Scenario:
A faculty member developing an interactive tutorial that she intends to market to K-12 school districts wants to digitize video clips of commercial television programming that she dubbed off-air. She's described her project to the networks that own the rights to the programs from which the clips will be selected, and asked for permission to use specific clips. The networks all refused. After considering these refusals the faculty member decides to go ahead and assert that her uses are fair use. Is fair use available once permission has been denied?

Response:
As a matter of principle, fair use is controversial and reasonable people will, at times, disagree on what constitutes a fair use of copyright protected works. In this case it may well be that the faculty member's planned use could be viewed as a fair use. However, it is important to note the effect that the permission refusal has on any litigation that might result from these differing viewpoints about fair use. When someone asks for permission to use copyrighted work and the copyright owner refuses to give that permission then those who choose to go forward with the projected use, under the provisions of fair use, can be considered willful infringers in any subsequent litigation over the matter. The penalties for willful infringement are much more severe than those for innocent infringement. Anytime you are refused permission for a specific use it is best to consult with the Office of the General Counsel or an attorney before proceeding with that specific use as a fair use.