I frequently get calls from clients wanting to know if they can use someone’s copyrighted material for a presentation they are doing. Let’s talk about a hypothetical client who wanted to know if he could use clips from old TV shows and movies to spice up a boring presentation he was making to college students about recent developments in the automotive industry or some such topic. (Spoiler alert: Forty years after the first gas crisis and we still don’t have cars that get a decent MPG). Anyhow, let’s say this client was making the presentation to around 75 engineering students. Although you might think this was a simple “yes” or “no” question, you’d be wrong. The issue is whether this particular use in these particular circumstances constitutes “fair use” under U.S. Copyright laws. There are a number of factors to consider but the main ones are as follows:
Purpose of use: Copying and using selected parts of copyrighted works for specific educational purposes qualifies as fair use, especially if the copies are made spontaneously, are used temporarily, and are not part of an anthology. The fellow in the hypothetical was using the clips for educational purposes so this factor cut in favor of fair use.
Nature of the work: For copying paragraphs from a copyrighted source, fair use probably applies. For copying a chapter, fair use may be questionable. Copying an entire poem is probably out.
Proportion/extent of the material used: Duplicating excerpts that are short in relation to the entire copyrighted work or segments that do not reflect the “essence” of the work is usually considered fair use.
The effect on marketability: If there will be no reduction in sales because of copying or distribution, the fair use exemption is more likely to apply. This is probably the most important of the four tests for fair use. This factor cut in favor of our hypothetical client using the works.
Based on the “fair use” factors, our presenter would likely be able to make out a fair use defense. The purpose was educational, he was not charging a fee; he was using only a very small portion of the overall work, not its “essence”; and his use would have no effect on the marketability of the movie or TV show, etc. In this particular instance, using the clips was probably OK and I would likely give him my qualified blessing (with the endless lawyer caveats, of course.) However, if your proposed use is more commercial in nature, you should consult an attorney before using the copyrighted works of another. Also, don’t make the mistake of thinking that giving the author credit gets you off the hook for copyright infringement if you aren’t able to make out a fair use defense. You either need to obtain the author’s written permission or you need to use material that would not make you guilty of copyright infringement. Maybe this is your chance to work in your own original material. Who knows? You may even be discovered.