Applying the Code of Best Practices in Fair Use for Open Educational Resources need not be intimidating or administratively burdensome. This practical guide translates the Code’s abstract principles into concrete steps that educators can systematically follow when deciding whether to incorporate copyrighted materials into OER. By breaking fair use analysis into six phases—preparation, four-factor analysis, synthesis, implementation, documentation, and institutional support—educators can make confident, well-reasoned decisions that prioritize pedagogical quality while remaining legally defensible. The process relies on documented professional judgment, accessible tools like fair use checklists, and transparent signaling practices that enable downstream users to understand and extend original creators’ fair use rationales. This step-by-step approach transforms fair use from abstract doctrine into practical workflow.
Phase 1: Preparation—Before You Analyze Fair Use
Step 1.1: Define Your Pedagogical Objective
Before analyzing fair use, be absolutely clear about what you’re trying to teach and why:
Essential Questions:
- What specific learning outcome does this material serve?
- How does it address your course or OER learning objectives?
- Is this the BEST available material for achieving this outcome?
- Would students learn this concept less effectively with different material?
Why This Matters: Fair use doctrine emphasizes transformative use. The transformation here is pedagogical: you are using a copyrighted work to teach something, not to reproduce it for its original purpose. The stronger and clearer your pedagogical purpose, the stronger your fair use position.
Documentation: Write a brief statement of learning objective and how the material serves it. This becomes part of your fair use justification.
Step 1.2: Search Comprehensively for Open-Licensed Alternatives
The “open-first” strategy means beginning with materials you can use without copyright analysis:
Search Process:
| Source | What to Search | Why Check |
|---|---|---|
| CC Repositories | Flickr, Unsplash, Pexels, Pixabay, Wikimedia Commons | High-quality CC-licensed media |
| Open Textbooks | OpenStax, Open Textbook Library, MERLOT | Complete OER materials |
| Public Domain | Library of Congress, Internet Archive, Project Gutenberg | Content free of copyright |
| Government Resources | U.S. government websites, NASA, NOAA, U.S. Census | Government works typically public domain |
| Institutional Repositories | Your university’s repository, open access journals | Materials your institution has rights to |
| Creative Commons Search | ccsearch.creativecommons.org, search filters | Materials explicitly licensed CC |
Key Consideration: Look specifically for CC BY licensed materials. While other CC licenses (SA, NC, ND) may work, CC BY permits the most unrestricted reuse and remixing that benefits future OER adapters.
Documentation: Keep records of your search. What terms did you search? What alternatives did you find but reject? Why were they inadequate? This documentation demonstrates that you considered alternatives before relying on fair use.
Step 1.3: Decide: Fair Use or Continue Searching?
Decision Point: Based on your searches, determine:
- Found adequate CC-licensed alternative? Use it instead. Fair use is supplement, not foundation.
- Found inadequate alternatives? The material doesn’t address your specific learning objective adequately. Proceed to fair use analysis.
- Uncertain whether alternative is adequate? If you found CC material that is “good enough,” use it for legal certainty. Reserve fair use for cases where CC alternatives are genuinely inadequate.
Principle: The Code of Best Practices emphasizes that fair use enables educators to incorporate materials that no open-licensed alternative adequately addresses. If CC materials meet your pedagogical needs, use them. Fair use becomes relevant when CC alternatives fall short.
Phase 2: Fair Use Analysis—Evaluating the Four Statutory Factors
Understanding the Four-Factor Framework
Fair use law (Section 107 of the Copyright Act) asks courts to evaluate four factors. These factors are not independent rules but work together holistically. No single factor is “dispositive” (outcome-determining); rather, courts weigh all four in context.
Step 2.1: Gather Source Material Details
Before analyzing fair use, document precisely what you’re analyzing:
Required Information:
| Element | Where to Find | Why Important |
|---|---|---|
| Title | Work itself or citation | Identifies work precisely |
| Author/Creator | Work’s cover page, metadata | Potential copyright holder |
| Copyright Holder | Copyright page, registration, IMDB | May differ from author; you contact them for permission |
| Publication Date | Title page or metadata | Affects copyright duration |
| Type of Work | Self-evident | Text vs. image vs. film analyzed differently |
| Source URL/DOI | Where you found it | Enables verification; helps future users find source |
| Publication Status | Is it published or unpublished? | Published works receive different analysis than unpublished |
| Nature: Factual or Creative? | Assessment based on content | Fundamental to Factor 2 analysis |
Documentation: Create a record (paper or digital) capturing these details. This becomes the foundation of your fair use checklist.
