Scenario:
An instructor would like to take digital photographs of paintings, sculptures, or architectural works and share them with her class.

Response:
Works of art and architecture that are not in the public domain may still be available to copy in the form of a photographic image. Photographic reproductions are generally lower-quality and would not likely compete in the same market as the original (if they do, as might be the case with reproducing photographs or digital images, use would likely not be permitted). When deciding if and how to use photographic reproductions of works of art, you should conduct a four-factor fair use analysis for each reproduction.

Also, remember that peoples' faces may not appear in photographs that will be publicly displayed without a signed release. The University's Office of the General Counsel maintains an online Standard Contracts Library, which offers the standard form, Release Photographic Likeness Use. If this form is not what you're looking for, feel free to contact the Office of the General Counsel directly.

Scenario:
An instructor finds an article in a professional journal that will be helpful to her in future research projects. She would like to make a copy of the journal article for her personal files.

Response:
Making a personal copy of a copyrighted work for research and reference is a fair use.

Scenario:
An instructor wants to include photographs or music in a PowerPoint presentation for his class lecture. Does he need to seek permission from the copyright owners to do so? What if he wants to make changes to the photograph or music file?

Response:
Because the use occurs in the face-to-face classroom, the instructor does not need to seek permission to use the copyrighted photographs and music files. Displaying or performing copyrighted works for classroom purposes is allowed under section 110 of U.S. Copyright Law.

In addition, changes made to enhance his instructional purpose, e.g. commentary, criticism, even parody, are activities allowed under the fair use provision.

Scenario:
An instructor would like to place several articles and book chapters on reserve at the Library for students to access electronically. Access will be limited to only those students enrolled in the class.

Response:
Traditionally libraries have provided short term, limited access to materials selected by instructors. Electronic reserve systems exploit new technologies that enhance reserve service and deliver 24/7 remote access to authorized, registered students. Applying the fair use provision of copyright law is critical in library electronic reserve services.

Instructors submitting materials to be posted on the Library's eReserve system are responsible for evaluating, on a case-by-case basis, whether the use of each copyrighted work requires permission or qualifies as fair use. When permissions are needed, instructors or their departments can contact the Copyright Permissions Center for assistance.

Scenario:
An instructor would like to compile articles from journals, chapters from textbooks, and various other sources and create a coursepack of readings that students will purchase at the bookstore. Where can she go to find more information about how copyright applies when creating coursepacks?

Response:
The University of Minnesota's Copyright Permissions Center can provide assistance with getting permissions to use copyrighted works in coursepacks that are purchased by students.

Scenario:
A faculty member wrote and published an article in a journal last year. Since she authored the article, does she have the right to make and distribute copies?

Response:
It depends. Authors, at the point of a work's creation, hold the exclusive rights given to copyright owners to reproduce and distribute the work (see Copyright Ownership). However, in the pre-publication process, many authors transfer all or part of their copyright of a manuscript to the publisher, who may request or require the exclusive rights to publish and distribute the work. When these rights are transferred to the publisher, then the author may only copy and distribute the work with permission from the publisher, or after a determination that fair use, a limited exception to the copyright holder's rights, would apply.

In this case, it is important to review and negotiate publication agreements. Publishers of scholarly and academic journals will each have their own default policies regarding author rights. The SHERPA Project in the UK maintains a searchable database of publisher copyright policies from more than 100 academic publishers throughout the world.

For authors entering into publication agreements, Kenneth D. Crews' "Reserving Rights of Use in Works Submitted for Publication: Negotiating Publishing Agreements" is highly recommended.

Scenario

A faculty member records a segment of the evening news on her home VCR and the next day shows the recording to her class. Afterward she selects a 2 minute clip from the segment to burn onto DVD for future classroom presentations.

Response

Off-air videorecording is subject to the same copyright considerations that any other media used in classroom instruction would be. News broadcasts are copyrighted, usually by the producing network. Before using home recordings in a classroom presentation instructors should conduct a thorough four factor analyis to determine if fair use might apply to the circumstances.

In this particular instance the faculty member may find that her initial use of the recording is a fair use. But any subsequent use, even the short 2 minute clip, would require another four factor analysis. Circumstances surrounding any use can change over time. For example, the network may later make the segment available commercially, on DVD. This condition could compel the faculty member to purchase the DVD from the network rather than rely on her homemade DVD copy for instructional use. In general anolog to digital conversions are not permitted when content is commercially available in digital formats.

