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Media literacy education distinctively features the analytical attitude that teachers and learners, working together, adopt toward the media objects they study. The foundation of effective media analysis is the recognition that: All media messages are constructed.Each medium has different characteristics and strengths and a unique language of construction.Media messages are produced for particular purposes.All media messages contain embedded values and points of view.People use their individual skills, beliefs and experiences to construct their own meanings from media messages.Media and media messages can influence beliefs, attitudes, values, behaviors, and the democratic process. Making media and sharing it with listeners, readers, and viewers is essential to the development of critical thinking and communication skills. Feedback deepens reflection on one’s own editorial and creative choices and helps students grasp the power of communication.

Lack of clarity reduces learning and limits the ability to use digital tools. Some educators close their classroom doors and hide what they fear is infringement; others hyper-comply with imagined rules that are far stricter than the law requires, limiting the effectiveness of their teaching and their students’ learning.

Educators and learners in media literacy often make uses of copyrighted materials that stand far outside the marketplace, for instance, in the classroom, at a conference, or within a school-wide or district-wide festival. Such uses, especially when they occur within a restricted-access network, do enjoy certain copyright advantages.

Law provides copyright protection to creative works in order to foster the creation of culture. Its best known feature is protection of owners’ rights. But copying, quoting, and generally re-using existing cultural material can be, under some circumstances, a critically important part of generating new culture.

In reviewing the history of fair use litigation, we find that judges return again and again to two key questions: Did the unlicensed use "transform" the material taken from the copyrighted work by using it for a different purpose than that of the original, or did it just repeat the work for the same intent and value as the original? Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use? If the answers to these two questions are "yes," a court is likely to find a use fair. Because that is true, such a use is unlikely to be challenged in the first place.

Both key questions touch on, among other things, the question of whether the use will cause excessive economic harm to the copyright owner. Courts have told us that copyright owners aren’t entitled to an absolute monopoly over transformative uses of their works.

Another consideration underlies and influences the way in which these questions are analyzed: whether the user acted reasonably and in good faith, in light of general practice in his or her particular field.

Code of Best Practices in Fair Use for Media Literacy Education

Through its five principles, this code of best practices identifies five sets of current practices in the use of copyrighted materials in media literacy education to which the doctrine of fair use clearly applies. These practices are associated with K–12 education, higher education, and in classes given by nonprofit organizations. When students or educators use copyrighted materials in their own creative work outside of an educational context, they can rely on fair use guidelines created by other creator groups, including documentary filmmakers and online video producers.

These principles apply to all forms of media.

The principles apply in institutional settings and to non-school-based programs. 

The principles concern the unlicensed fair use of copyrighted materials for education, not the way those materials were acquired. 

where a use is fair, it is irrelevant whether the source of the content in question was a recorded over-the-air broadcast, a teacher’s personal copy of a newspaper or a DVD, or a rented or borrowed piece of media. Labels on commercial media products proclaiming that they are “licensed for home [or private or educational or noncommercial] use only” do not affect in any way the educator’s ability to make fair use of the contents—in fact, such legends have no legal effect whatsoever. (If a teacher is using materials subject to a license agreement negotiated by the school or school system, however, she may bebound by the terms of that license.)

TWO:  Employing Copyrighted Materials in Preparing Curriculum Materials

fairness of a use depends, in part, on whether the user tookmore than was needed to accomplish his or her legitimate purpose.

PRINCIPLES

ONE:  Employing Copyrighted Material in Media Literacy Lessons

The principles are all subject to a “rule of proportionality.” 

THREE:  Sharing Media Literacy Curriculum Materials

In materials they wish to share, curriculum developers should beespecially careful to choose illustrations from copyrighted media that are necessaryto meet the educational objectives of the lesson, using only what furthers theeducational goal or purpose for which it is being made.

FOUR:  Student Use of Copyrighted Materials in Their Own Academic and Creative Work

Students should be able to understand and demonstrate, in a mannerappropriate to their developmental level, how their use of a copyrighted workrepurposes or transforms the original. For example, students may use copyrightedmusic for a variety of purposes, but cannot rely on fair use when their goal is simplyto establish a mood or convey an emotional tone, or when they employ popular songssimply to exploit their appeal and popularity.

FIVE:  Developing Audiences for Student Work

If student work that incorporates, modifies, and re-presents existingmedia content meets the transformativeness standard, it can be distributed to wideaudiences under the doctrine of fair use.