Step 2.2: Analyze Factor 1—Purpose and Character of the Use
The Core Question: Is your use transformative? Does it serve a fundamentally different purpose than the original work?
What Is Transformative Use?
Transformative use means the new work serves a different purpose, adds new expression or meaning, presents material in a new context, or generates new insights. The original work is not merely reproduced; it is repurposed.
Examples:
- Original: Documentary photograph of historical event → Transformative Use: Incorporating into history textbook with pedagogical analysis (new purpose: teaching)
- Original: Commercial film for entertainment → Transformative Use: Using clip in film studies course analyzing cinematic technique (new purpose: instruction)
- Original: Scientific journal article reporting research findings → Transformative Use: Excerpting methodology section in research methods textbook with critical discussion (new purpose: teaching methodology)
Assessment Process for Factor 1
Document the following:
- Original Work’s Purpose: Why was this created?
- Entertainment? (film, music, novel)
- Information? (news article, scientific paper)
- Commercial? (advertisement, product manual)
- Other? (documentary, art, government report)
- Your New Use’s Purpose: Why are you using it?
- Teaching a concept? (pedagogical transformation)
- Providing authentic examples? (illustrative transformation)
- Supporting critical analysis? (analytical transformation)
- Practicing skills? (practical transformation)
- Transformative Test: Can you articulate how your new purpose differs from and adds to the original?
- Does your use add new expression, meaning, or context?
- Would someone seeking the original’s purpose be satisfied with your use, or do they serve different needs?
- Are you using the work to accomplish something the original creator didn’t intend?
Factors Favoring Fair Use (Factor 1)
- Educational purpose (teaching, research, scholarship)
- Nonprofit use (free distribution, educational institution)
- Transformative purpose (new context, new meaning, new expression)
- Critical or analytical use (examining, commenting, discussing the work)
- Different market/audience (uses serves different audience than original)
Factors Opposing Fair Use (Factor 1)
- Commercial purpose (charging for access, profit-making)
- Reproductive purpose (using work for its original purpose)
- Substitutional purpose (replacing market for original)
- Entertainment/recreational (consuming original for pleasure)
- Duplicative use (exact reproduction without new context or purpose)
Documentation Example
Poor documentation: “Using this image for educational purposes in OER.”
Strong documentation: “This photograph, originally created as documentary journalism recording racial segregation in 1963, is being incorporated into a history textbook to illustrate the historical reality of Jim Crow laws. The transformative purpose—teaching historical context—differs fundamentally from the original journalistic documentation. Students engage with the photograph as historical evidence analyzed within scholarly historical framework, not as original journalistic content.”
Step 2.3: Analyze Factor 2—Nature of the Copyrighted Work
The Core Question: Is the original work primarily factual or highly creative?
Why This Matters
Copyright law assumes that creators of highly creative works (novels, music, film) deserve stronger protection than creators of factual compilations (news, scientific papers, databases). This reflects the idea that creativity deserves more protection than information collection.
Assessment Process
Categorize the original work:
| Category | Examples | Fair Use Implication |
|---|---|---|
| Factual | News articles, scientific papers, documentaries, historical accounts, biographies, datasets | More amenable to fair use; information should be freely available |
| Creative | Novels, poetry, music, films made for entertainment, artistic works | Less amenable to fair use; creativity deserves protection |
| Mixed | Narrative nonfiction, dramatic adaptations of true events, illustrated textbooks | Analyzed based on dominant character |
Factors Favoring Fair Use (Factor 2)
- Work is factual (news, scientific, documentary)
- Work is published (already publicly available)
- Work is in public domain (copyright expired)
- Work is compilation of facts (directory, database, almanac)
- Work is based on public information (government records, statistics)
Factors Opposing Fair Use (Factor 2)
- Work is highly creative (novel, poetry, music, entertainment film)
- Work is unpublished (creator hasn’t released to public)
- Work is still under active copyright (not yet public domain)
- Work represents significant creative expression
- Work is traded commercially (actively marketed by copyright holder)
Documentation Example
Weak: “The work is a photograph.”