Scenario

A faculty member's departmental library holds several older VHS videocassettes that are used regularly for classroom presentations. The videos are no longer available commercially in either VHS or DVD formats. The faculty member wants to create a compilation of clips by converting segments of the VHS tapes to digital form, and then burning the clips onto DVD for use in classroom lectures.

Response

When audiovisual media is commercially available in digital formats converting an analog versions to digital format is not good practice. To take advantage of the fair use provision in copyright law users are expected to acquire authorized copies, i.e. commercially distributed copies, to use in any follow-on work.

The fact that a video is out-of-print and no longer distributed commercially isn't, alone, sufficient reason to assume copying or converting is permissible. It is an element of the market effect of a use to consider, in a thorough four factor analyis of fair use. In this case creating the clip compilation may be fair use but because fair use is determined on an individual case basis it is necessay to analyze the use of each clip from the four-factor pespective.

Note: Fair use, as a matter of general principle, is medium neutral. In this scenario the fact that the copying involves format conversion effects only one factor, market effect. The purpose for the copying, the nature of the orginal clips, and the size of the clips to be copied remain important to the overall balance of a four factor analysis.

Scenario

An instructor copies the papers submitted by the students in her class and brings them to the Libraries to place on reserve. Does the instructor need permission from each student to copy their paper and share it with others?

Response

The students' papers are copyrighted and each of the students will own the copyright to their papers. The instructor will need permission from each student to copy the papers. She should get the permissions before bringing the papers to the Libraries.

If an instructor gets permission to copy a student authored work for use in Libraries reserves, she would need new permission to use the work again during any subsequent academic term.

Please note: Certain uses of student work may require compliance with the Regents Policy on Student Records and the Family Educational Rights Privacy Act (FERPA).

Scenario:

A researcher would like to use excerpts from an unpublished work in an article. He intends to publish the article in an edited collection of critical essays.

Response:

Even though the work is unpublished, it is still copyrighted. Copyright is assigned to all original works of authorship, including letters, as soon as they are "fixed in a tangible medium of expression." Therefore, the researcher should consider whether or not his use falls within fair use. A four-factor fair use analysis will need to be conducted for each work, considering how much of the work will be used and what the potential market effects may be.

Scenario:
A faculty researcher is writing an article on the influence of Bob Dylan on American pop music to be published in an academic journal. In this article, she quotes lines from several of his songs. Is this a fair use of the song lyrics, or does she need to seek permission to use the material?

Response:
Reproducing portions of a copyrighted work for the purposes of comment and criticism are often allowed under fair use. A four-factor fair use analysis will need to be conducted for each excerpt from each song used in the article. Factors such as length of the excerpt should be considered; using shorter segments that include only the lines necessary for the purpose of the article will lead to a more favorable fair use determination.

Scenario:
Who owns the teaching materials an instructor has created when teaching a class at the University of Minnesota?

Response:
The University of Minnesota Regents Policy on Intellectual Property states that "[a] regular academic work product is owned by the creator and not the University." Course materials are usually "regular academic work products" if they have been created by an instructor in the course of her traditional teaching activities. If, however, the work is established in a written agreement to be a "specially commissioned work," the University may retain copyright ownership. For more information on ownership of your original works of authorship, see Owning Your Copyright.

Scenario:
A research group at the University wishes to create a database of full-text research articles. The articles would be drawn from the University library's electronic journal collection, and hard copy print collection whenever e-versions of relevant articles are not available. Since this is for research purposes, is there any problem in doing this?

Response:
Copyrighted journal articles available through licensed electronic resources are subject to the terms of the license agreement between the library and the journal publishers. To understand some of the limitations and restrictions that may be contained in license agreements University users should familiarize themselves with general terms of license agreements. Often these agreements will not allow downloading of content and reposting it to another server. So, creating persistent links to articles, or to the library's licensed source and storing those links in the database would be the way for a study group to proceed.

Scanning hard copy of journal articles for inclusion in the database would be a matter involving either getting permission or four-factor fair use analysis for the use of each article. And, any use of the articles by members of the group should be limited to non-commercial, educational, or personal research purposes. Furthermore access to the database must be restricted to members of the study group only. Such a database should not be made generally available to the Internet user community.

