Although most of us who work in libraries and museums would like to have an exact rule to follow regarding Fair Use, nowhere in the U.S. Code is an actual, quantitative number given for determining if a use is fair.
The four factors of Fair Use, as defined in the Code, Section 17, § 107 (LINK) are as follows:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
Although some cite the 10% rule as a factor, this number in fact comes from the “Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with Respect to Books and Periodicals (Classroom Guidelines)” (LINK) which are simply that – guidelines written by individuals, some representing education, and some industry. Indeed, the understandings reached in the “Guidelines” were not adopted by Congress.
Furthermore, the “…not more than 1,000 words or 10% of the work, whichever is less” commonly cited is intended to serve as a “safe harbor” for educators who are hesitant to make their own assessments of fair use. The courts have stated that “…the purpose of the Guidelines was to state the minimum and not the maximum standards of educational fair use” (emphasis added) (LINK). The 10% rule, therefore, was designed to serve as a guide or suggestion for educators but is not a definitive statement and, according to the District Court of Georgia, Atlanta Division, the “absolute cap” of the “Guidelines” is “not compatible with the language and intent of § 107” (LINK).
Fair use, on the other hand (as defined in § 107), is far from formulaic – in fact, the decision in the case of Cambridge University Press et al v. Carl V. Patton, et al (LINK) (the case over the Georgia State University e-reserves) was overturned by the Court of Appeals because the lower court was found to have applied the four fair use factors in a mathematical way, i.e. by applying equal weight to each factor. Instead, fair use must be determined on a case-by-case basis, rather than acting as a formula which can be applied without discrimination to all instances of reuse of copyrighted material that lay claim to being fair use.
Fair use allows us to make judgements about what is an appropriate use of copyrighted material, potentially providing more freedom than the directives of the “Guidelines.” By utilizing fair use, copyrighted material can be used in teaching, parodies, criticism, and more, in potentially broader and more appropriate ways. While case law on fair use is more abundant for textual sources than images, the VRA’s own “Statement on the Fair Use of Images in Teaching, Research and Study” states that the use of images in these contexts “should be consistent with fair use” (LINK, p 8).
Although there is a certain security in having a precise percentage which can be established through numerical means, it is also constraining to not have any flexibility – for example, if a book has 100 pictures and a teacher wants to use eleven images in a classroom, being able to weigh if the use is fair against the four factors is a more reasonable response than to flatly state that the rule is ten images, no more. Again, the “Statement on the Fair Use of Images” says that, “Although one factor cited in the fair use statute is the amount of a copyrighted work being used in relation to the work as a whole, use of substantial portions of a copyrighted work – or an entire work – should not preclude a finding of fair use in a classroom or research context…the educational context matters, and even if the entire work is used, and even if the underlying work is not transformed through the addition of substantial new content, these uses, within the academic context, should be fair ones” (p 10). Maybe that eleventh image contains the heart of the argument the teacher is making, perhaps showing an overall view, of which the previous pictures were simply details; with the 10% rule, we would never know and would be lost amongst the trees, unable to see the forest clearly.
Visual Resources Specialist, College for Creative Studies, Detroit
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