Strong: “The original work is a professional news photograph created by photojournalist X for news publication Y. As a factual documentary photograph (not a purely creative artistic work), it is more amenable to fair use. However, it remains a published, copyrighted work created for commercial news purposes, which somewhat limits fair use scope.”
Step 2.4: Analyze Factor 3—Amount and Substantiality
The Core Question: Is the amount you’re using appropriate to your transformative purpose?
Common Misconception
Many educators assume “amount” means percentage (e.g., “can I use 10% of a work?”). Actually, courts ask whether the amount is contextually appropriate—neither more nor less than necessary to accomplish the transformative purpose.
Assessment Process
Document the following:
- Exact Amount Used:
- If text: page numbers, word count, or excerpt length
- If image: entire image or portion? percentage of page?
- If audio: exact duration (seconds/minutes)
- If video: segment duration vs. total length
- If code: number of lines, functions, or modules
- Necessity Test: Is this amount necessary to accomplish your pedagogical purpose?
- Would less material achieve the learning objective?
- Would more material be excessive?
- Can any portion be eliminated?
- Heart of the Work: Are you taking the most valuable, memorable, or central portion?
- Even a small percentage can be problematic if it’s the “heart”
- Example: A few lines of a famous poem might be the “heart” despite being small percentage
- Conversely, entire photograph might be necessary despite being 100% of work
Scenarios and Analysis
Scenario 1: Entire Photograph in Photography Course
- Amount: 100% of original work
- Necessary? YES—photographs are unified wholes; removing portions destroys composition analysis
- Heart? N/A—entire work is necessary
- Assessment: Amount is appropriate; Factor 3 favorable
Scenario 2: Brief Audio Clip in Music Course
- Amount: 7-10 seconds of 3-minute song (3-5%)
- Necessary? YES—enough to demonstrate harmonic technique but insufficient to substitute for listening to full song
- Heart? NO—not the most memorable portion, just illustrative segment
- Assessment: Small, appropriate amount; Factor 3 favorable
Scenario 3: Entire Film in Film History Course
- Amount: 100% of two-hour feature film
- Necessary? YES—film is unified artistic work; analyzing it requires seeing complete work
- Heart? N/A—entire work is pedagogical unit
- Assessment: Entire work appropriate for analytical course; Factor 3 neutral or favorable
Scenario 4: Entire Textbook Reproduced to Avoid Student Purchases
- Amount: 100% of work
- Necessary? NO—goal is cost-avoidance, not unique pedagogical transformation
- Heart? YES—taking all of it
- Assessment: Not appropriate; Factor 3 strongly unfavorable
Factors Favoring Fair Use (Factor 3)
- Small quantity relative to whole work
- Amount is appropriate to purpose (neither excessive nor insufficient)
- Portion used is not the “heart” (not most valuable/memorable part)
- Amount is necessary for transformative purpose
- Entire work acceptable if entire work is necessary (photos, primary documents, short works)
Factors Opposing Fair Use (Factor 3)
- Large quantity relative to whole work
- Taking the “heart” (most valuable, memorable, or distinctive part)
- Amount exceeds necessity (could accomplish purpose with less)
- Repeated copying from same source (cumulative effect harms market)
- Entire lengthy work without transformative necessity (e.g., whole textbook)
Documentation Example
Weak: “Using a photograph from a magazine article.”
Strong: “Incorporating the complete photograph (1 of 50 images in original magazine article) into the OER to illustrate photographic composition principles. The entire photograph is necessary because composition analysis requires viewing the complete frame and spatial relationships. The use is not the ‘heart’ of the magazine article (which was about the subject depicted, not the photographic technique), and the amount is appropriate to the pedagogical purpose of teaching composition analysis.”