Scenario:
A professor is preparing for a year-long sabbatical abroad and needs to take with her a book from the library that is critical to her research. The book was published in 1919 by an American university press. The faculty member is reluctant to borrow and take the library copy for an entire year, in case someone else might need it. Can she make a cover-to-cover copy of the book to use for her research?

Response:
Copyright law protects works for limited times. In the United States copyright of published works endures for the life of the author plus 70 years. After the expiration of this term a work falls into the public domain. In this case the publication is now in the public domain and may be copied without infinging on a copyright. It is safe to say that works published in the U.S. before 1923 are now in the public domain.

Scenario:
An instructor scans excerpts from journals, textbooks, and various other sources and creates PDF files of all of the readings. The instructor announces to the class that the readings will be available online at the course WebCT/Vista site. Is this fair use?

Response:
Fair use is determined by the results of the four factor analysis conducted for each work. In this scenario, the instructor must conduct a four factor analysis for each journal article, each textbook section, and any other work she wishes to include on the class WebCT/Vista site. The result may be mixed and fair use might apply to some works while others may require permission from the rights owner for inclusion on the class website.

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.

Scenario:
An instructor wants to create a copy of a documentary and post it to her password-protected course website for download.

Response:
In the face-to-face classroom setting this situation is clearly allowable under the provisions of Section 110(1) in U.S. copyright law. However, until the University meets all of the policy requirements of the TEACH Act instructors can only look to the provisions of fair use when working with media in the online teaching environment.

In this case the instructor would conduct a four factor fair use analysis to determine whether this is an allowable use. The circumstances weigh against fair use. Though the purpose is educational and the nature of this documentary film may be factual, the amount (the entire film) and the market effect (students will download the film and thus be able to keep their own copy) tip the balance of the four factors away from fair use. Use of the entire film may be critical to the educational purpose but by downloading the entire film each student becomes part of a distribution of the film that very likely has a negative market effect which cannot be ignored.

Scenario:
An instructor wants her students to read an article from a professional journal. She accesses the full text of the article as a PDF through the University Libraries. She saves the article to her computer and then uploads it to her course's WebCT Vista site for students to download

Response:
Since the instructor obtained the article from a Libraries licensed electronic resource she needs to understand general limitations and restrictions on use that may be contained in the license agreement between the publisher and the Libraries. The terms of such license agreements control how the materials may be used. It is essential that all instructors using library resources understand their Rights and Responsibilities for the Use of Library-licensed Electronic Resources. Frequently license agreements do not allow copying of PDF files and reposting them to a class web site or WebCT Vista site. However, in numerous instances the instructor can make articles available to students from a course web page through a direct link. To learn how to link directly from your web page to an article available as an electronic resource from the Libraries, see the Linking Methods tutorial.

Scenario:
An instructor has found an article in a professional journal that is particularly useful for a class she teaches every semester. She would like to include the article as reading this semester, and then again next time she teaches the course. Is this a fair use?

Response:
The repeated use of a copyrighted work, from term-to-term, requires particular scrutiny in a fair use evaluation. Such a use explicitly relates to "market effect", the fourth factor in the evaluation. This factor requires one to consider the impact of using a copyrighted work on any market for the original article, including the permissions market. Repeated use, as well as class size, may impact this consideration. Smaller class sizes may mitigate the impact on permissions markets to some extent, and using the article only once, not in future semesters, may further limit the overall market effect of a decision to forego permissions. While not an automatic disqualification, repeated use of a copyrighted work weighs against fair use. For any repeated use to be judged as a fair use, it must be outweighed, in the balance, by the remaining three factors of the evaluation (purpose, nature, and amount).

Scenario:
In the attempt to save students money a professor scans several chapters from an expensive textbook for her course and uploads a PDF file of the chapters to her WebCT/Vista site for students to read. This is the only material the students need from this particular textbook to complete class assignments. Is this a fair use?

Response:
This is not a fair use. A four factor analysis of these circumstances would reasonably conclude that the market is directly affected by this activity. Students who would otherwise be expected to purchase the book no longer need to and the publisher is thus deprived of sales. An alternative approach for the teacher would be to place an appropriately acquired copy of the textbook on reserve in the Libraries or to ask students to purchase the text from the bookstore.