Building on Activities 12A and 12B, the instructor leads a discussion on the judge’s ruling on a case similar to the one students have been analyzing. Students see how accurate their predictions were.
Learning Outcomes
Students will be able to:
- List the factors of fair use.
- Explain how a judge applied the fair use factors in a real case.
Relevant Threshold Concepts
- Information has value.
Suggestions for Use
- This activity should be helpful in classes where students may be using copyrighted works for presentations or other multimedia projects.
- This activity should follow Activities 12A and 12B.
- Although U.S. copyright law provides exclusive rights to creators, the fair use exception often applies to the academic work of students who want to use materials copyrighted by others. Basic knowledge of fair use will help students make ethical and thoughtful choices about their use of copyrighted media and text in assignments and in their careers after college.
- Students should use the same Handout 12A-1 for Activities 12A, 12B, and 12C. So be sure you collect and save the handouts students start in Activity 12A, use in Activity 12B, and finish in Activity 12C.
Pre-Class Preparation
- Review In-Class Procedure below.
- Prepare for leading the discussion, using your own remarks or the material in In-Class Procedure below, if it seems helpful.
- Consider assigning students to read before class Chapter 12, Fair Use, of Choosing & Using Sources, if you haven’t already.
- Download and/or print In-Class Procedure so you can take it with you to class.
In-Class Procedure
- If your students worked in groups for Activity 12A, ask them to get into the same groups for this activity.
- Distribute completed Handout 12A-1 that you collected at the end of Activity 12B to individual students or to groups.
- Introduce the activity by saying that this is a continuation of earlier activities on fair use factors and that today you will be discussing their predictions.
- Ask students or groups to tell by a show of hands who predicted that the judge in a similar case would find that this use is fair use? How many predicted the judge would find that this was not fair use?
- Tell students the results of the case (Kienitz v. Sconnie Nation, LLC ) that their scenario was modeled on: the court held the use of photograph to be a fair use.
- Share with students these key points in the court’s fair use analysis (Citation: Kienitz v. Sconnie Nation, LLC, 766 F.3d 756 [7th Cir. 2014]:
About Factor 1 (purpose): A small profit was made on the t-shirt but the work was used for purposes of political commentary. The court does not say definitively that this factor favors or opposes fair use (factor is possibly neutral).
About Factor 2 (amount): The court does not go into much analysis with this factor, stating only that this factor is “unilluminating.” This is a good reminder that not all factors will weigh heavily, or at all, in a court’s decision.
Factor 3 (nature): The image used on the t-shirt differed significantly from the original image, with the final t-shirt image retaining only a hint of a smile and an outline of a face (favoring fair use).
Factor 4 (effect): A t-shirt is not a substitute for the original photograph and there was not an argument made that the photographer had plans to license the photograph for apparel in the future (favoring fair use).
7. Discuss the court outcome regarding this similar case with students, asking these questions:
- Is anyone surprised by the court’s decision in the real case?
- Were you surprised about the court’s view on a single factor, or on the case in its entirety?
- How would you change the facts of this case to reach the opposite result?
- Which factors do you feel weighed most heavily in your or your group’s decision?
- Which factors do you feel weighed most heavily in the court’s decision?
- Can you think of a time in your education where you have used someone else’s work? Was that use a fair use?
- Can you explain whether it was fair use or not using the four factors?
Relevant Choosing & Using Sources Chapters:
Chapter 12, Fair Use.
Credit: Marley Nelson and Maria Scheid of the Copyright Resources Center at the Ohio State University Libraries contributed to this activity.