Step 2.5: Analyze Factor 4—Effect on the Market
The Core Question: Will your use compete with or harm the copyright holder’s market for the original work?
Understanding “Market Effect”
Courts give “great weight” to this factor. The question is not whether the copyright holder is actually harmed, but whether the use has the potential to displace sales, licensing revenue, or market value of the original work.
Assessment Process
Document the following:
- Is There a Commercial Market for This Work?
- Is the copyright holder actively selling or licensing this work?
- Are copies available for purchase or subscription?
- Is there a licensing infrastructure (permissions departments, licensing agencies)?
- Would copyright holder grant a license if asked?
- Would Your Use Substitute for That Market?
- Could someone use your OER instead of purchasing original?
- Does your OER serve the same market as original?
- Would your use reduce copyright holder’s licensing revenue?
- Derivatives and Adaptations Market
- Is there a market for adaptations of this work? (e.g., textbook adaptations, translations)
- Would copyright holder license adaptations?
- Does your transformative use compete with adaptation market?
Scenarios and Analysis
Scenario 1: Brief Song Excerpt in Music Appreciation Course
- Market: Yes, music industry actively licenses music
- Competition? NO—brief clip doesn’t substitute for purchasing/streaming full song
- Students seeking full song still need to purchase/stream
- Licensing market affected? MINIMALLY—excerpt insufficient for market substitution
- Assessment: Market effect is minimal; Factor 4 favorable
Scenario 2: Entire Photograph in History Textbook
- Market: Limited—original photograph was journalistic, not currently marketed as independent product
- Competition? NO—history students aren’t purchasing original photograph
- Licensing market affected? MINIMAL—no established licensing market for historical use
- Assessment: Minimal market effect; Factor 4 favorable
Scenario 3: Entire Academic Textbook Reproduced Free in OER
- Market: Yes—textbook is actively sold commercially
- Competition? YES—students would read free OER instead of purchasing textbook
- Licensing market affected? SEVERELY—directly substitutes for copyright holder’s primary market
- Assessment: Strong negative market effect; Factor 4 strongly unfavorable
Scenario 4: Professional Manual Excerpts in Technical Training Course
- Market: Yes, manual is sold as reference guide
- Competition? NO—your excerpts teach concepts; professionals still need complete manual for reference
- Licensing market affected? MINIMAL—your use is pedagogical; professional market remains
- Assessment: Market effect is minimal; Factor 4 favorable
Factors Favoring Fair Use (Factor 4)
- Use does NOT substitute for original (different market/purpose)
- No licensing market exists for this type of use
- Copyright holder unlikely to profit from licensing this use
- Use is in different market than original
- Licensing infrastructure absent (copyright holder doesn’t license this use)
- Work is out of print or unavailable for purchase
Factors Opposing Fair Use (Factor 4)
- Use directly substitutes for purchase of original
- Licensing market exists and copyright holder charges for this use
- Your use competes with copyright holder’s market
- Licensing mechanism available that you’re circumventing
- Use harms copyright holder’s licensing revenue
- Work remains actively marketed by copyright holder
Documentation Example
Weak: “This use shouldn’t affect the original’s market.”
Strong: “While the original scientific article is published and occasionally licensed for educational use, the brief excerpt (2-3 sentences) is incorporated into OER for the specific pedagogical purpose of illustrating research methodology. The excerpt is too small to substitute for purchasing the full article; researchers and students seeking the complete study must still access the original publication. No established licensing market exists specifically for methodology excerpts from this article. Therefore, the use has minimal market impact and does not compete with copyright holder’s market for the original work.”
Phase 3: Synthesis and Decision
Step 3.1: Weigh All Four Factors Together
Fair use analysis is not mechanical. It requires judgment:
Remember:
- No single factor is dispositive (outcome-determining)
- Some factors may weigh more heavily than others in context
- A very strong Factor 1 (transformative) might outweigh a weak Factor 3 (amount)
- Conversely, even transformative use might fail if market harm is severe
- All factors work together holistically
Step 3.2: Make Your Fair Use Determination
Decision Options:
| Confidence Level | What It Means | What To Do |
|---|---|---|
| Clear Fair Use | Analysis strongly supports fair use across all or most factors | Document thoroughly; proceed confidently; signal fair use in OER |
| Likely Fair Use | Analysis suggests fair use likely applies; some uncertainty | Document carefully; consider peer review; institutional consultation beneficial |
| Gray Area/Uncertain | Factors mixed; could go either way | Seek legal counsel; consult copyright officer; find alternative material if possible |
| Probably Not Fair Use | Analysis does not support fair use | Seek permission; find alternative CC material; do not incorporate |
Document Your Conclusion: Write a brief summary explaining how the four factors weigh in your analysis. Courts appreciate good-faith reasoning even if they disagree.