Educators and learners in media literacy often make uses of copyrighted works outside the marketplace, for instance in the classroom, a conference, or within a school-wide or district-wide festival. When sharing is confined to a delimited network, such uses are more likely to receive special consideration under the fair use doctrine.

Especially in situations where students wish to share their work more broadly (by distributing it to the public, for example, or including it as part of a personal portfolio), educators should take the opportunity to model the real-world permissions process, with explicit emphasis not only on how that process works, but also on how it affects media making.

The ethical obligation to provide proper attribution also should be examined.

This code of best practices, by contrast, is shaped by educators for educators and the learners they serve, with the help of legal advisors. As an important first step in reclaiming their fair use rights, educators should employ this document to inform their own practices in the classroom and beyond

MYTH:  Fair Use Is Just for Critiques, Commentaries, or Parodies. Truth:  Transformativeness, a key value in fair use law, can involve modifying material or putting material in a new context, or both. Fair use applies to a wide variety of purposes, not just critical ones. Using an appropriate excerpt from copyrighted material to illustrate a key idea in the course of teaching is likely to be a fair use, for example. Indeed, the Copyright Act itself makes it clear that educational uses will often be considered fair because they add important pedagogical value to referenced media objects.

So if work is going to be shared widely, it is good to be able to rely on transformativeness. As the cases show, a transformative new work can be highly commercial in intent and effect and qualify under the fair use doctrine.

Permission is not necessary to satisfy fair use.

Fair use is a doctrine within copyright law that allows use of copyrighted material for educational purposes without permission from the the owners or creators. It is designed to balance rights of users with the rights of owners by encouraging widespread and flexible use of cultural products for the purposes of education and the advancement of knowledge.

My new understanding: I learned on Friday night that the critical test for fairness in terms of educational use of media is transformative use. When a user of copyrighted materials adds value to, or repurposes materials for a use different from that for which it was originally intended, it will likely be considered transformative use; it will also likely be considered fair use. Fair use embraces the modifying of existing media content, placing it in new context.  Examples of transformativeness might include: using campaign video in a lesson exploring media strategies or rhetoric, using music videos to explore such themes as urban violence, using commercial advertisements to explore messages relating to body image or the various different ways beer makers sell beer, remixing a popular song to create a new artistic expression.

Long ago, I learned that educational use of media had to pass four tests to be appropriate and fair according to U.S. Code Title 17 107: the purpose and character of the use, including whether the use is commercial or nonprofit the nature of the use the amount of the use the effect of the use on the potential market for the copyrighted work.

--A Conversation about Media Literacy, Copyright and Fair Use--stirred up more cognitive disonance than I've experienced in years

the discussion was one of several to be held around the country designed to clear up widespread confusion and to: develop a shared understanding of how copyright and fair use applies to the creative media work that our students create and our own use of copyrighted materials as educators, practitioners, advocates and curriculum developers.

national code of practice

Jaszi points to Bill Graham Archives vs.Dorling Kindersley (2006) as a clear example of how courts liberally interpret fair use even with a commercial publisher.

The publisher added value in its use of the posters. And such use was transformative.

Here's what I think I learned on Friday about fair use: The Multimedia Fair Use Guidelines describe minimum rules for fair use, but were never intended as specific rules or designed to exhaust the universe of educational practice.  They were meant as a dynamic, rather than static doctrine, supposed to expand with time, technology, changes in practice.  Arbitrary rules regarding proportion or time periods of use (for instance, 30-second or 45-day rules) have no legal status.  The fact that permission has been sought but not granted is irrelevant.  Permission is not necessary to satisfy fair use. Fair use is fair use without regard to program or platform. What is fair, because it is transformative, is fair regardless of place of use. If a student has repurposed and added value to copyrighted material, she should be able to use it beyond the classroom (on YouTube, for instance) as well as within it.  Not every student use of media is fair, but many uses are. One use not likely to be fair, is the use of a music soundtrack merely as an aesthetic addition to a student video project. Students need to somehow recreate to add value.  Is the music used simply a nice aesthetic addition or does the new use give the piece different meaning? Are students adding value, engaging the music, reflecting, somehow commenting on.the music? Not everything that is rationalized as educationally beneficial is necessarily fair use.  For instance, photocopying a text book because it is not affordable is still not fair use.

Copyright law is friendlier to good teaching than many teachers now realize. Fair use is like a muscle that needs to be exercised.  People can't exercise it in a climate of fear and uncertainty