Public Domain, Copyright, and Fair Use Practices for Effective Teaching

Welcome to the Public Domain Mickey

Earlier this year, the animated film, Steamboat Willie (1928), entered the public domain. This means that no one and everyone now owns that film. If you had wanted to use some of that film for teaching something like comparative cultural icons, that’s quite a long time to wait to click the publish button on your Canvas module. What if I told you that there is a provision in U.S. copyright law that provides for fair use of copyrighted intellectual property under certain circumstances including education? Well, that’s what this teaching tip is about. Gawrsh!

Takeaways

Steamboat Willie (1928) is now in the Public Domain.
Educators have rights to teach, critique, parody and research works that are protected by copyright law under fair use.
In most cases you should place video content from your course on media.uaf.edu.

Fair Use

The purpose of copyright law is to protect the intellectual property rights of the creator and give them time to take their work to market. But the law also protects society’s pursuit of justifiable criticism, education, parody and research. The idea that a copyrighted work can be used under the aforementioned circumstances is so fundamental to copyright law, that federal code has it in its first chapter: “Subject Matter and Scope of Copyright.” That first section has text dealing with “Limitations on exclusive rights: Fair Use” [1]. The fair use section lays out four factors which determine if use of a copyrighted work is fair.

The four factors to consider in determining fair use are:

Commercial or Non-profit / Educational
Nature of the copyrighted work
Proportion of the work used, and,
Effect on the potential marketing of the work.

All of these factors must be considered in determining whether a use case is fair.

You don’t have to be an expert in copyright law to consider these four factors. The law, in fact, provides that if you, as an educator, have a reasonable belief that you are using copyright material in a fair use fashion, then you are largely shielded from lawsuits[2]. If you ever have a question about material you’d like to teach, and if it falls under fair use, you can always ask for advice at the Center for Teaching and Learning at UAF.

There’s a nice tool available online that helps you document your justification for using something under the guise of fair use: The Fair Use Evaluator [3]. The tool helps you document how your case is fair with a combination of all four of the factors provided in 17 U.S.C. § 107. After providing information, you can optionally document your findings with a downloadable PDF.

I used the tool to generate a fair use justification for using parts of a recently published book, Prequel, by Rachel Maddow. You can see the resulting document that the tool generates [4].

I had the opportunity to ask legal experts about this a few years ago. At a conference, I overheard some people getting a presentation ready for the next day. It was apparent that the conversants were publishers and lawyers. They specialized in marketing popular material like films and music to educators. I introduced myself in my role of working for UAF and giving advice to faculty on IP matters from time to time. When I asked about how well an educator is protected from being sued for IP damages due to fair use related issues, they all sort of laughed, and quickly indicated that their firm, and publishing house NEVER pursued educators, that the law was so firmly established in that regard that it was pointless to pursue damages against educators teaching in good faith.

UAF’s Streaming Service

Even though your legitimate teaching practices are shielded from lawsuits, you can still run the risk of having your course disrupted by automatic processes on certain streaming services like YouTube. According to YouTube, uploaded videos are checked against a database of content from copyright owners [5]. If there is a match, the video is automatically flagged for removal by an automated process. There is no human intervention, at least until complaints are received. That means if you are recording yourself in a public place, and someone walks by playing a popular song, even though that is not the content of your video, a bot may identify and flag your video. This usually results in an automatic take down of the video. In some cases your entire YouTube channel can be taken down and your only recourse is to email customer service with your side of the story. This can take weeks, and your content will not be available for that time. Gawrsh!

This is not a theoretical case; this has happened to multiple instructors that the Center for Teaching and Learning has helped over the years. About a decade ago, we used to have most instructor video content under a single YouTube account, and because of a mismatched copyright claim, the entire channel was put offline. This was a great motivation for us to obtain a secure platform for streaming academic content. We created a cloistered space where University videos could be streamed without the fear of robotic take downs. That’s one of the reasons why we strongly advise instructors to place their video content on UAF’s media.uaf.edu.

The main advantages of our official University sponsored video streaming service is that publishers can’t perform automatic takedowns because they can’t normally see content, and they do not control it. There are no automatic bots searching videos and “listening” to instances of happenstance where background music might be playing that contains pop music. This coupled with the fact that media.uaf.edu is not filtered from public school networks in Alaska points to a heavy and justifiable bit of advice: Use media.uaf.edu.

So, please, go ahead and critique, parody, report, and teach about things including those from materials under copyright. Just do it fairly. As an educator you have a very wide latitude as to what is fair. You are protected by law, precedent, and practicality.

Oh, and that picture of Steamboat Willie in this tip? If you perform an image search for “Steamboat Willie” you’ll see various frames of Mickey mouse steering that riverboat. The thing is, none of the images are readily copyable, and many have weird and icky IP stamps on them. I got my copy of Steamboat Willie from Disney+ streaming service, but I had to outsmart the Digital Rights Management Protection on my computer. Even though Steamboat Willie is no longer owned by Disney, my computer prevents me from taking screenshots of certain streaming content. It didn’t stop me from using a camera to take a picture of my screen though. Gawrsh [6]!

Copy the mouse and educate.