Example Strong Determination:
“This 10-second audio excerpt from a commercial recording of jazz standard ‘In a Sentimental Mood’ qualifies as fair use for inclusion in our OER jazz appreciation course. Factor 1 (transformative purpose): The original recording was created for entertainment; our use is pedagogical, illustrating harmonic progression. Factor 2 (nature of work): While the recording is creative, the pedagogical purpose transforms it. Factor 3 (amount): 10 seconds of 3-minute recording is appropriate to illustrate specific concept without substituting for full recording. Factor 4 (market effect): Excerpt is insufficient for market substitution; students seeking full recording must purchase/stream separately. In balance, factors support fair use determination.”
Phase 4: Implementation—Signaling Fair Use
Step 4.1: Choose Your Signaling Approach
The Code of Best Practices recommends making clear acknowledgment when inserts rely on fair use. This transparency enables downstream users to understand and extend your fair use choices.
Option A: Indirect Acknowledgement
What It Is: Front-matter notice in OER explaining general fair use reliance
Example:
“Unless otherwise indicated, third-party texts, images, and other materials quoted in these materials are included on the basis of fair use as described in the Code of Best Practices for Fair Use in Open Education.”
Advantages:
- Simpler, less labor-intensive
- Educates readers about fair use as community practice
- Allows downstream users to apply fair use principle themselves
- Works well for OER with many fair use inserts
When to Use: Large projects with multiple fair use incorporations; assume audience understands fair use principle
Option B: Direct Acknowledgement
What It Is: Label each fair use insert individually
Examples:
- Narrative: “This photograph, from [SOURCE], is included on the basis of fair use to illustrate photographic composition.”
- Symbolic: Place [F] or circled F next to item with explanatory footnote
Advantages:
- Very explicit; no ambiguity about which inserts are fair use
- Educates readers about fair use specifically
- Helps downstream adapters understand your rationale
- Demonstrates careful analysis
Disadvantages: Labor-intensive for many insertions; can clutter document
When to Use: Small projects; materials where downstream users particularly benefit from understanding fair use rationale; educational focus on copyright
Option C: Hybrid Acknowledgement
What It Is: General indirect notice + specific direct labels for key items
Implementation:
- Include front-matter notice explaining fair use generally
- Identify each “key” insert with direct label and perhaps reference to Code principle
- Other fair use items rely on general notice
Example:
- General notice: “Unless otherwise indicated, inserts are included under fair use.”
- Key item label: “[F—Principle B: Illustration] This map, from [SOURCE], illustrates territorial expansion.”
- Routine item: Just [F] symbol or no special marking
Advantages:
- Balances transparency with workload
- Emphasizes important fair use choices
- Educates about Code categories
- Practical for most projects
Disadvantages: Requires judgment about which items need direct labeling
When to Use: Most OER projects; balanced approach
Recommendation: Hybrid is optimal for most educators—general notice maintaining transparency while direct labels emphasize pedagogically important uses.
Step 4.2: Include Complete Attribution
For every fair use insert, provide:
Required Attribution Elements:
- Creator/Author name (or “[Unknown]” if unavailable)
- Title of work (or descriptive title if unavailable)
- Publication date (or year of creation)
- Source (publication, URL, DOI)
- Copyright holder (if different from author)
- Fair use basis (optional but recommended)
Example Attribution:
“Photograph by Lewis Hine, ‘Child Workers in Alabama Cotton Mill,’ 1913. Library of Congress, Prints and Photographs Online Catalog. Included under fair use principles to illustrate historical working conditions during early industrial era.”
