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Section 3. Defining and Applying Fair Use

Learning Objectives

Students will understand:

  • that fair use requires reasoning and interpretation of context and situational factors
  • that the reasoning, interpretation and divergent thinking required to make a fair use analysis parallels the pedagogy involved in strengthening critical thinking and analysis skills through media literacy education
  • how the concepts of copyright and fair use apply to the practice of teaching and learning

Materials

Song: Users' Rights, Section 107

Copies of Section 3 PDF (see attachment), Bill Graham Archives & Transforming Magazine Images worksheet

Copies of the selected readings

Readings

Reading (A): Bill Graham Archives v. Dorling Kindersley FAQ (attached PDF)

A summary of an important fair use case and its implications for educators

Reading (B): Rife, M.C. (2006). Remix as "fair use": Grateful Dead posters' re-publication held to be a transformative, fair use. National Council of Teachers of English. Available at: http://www.ncte.org/cccc/gov/committees/ip/127373.htm

A detailed exploration of a pivotal fair use case and its implications for composition educators.

Reading (C): Band, J. (2007, December). Summary of Fair Use Cases in Education. Association of Research Libraries. Available at: http://www.arl.org/bm~doc/educationalfairusetoday.pdf

A review of the most important educational fair use cases, prepared as a resource for college librarians.

Lesson Plan

Engage interest. Play the song, "Users' Rights, Section 107."  You can download and use the lyric sheet if needed.  Discuss: What are some examples of creative works that rely on the concept of transformativeness?  Students can share their experiences of how transformativeness is found in television programs, movies, on You Tube, in music, and in the fine and popular arts. 

Read and discuss. Read the attached PDF, Bill Graham Archives v. Dorling Kindersley FAQ or "Remix as ‘Fair Use:' Grateful Dead Posters' Re-publication Held to be a Transformative, Fair Use" by Martine Courant Rife. To strengthen reading comprehension, invite students to work with a partner to (1) explain the facts of the case as a story, using narrative concepts such as protagonist, antagonist, setting, conflict, rising action, climax, resolution, and moral or lesson.

To develop an understanding of what constitutes transformative use, (2) ask students to explain in their own words how the publisher used images from the Bill Graham Archives to made them transformative and therefore a fair use of copyrighted material.

Critical thinking. Ask students to (1) generate examples of uses of a copyrighted work that are not transformative, i.e., that do not re-purpose or add value.  Review the concept of "derivative use" from Lesson 1. Encourage students (2) to explain the difference between derivative use and transformative use.

As students offer examples, engage the class in discussion of these examples.  Point out that different people may employ different criteria in making a judgment about the meaning of the concepts of "re-purpose" and "add value."  Fair use is a concept that requires interpretation, and reasonable people will sometimes disagree about what constitutes a fair use. The goal is to use reasoning and analysis in reflecting on both the rights of the copyright owner and the rights of the user.

PRODUCTION ACTIVITY. Students create posters with parts of a magazine, enacting the process of transformativeness by selecting copyrighted materials and adding value or repurposing them and reflecting on the context, purpose and audience of the original copyrighted material and the new creative work.

Before class: Gather and have available magazines, markers, scissors, glue sticks, paper.  Make copies of the attached PDF workshheet W3: Transforming Magazine Images.

View and discuss. View preview clips of one of the Media Education Foundations' videos, such as:  Breaking our Silence; Generation M  or Deadly Persuasion, available on the Media Education Foundation's website or through YouTube.  Select one clip and play it at least twice. Ask: What copyrighted materials are used?  Are these uses of copyrighted work transformative? Some uses of copyrighted materials may be transformative, while others may not. Invite the class to consider how context, purpose, and audience are key elements to consider in assessing whether a work is transformative. 

Partners create a poster. Working with a partner, students get a copy of W3: Transforming Magazine Images, and art supplies. Explain that the goal is to transform some part of the magazine by creating a new message that repurposes or adds value to the original copyrighted work. Students are free to use any part of the magazines, plus markers, paper, etc. While they transform their images, students should consider the following questions.

  • What is the context of the original image? What is the context of the new image?
  • Who is the audience for the original image? Who is the audience for the new image?
  • What is the purpose of the original image? What is the purpose of the new image?

Have each team share their new image with the class and write out full sentences to answer the questions above. As students share their new works, ask: Is this new creative work a transformative use? Why or why not? Is this new work a derivative work?  Why or why not?  What value is added in the new creative work?  Discuss: How does the meaning of transformativeness change depending on whether you use words on the page, images on the page, design elements, or other parts of the magazine?

Discuss: What forms of citation are appropriate for this activity?  Is it important to provide a citation for this re-use of copyrighted work?  Why or why not?  Discuss: Would you feel comfortable sharing your new creation online? Why or why not? 

WRITING ASSIGNMENT:  Students select two YouTube videos and compose a comparison-contrast essay.  Each student selects one example of a video that is likely to be considered a transformative use of copyrighted materials and one that is not transformative. In the essay, students describe each video and justify their selections, applying what they have learned about copyright and fair use.