wrote it into the 1976 Copyright Act.

Determine If Fair Use Applies

Fair Use Case Study…

Monster’s Communications

v.

Turner Broadcasting

Fair Use Case Study…

The plaintiff, Monster Communications, was the producer of a movie about the 1974 heavyweight title fight between Muhammad Ali and George Foreman called When We Were Kings (84minutes).

The defendant, Turner Broadcasting, was the maker of a television documentary about Ali’s life called Muhammad Ali—The Whole Story (94 minutes). The documentary contained approximately 10 short film clips of actual historic events (about 2.1% of the film) that also appeared in the plaintiff’s movie. The clips ranged from 41 seconds long to two minutes long.

The defendant did not get permission to use the clips from the plaintiff. The plaintiff sued the defendant for copyright infringement.

www.educateIP.org

YES

NO

Is Fair Use a Good Defense

in This Case?

Court’s Decision in Monster Communications, Inc. v. Turner

Broadcasting, 935 F.Supp. 490 (SDNY 1996)

The court held that the use of the film clips was fair use. Overall the court focused on the fact that only a very small portion of the plaintiff’s movie was taken and the purpose of doing so was largely informational.

Educational use is one of

the prime examples of

legitimate fair use.

Fair use allows limited

use of:

Short printed material Pre-recorded music

Archived printed material Video

Illustrations/Photographs Television

Integrated video Computer softwareInternet digital images, sound, & video files

Fair Use in Schools

Hypo #1Hypo #1

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A teacher photocopies a dozen essays and articles and binds them together in a packet for

her students.

Is this fair use?

Use of Short Printed Materials…

Teachers may make multiple copies for classroom use and incorporate into multimedia for teaching classes.

Students may incorporate text into multimedia projects.

Copies may only be made from legally acquired originals and must be at the

inspiration of an individual teacher

Short printed material

Poem less than 250 words; 250-word excerpt of poem greater than 250 words

Articles, stories, or essays less than 2,500 words

Excerpt from a longer work (10 percent of work or 1,000 words, whichever is less)

One chart, picture, diagram, or cartoon per book or per periodical issue

Two pages (maximum) from an illustrated work less than 2,500 words, e.g., a children’s book

Fair use of printed matter:

Hypo #2Hypo #2

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A student downloads ten photos from Google Images and pastes them into a class

project.

Is this fair use?

Illustrations and Photographs

OK to use single works in their entirety (but no more than five copies per one artist.)

If a collection, no more than 15 images or 10% (whichever is less) of the entire collection can be used.

Some images are in the public domain and can be used freely.

Research copyright ownership:

www.loc.gov or www.mpa.org.

Notes About Downloading From the

Internet… When teachers or students download digital images,

sound, and video files from the Internet, make sure the material:

Is solely for student projects or teacher lessons

Follows portion restrictions

Has been legitimately acquired by the web site (e.g., you may not download infringing material from YouTube)

Is not reposted on the Internet (without permission)

Hypo #3Hypo #3

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A teacher rents the movie Dances With Wolves and

shows it in class during a unit on westward expansion in the

19th century.

Is this fair use?

Video Materials OK to view rented or purchased DVDs in the classroom if they are acquired legally and the purpose is educational, not entertainment.

Integrated video (e.g., QuickTime videos, Internet video clips)

Students may use portions of copyrighted works in their academic multimedia (must be properly credited and obtained lawfully).

No more than 10 percent or three minutes (whichever is less) of “motion media.”

Hypo #4Hypo #4

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A teacher uses a 30-second portion of a track on a classical

music CD as background music to a multimedia

presentation.

Is this fair use?

Pre-recorded music (multimedia or

video projects) This might include records, cassette tapes, CDs, or audio clips on the web.

Students/teachers may use up to 10 percent (no more than 30 sec.) of a copyrighted musical composition to be reproduced, performed, and displayed as part of a multimedia project.

No more than 10 percent or three minutes (whichever is less) of “motion media.”

Hypo #5Hypo #5

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A librarian uses a licensed version of PowerPoint at

home, but copies it onto his classroom computer to let

students develop class projects.

Is this fair use?

Computer Software

Software must be either purchased or licensed prior to its use.

The number of simultaneous users must not exceed the number of licenses, and the number of machines being used must never exceed the number licensed.

Hypo #6Hypo #6

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A student uses a 30-second clip of a cable television show

in a class presentation.

Is this fair use?

Television Programming and the Classroom

Broadcasts of TV or recordings made from broadcasts may be used for instruction.

But…schools only have a minimum right to retain the broadcast (10 school days). Certain rights holders, such as PBS’s Reading Rainbow, allow for longer retention.

Cable channel programs may only be used with permission and are not covered by the

same guidelines as TV broadcasts.

Educate IP Website

www.educateIP.org

Q & A With Attorney Experts

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This project is a collaborative effort of Street Law, Inc., and Constitutional Rights Foundation.

Educating to Protect Intellectual Property (ePIP) is funded by grant 2009-BE-BX-0001 from the United States Patent & Trademark Office and

supported by the United States Department of Justice.

Sources

Technology & Learning: Copyright and Fair Use Guidelines for Teachers (Chart), which is based on the following sources: U.S. Copyright Office Circular 21; Sections 107, 108, and 110 of the Copyright Act (1976) and subsequent amendments, including the Digital Millennium Copyright Act; Fair Use Guidelines for Educational Multimedia; cable systems (and their associations); and Copyright Policy and Guidelines for California’s School Districts, California Department of Education.

http://www.techlearning.com/techlearning/pdf/db_area/archives/TL/2002/10/copyright_chart.pdf