Fair use doctrine operates not as abstract legal principle but as practical tool enabling creation of high-quality open educational resources across disciplines. Real-world OER projects demonstrate how educators confidently incorporate copyrighted materials—complete films for film-history analysis, audio clips for music appreciation, photographs for composition instruction, primary documents for historical understanding—by grounding their decisions in clear pedagogical purpose, transformative analysis, and appropriate scope. From the American Yawp’s carefully curated primary source collection enriching history education, to jazz appreciation MOOCs analyzing authentic music excerpts, to women’s studies courses critiquing commercial media, these examples illustrate how fair use enables OER creators to achieve educational excellence without sacrificing legal defensibility. Understanding how others have successfully navigated copyright while maintaining pedagogical quality provides essential guidance for educators creating OER in their own disciplines.
Case Study Framework: Four Real-World Applications
Recent comprehensive analysis of fair use in online learning environments documents four detailed case studies illustrating how educators successfully apply fair use analysis across diverse multimedia contexts:
Case 1: Full Films for Film History and Critical Analysis
The Scenario: A film history professor teaching a summer session online course needed to incorporate complete documentary films as central course materials. The course’s pedagogical objective required students to analyze cinematography, directorial choices, historical context, and cultural significance—work impossible without direct engagement with the films themselves.
The Fair Use Analysis: While incorporating entire works normally weighs against fair use, the professor’s analysis demonstrated transformative purpose: the original documentary films were created for entertainment or informational purposes, while their incorporation into the course made them objects of detailed critical analysis and scholarly discussion. Rather than consuming films for their narrative entertainment value, students examined technical elements, editing decisions, and cultural representation. The pedagogical framing—with instructor commentary, discussion prompts, and analytical scaffolding—added substantial new meaning to the source materials.
Access controls reinforced the fair use determination. The institution restricted streaming to enrolled students through a secure learning management system, disabled downloads, and prevented sharing beyond the course context. This technical limitation ensured the materials served the educational class rather than becoming substitutes for commercial streaming access.
Market impact analysis supported the fair use position: students typically do not purchase documentary films for personal collections; the course access functionally paralleled how traditional educational institutions provided access through library reserves and physical screenings. The fair use incorporation did not compete with or displace sales of the original films.
Outcome and Significance: The professor created an exceptionally rich educational experience, providing authentic primary materials for film analysis without licensing fees that would have been prohibitively expensive. The fair use analysis supported the educational mission while remaining legally defensible. This example illustrates a fundamental principle: transformative educational purpose—analyzing rather than consuming—enables incorporation of works that might seem to weigh against fair use when considering raw amount of material used.
Case 2: Brief Audio Clips Illustrating Musical Concepts
The Scenario: A jazz appreciation MOOC (massive open online course) required concrete musical examples to illustrate specific pedagogical concepts: chord progressions, improvisation techniques, rhythmic patterns, and harmonic relationships.
Fair Use Analysis: The instructor selected brief excerpts—typically 7 to 10 seconds—from seminal jazz recordings. These clips were embedded directly within lecture materials accompanied by scholarly commentary explaining the specific musical elements being illustrated. Each clip served as object of critical analysis rather than as entertainment.
Amount of material used was carefully limited to under 10% of each complete track, considered appropriate to the illustrative function. The brief duration meant students experienced enough musical context to understand the concept but not enough to substitute for purchasing or streaming the full recordings.
Market effect strongly favored fair use: the brief clips had no realistic potential to displace sales or streaming revenue. A student wishing to hear the complete jazz recordings would need to purchase or stream them separately; the MOOC excerpts did not satisfy that market demand.
Documentation proved essential. The instructor and institutional legal advisors carefully recorded the pedagogical purpose, exact clip durations, specific concepts being taught, and fair use analysis. This documentation provided an audit trail supporting the determination and enabled institutional confidence in the fair use position.
Outcome and Significance: The MOOC achieved its pedagogical objective—teaching concrete musical understanding through authentic examples—while respecting copyright principles. Fair use permitted the use of commercially valuable recordings without licensing fees that would have been impossible for a nonprofit educational initiative to afford at scale across thousands of students. This example demonstrates how fair use enables education to use “the best primary materials” rather than settling for inferior alternatives.
Case 3: Selective Video Excerpts for Critical Media Literacy
The Scenario: A women’s studies course on gender representation in media required students to analyze actual commercial advertising and media content. The educational goal was developing critical media literacy—understanding how gendered stereotypes are constructed and reinforced through media messaging. The instructor identified the documentary film Killing Us Softly 4 as providing essential primary materials for this analysis.
Rather than screening the entire film, the instructor selected specific segments directly relevant to the course’s pedagogical objectives: advertisements demonstrating particular stereotyping techniques, scenes analyzing how media constructs ideals of beauty and femininity, and cultural context about the advertising industry.