Why Attribution Matters:
- Ethically correct regardless of copyright status
- Enables downstream users to find and verify sources
- Demonstrates good-faith, careful analysis
- Helps courts understand your reasoning if challenged
Phase 5: Documentation and Record-Keeping
Step 5.1: Create Fair Use Checklist
Maintain a detailed record for each copyrighted material incorporated:
Minimal Documentation:
- Work title and source
- Fair use analysis (brief)
- Signaling approach used
Comprehensive Documentation (Recommended):
| Section | Information |
|---|---|
| Project Information | OER title, instructor/author, date of analysis |
| Source Material | Title, author, date, copyright holder, type, URL |
| Learning Objective | What learning goal does this serve? |
| Transformative Use | How is the use transformative? Why is it necessary? |
| Portion Used | Exact amount (pages, seconds, percentage) |
| Amount Justification | Why this amount is necessary; why not less |
| Market Impact | Will this compete with original’s market? Why/why not? |
| Accessibility Elements | Alt text provided? Captions/transcripts? Format adjustments? |
| Attribution Statement | Full attribution as it appears in OER |
| Signaling Approach | Indirect/direct/hybrid; where signaling appears |
| Peer Review | Who reviewed this analysis? When? |
| Final Determination | Clear Fair Use / Likely / Uncertain / Probably Not |
Step 5.2: Store Documentation Centrally
Implementation:
Storage Location:
- Shared folder (Google Drive, Dropbox, institutional server)
- Version control enabled (track changes over time)
- Backup copies in multiple locations
- Access available to copyright office for transparency
Naming Convention: [CourseTitle]_[MaterialTitle]_FairUseAnalysis.pdf
- Example:
American_History_101_Hine_Child_Labor_Photo.pdf
Digital Tools:
- Google Forms (collect responses; auto-creates spreadsheet)
- Google Sheets (collaborative spreadsheet with multiple contributors)
- Excel/LibreOffice (local spreadsheet with version history)
- Institutional copyright management tools
- LibGuides (institutional guides with embedded checklists)
Organization:
- Sort by OER project/course
- Cross-reference with actual OER materials
- Enable searching by source, author, or principle
Access:
- Share copies with institutional copyright office
- Make accessible to other OER creators (anonymized)
- Maintain for institutional records
Step 5.3: Conduct Annual Review
Every 1-2 academic years, conduct audit of all copyrighted materials:
Review Checklist:
| Task | Frequency | Purpose |
|---|---|---|
| Remove obsolete content | Annually | Delete broken links; remove dated materials |
| Reassess analyses | Annually | Has copyright law changed? New court precedents? |
| Verify platform compliance | Annually | TEACH Act requirements for LMS delivery; accessibility |
| Update permissions | As needed | CC licenses may change; copyright holders may revoke permission |
| Document all changes | Per change | Keep records of why content was revised |
| Consult copyright office | Annually | Check institutional policy updates; seek guidance on new scenarios |
What to Watch For:
- Copyright holder takedown notices (respond promptly; remove material if necessary)
- New copyright law or court decisions affecting your analysis
- Changes in how material is used (adaptation might trigger new analysis)
- Accessibility concerns identified by users
- Links that no longer work (update or remove)
Phase 6: Institutional Support
Fair use thrives when educators have institutional backing and resources:
Step 6.1: Coordinate with Copyright Office
Actions:
- Share fair use analyses with institutional copyright officer for feedback
- Request written institutional support for your determinations
- Maintain collaborative relationship (not adversarial)
- Ask about institutional insurance coverage for fair use reliance
Benefit: Institutional backing dramatically increases educator confidence and legal defensibility
Step 6.2: Provide Copyright Education
Workshops and Training:
- Offer sessions on fair use analysis for faculty creating OER
- Provide video walkthroughs of fair use determination process
- Share successful examples (anonymized) from your institution
- Create written guides and templates
Peer Review Process:
- Encourage faculty to review each other’s fair use analyses
- Foster shared learning and professional judgment
- Build community of practice around fair use
Benefit: Educated faculty make better fair use decisions; confidence spreads
Step 6.3: Develop Institutional Policy
Written Policies Should Address:
- Institution’s commitment to supporting fair use for educational purposes
- Clear procedures for fair use analysis and documentation
- Framework for fair use determination (checklist, tools)
