Re: Fair Use Guidelines

Jeffrey Clark (
Tue, 27 Nov 2001 14:26:37 -0800 (PST)

Nice job on the guidelines elaboration, deg. I knew you and Lisa would
probably chime in with useful explanations.

And you've helped clarify what's involved in educational multimedia
projects too, with the reference to such works being "new". That definitely
excludes the film clips example from their application.

On other things, we'll just need to differ a bit. ;)


--On Tuesday, November 27, 2001 1:08 PM -0800 Deg Farrelly
<> wrote:

> Kris makes a point which illustrates one of the common misinterpretations
> of the Fair Use Guidelines for Educational Multimedia. That is, that the
> FUGEM provide absolute restrictive portion limitations. They do not.
> The FUGEM state that the portion limitations (e.g. 3 minutes or 10%,
> whichever is less, of a film) are guidelines that IF adhered to definitely
> constitute fair use. BUT the FUGEM also states that if one feels she/he
> can make a case of fair use for larger portions she/he may do so... but
> that one has to consider and weigh all 4 of the fair use factors. Only
> the courts can determine if any particular use falls within fair use.
> To add an additional wrinkle, the FUGEM only apply to the creation of NEW
> works based on other works. That means, that value is being added. Just
> copying clips from one tape to another is not adding value. Adding a
> narration, comparison to other scenes in other films, or text from the
> work on which a film is based, for example, would constitute adding value.
> The need in this case seems to be the convenience of showing the clips to
> a class, and later reserve use. But duplicating the clips, in my
> interpretation, exceeds reasonable amount.
> There are other options.... including purchasing multiple copies of the
> video (not an unreasonable expense) and pre-cueing prior to class.
> AND the often unconsidered approach..... writing for PERMISSION to make
> the copy. (Something that the FUGEM suggests and strongly supports.)
> My $.02
> deg farrelly, Associate Librarian
> Media/Communications Studies/Women's Studies
> Arizona State University West
> P.O. Box 37100
> Phoenix, Arizona 85069-7100
> Phone: 602.543.8522
> Email:
>> ----------
>> Date: Mon, 26 Nov 2001 17:58:05 -0500 (EST)
>> From: "Kristine R. Brancolini" <>
>> This is why our lawyers forbid us to use fair use guidelines, including
>> the "Fair Use Guidelines for Educational Multimedia" cited below. They
>> do not have the force of law and they encourage people to treat them as
>> though they do. They encourage thinking in quotas. Our attorneys
>> believe them to be entirely too restrictive. Even if I thought that
>> making a compilation tape from _Saving Private Ryan_ exceeds the
>> boundaries of fair use, I wouldn't make my decision based upon these
>> guidelines.
>> I agree with Jane Agee's interpretation. No one is creating a derivative
>> work. The professor is just trying to create a more effective classroom
>> teaching tool. Take a look at the four tests of fair use:
>> Go to #4, "the effect of the
>> use upon the potential market for or value of the copyrighted work." Is
>> the instructor's use really having a negative impact on "the potential
>> market for or value of the copyrighted work?" Could the professor buy a
>> tape with the clips? License the clips individually? I think not. I
>> wouldn't worry about this tape for a minute. -- Kris

Jeff Clark
Media Resources (MSC 1701)
James Madison University
540-568-6770 (voice)
540-568-3405 (fax)