Hello, everyone. We've now worked our way through three parts of the framework for analyzing a copyright problem. We've talked about how to determine if there's a copyright, who the rights holder might be. We've also considered licenses and whether or not there are specific exceptions that might support teaching, and teaching with images. So following our framework, we're going to turn our attention now to fair use and specifically fair use in images. So Kevin, as you know, fair use is always a facts specific analysis. >> Mm-hm. >> As we say, if you change the facts you change the outcome. So we will review each of the four factors of fair use. And we'll also make note that transformative fair use is equally important but we're going to have a detailed discussion about that in another lecture. >> Right, so let's talk about the first factor in the fair use analysis, which is the purpose of the use. Obviously this is extremely important, especially in an educational setting. When a work is used for a non-profit, educational purpose, this factor, the purpose of the use, is likely to favor fair use. In the text of Section 107, which is where fair use is found, examples are specifically provided for the kinds of things that are likely to be fair use. Those examples include criticism, comment, news reporting, teaching, including multiple copies for classroom use, scholarship or research. And notice that of those whatever it is, six, five of them are the kinds of things we do in teaching. Now these are not prescriptive, they do not guarantee that something is going to be a fair use, and it's possible that something would be a fair use even if it didn't fall into one of these categories. Even commercial uses can be fair use. So these are guidance. They don't short circuit the need to do the full four factor analysis, but they help a little bit. So for images, an educational use may be covered under the Teach Act or the classroom exceptions, as you and Ann have already discussed. But if they're not, that use may still be a fair use based on this four-factor analysis. The second factor, after we've looked at the first factor and said, what's the purpose of the use? The second factor is the nature of the copyrighted work. And when the copyrighted work that is used is creative, it's less likely to be a fair use. There's a little less room for fair use of creative works than there is for fair use of factual works. And when we're talking about visual arts and images, that means that this factor is fairly likely to count against fair use. Again, it doesn't decide the issue, but it's likely to count against fair use because, by their very nature, the visual arts are highly creative. The third factor is the amount used of the particular work. That's the third part of our analysis and it's really closely related to the first factor. If the amount used is appropriate to the purpose, that's probably going to favor fair use. So we're always looking at that relationship. When we talk about this factor, we often hear these rules about 10% is okay but 15% isn't, that sort of thing. Those rules can be helpful rules of thumb, but they're not hard and fast rules, and it's really not, they're not in the law, by the way. It's much more appropriate to look at the relationship between the amount and the purpose. And by and large, the courts disfavor those rules. They prefer a more holistic approach, balancing all the factors, and specifically looking at whether the third factor, the amount, is appropriate in the light of the first factor, the purpose of the work. Generally, there are two things to consider when we're thinking about the amount. The amount should be, as we've been saying, appropriate for the purpose. And secondly, less is always better. You should use no more that you need in order to accomplish your purpose. >> So with visual arts and images, it's that use no more than you need, that can sometimes be a challenge. Because unlike film and music, very often it's difficult to use only a portion of the work. >> Sure. >> And not lose the meaning of the work itself. So can you really effectively teach a painting if you're only showing a section of the painting? >> Mm-hm. >> Well, perhaps, if you're teaching still life paintings and your focusing only on the images of the fruit, for example. But generally, really, the use of a work, as you say, is tied to what is appropriate for a fair use analysis and it is a balancing test. So it may be very possible that the entire work is needed, even when it is a creative work. The amount used does become less important in a transformative fair use analysis, but we're gonna cover that in another lecture. So the fourth factor is the impact of the use on the market, or the potential market for the work. So for visual arts and images, this fourth factor raises two important questions. The first question is, does the use substitute for the purchase of the image? So let's take as an example, if I made a print of a watercolor that someone else had painted, does that substitute or compete for the sale of the watercolor? Well, perhaps not for the original, but it could compete if the artist chose themselves to make prints of their watercolor, and sell those prints in the market. That, for the artist, might be their potential market. They may not have chosen to do that yet. So, in that case, my print could potentially impact the market for that watercolor. Also, particularly for photographs, there may be a license for my use that's readily available. So if I put a copy of a photograph on the web, that could certainly impact the potential licensing of that photograph by the photographer. And many photographers make their living by license fees, and charging license fees. So where licensing is readily available, that also may shrink the opportunity for fair use. However, when we discuss transformative fair use, we'll see that market and licenses are sometimes not as predominant in the analysis. So we'll look forward to that in another lecture. >> Great, thank you for listening.