- Statement that institution will back reasonable fair use decisions
- Process for handling copyright disputes or concerns
- Support available (legal review, copyright office consultation)
Benefit: Clear policy signals institutional commitment; reduces individual educator anxiety
Applying the Code’s Principles in Practice
Once you’ve analyzed the four factors, the Code of Best Practices provides four specific Principles reflecting consensus scenarios. Use these to refine your analysis:
Principle A: Using Inserts as Objects of Criticism and Commentary
When Applicable:
- Analyzing poems, films, advertisements, documents
- Students practicing critical skills directly engaging source material
- Literature courses examining texts, media literacy analyzing media
Key Fair Use Supports:
- Restriction to materials being directly examined (not auxiliary materials)
- Inclusion of guidance helping students analyze (annotations, questions)
- Appropriate amounts (entire work acceptable for analysis)
- Range of sources; avoidance of repetition
- Clear attribution
Hard Case: Creating OER anthology of poems—blurs line between criticism-dependent use and collection. Requires careful analysis of whether work is primarily analytical or primarily collection
Principle B: Including Inserts for Illustration
When Applicable:
- Using authentic photographs to illustrate historical events
- Film clips demonstrating cinematographic techniques
- Documents exemplifying primary source materials
- Real-world examples enriching abstract concepts
Key Fair Use Supports:
- Explanation of pedagogical significance (why this image matters)
- Not exclusively decorative (integral to teaching, not just aesthetic)
- Appropriate amount (entire photograph typically acceptable)
- Avoidance of redundancy (don’t repeatedly use same source)
- Attribution required
Hard Case: Using famous photograph or commercial image with loose connection to pedagogy. Requires strong “nexus” between image and learning objective
Principle C: Incorporating Content as Learning Resource Materials
When Applicable:
- Primary sources for students to practice analysis
- Authentic materials for skill-building (reading Spanish literature in language course)
- Real scientific papers for learning research methodology
- Contemporary media as learning material (current advertisements analyzing marketing)
Key Fair Use Supports:
- Contextual scaffolding (glossaries, study questions, explanatory notes)
- Pedagogical value clear and substantial (not just entertainment)
- Appropriate amount (entire short story yes; entire novel no)
- Primary sources preferred over simplified versions
- Range of sources; appropriate selection
Hard Case: Entire contemporary popular culture work (full music video, complete advertisement campaign) requires especially strong pedagogical justification
Principle D: Repurposing Pedagogical Content from Existing Materials
When Applicable:
- Extracting useful problem sets from out-of-print textbook
- Adapting organizational structure from older course materials
- Borrowing learning activities from superseded materials
- Transforming professional documentation into pedagogical tool
Key Fair Use Supports:
- Identification of what copyright actually protects (idea/expression distinction)
- Specific explanation of teaching value each borrowed element provides
- Clear justification that OER does NOT substitute for original
- Diversity of source materials
- Clear attribution
Hard Case: Legacy material still available for licensing. Copyright holder’s availability of licensing weighs against fair use. Orphan works (copyright holder unknown) weigh in favor
Making Fair Use Practical
Applying the Code of Best Practices in Fair Use for Open Educational Resources transforms abstract legal doctrine into practical workflow. By systematically working through preparation, four-factor analysis, synthesis, implementation, documentation, and institutional support, educators can make confident decisions that prioritize pedagogical quality while maintaining legal defensibility.
The process is not burdensome. A fair use checklist becomes routine, taking perhaps 10-15 minutes per material incorporated. Institutional support—a clear policy, copyright office guidance, and peer collaboration—makes the process collaborative rather than isolating.
The fundamental insight animating this approach is that good pedagogy is good fair use practice. When educators ground fair use decisions in clear learning objectives, analyze transformative purpose thoughtfully, use appropriate amounts, and consider market impact honestly, they are engaging in exactly the professional judgment the Copyright Act anticipated. Fair use was designed for educators; applying it systematically is using your rights as intended.