Fair Use Analysis: These excerpts functioned as objects of critical analysis rather than entertainment. The course materials integrated video clips with critical discussion prompts, student reflection activities, and analytical frameworks grounded in feminist media criticism. Students were not passively watching the film; they were actively dissecting how media constructs gender.
Amount used was carefully calibrated to pedagogical necessity. Only segments essential to illustrate specific advertising themes or analytical points were included, not scenes selected for entertainment value. This distinction—that “essential to teaching specific concepts” differs from “more content is better”—proves critical to fair use analysis.
Controlled distribution reinforced the fair use position. Materials were accessible only through Brightspace (a learning management system) to registered students in the course, for the duration of the semester. This temporal and institutional limitation prevented the materials from becoming a free substitute for purchasing or accessing the documentary.
Outcome and Significance: The course achieved its pedagogical mission—teaching critical media literacy through direct engagement with authentic commercial media—while demonstrating respect for copyright holders’ interests. Fair use permitted the educational use without licensing fees or permission-seeking that would have complicated course development. This example illustrates how fair use supports critical pedagogy and student development of analytical skills that require engagement with real-world copyrighted content.
Case 4: Complete Photographs for Technical Instruction
The Scenario: A photography composition course required teaching students to analyze photographic technique: framing decisions, lighting choices, exposure management, and compositional elements. The instructor selected a professional news photograph—a wildfire smoke plume—to illustrate specific compositional and technical principles.
Fair Use Analysis: The crucial transformation was pedagogical repurposing. The original photograph was created as documentary journalism: capturing newsworthy events for informational purposes. The instructor repurposed this same image to serve an entirely different function—as instructional material analyzing photographic technique.
The entire image was necessary to the pedagogical purpose: cropping or partial display would undermine the analysis of compositional choices and spatial relationships. Fair use doctrine recognizes that “amount of material used” must be appropriate to the transformative purpose, not an absolute minimum. When teaching composition, the entire photographic frame is the relevant teaching unit.
Access controls were maintained. Materials were provided through the institution’s learning management system rather than publicly posted online. Students accessed them as course materials, not as standalone photographs available for reuse or distribution.
Market effect favored fair use: students were not substituting this photograph for purchasing the photographer’s original work or accessing the news source. The educational context created a different market function entirely.
Outcome and Significance: The instructor enabled hands-on instruction in critical analysis of photographic technique without licensing the original photograph or seeking permission. Fair use permitted incorporation of the professionally created source material that best served the pedagogical objective. This example demonstrates that fair use can encompass use of entire works when pedagogical transformation justifies this scope.
Major OER Initiative: The American Yawp
The American Yawp represents a comprehensive case study in how major open history textbooks incorporate diverse materials to achieve pedagogical excellence:
Overview and Scope: The American Yawp is a free, online, collaboratively built, peer-reviewed open American history textbook designed for college-level survey courses. Rather than a static product, it exists as a living document continuously updated and adapted by the collaborating community of historians.
Institutional and Pedagogical Design: Each chapter follows a coherent structure beginning with contextual overview, proceeding through thematically organized sections (typically 6 per chapter), and concluding with synthesis and primary source materials. This architecture reflects evidence-based pedagogy: narrative coherence, followed by opportunities for critical engagement with primary documents.
Primary Source Integration: A strength consistently noted by reviewers is The American Yawp’s carefully curated primary source collection. Rather than random excerpts, the primary sources are:
- Contextually integrated with specific learning objectives and chapter content
- Pedagogically scaffolded through introductory headnotes providing historical context enabling students to engage meaningfully with documents
- Diverse in perspective, showcasing competing viewpoints and the complexity of historical issues rather than presenting single narratives
- Engaging to students, selected for their capacity to prompt critical thinking rather than for their archival completeness
Reviewers report measurably improved student engagement. One instructor notes that “participation in my online discussion posts has risen” after adopting the primary source materials. Another observes using The American Yawp’s primary sources even when teaching from different texts: “I rarely feel the need to add alternatives in for my students and can adjust between different institutions in terms of reading load.”
Historical Approach and Equity: The textbook deliberately incorporates diverse perspectives often marginalized in traditional textbooks. Reviewers note its emphasis on “Latinx, African American, and Native American histories” providing “a much more balanced view of American history than many popular hardback textbooks”. The primary sources reinforce this commitment by foregrounding voices and perspectives beyond the dominant narrative.
Copyright Implications: While The American Yawp is itself an open educational resource (presumably licensed CC BY or similar), the developers made strategic choices about incorporating source materials. The primary source collection relies on materials that are either in the public domain (government documents, historical publications predating modern copyright) or appropriately excerpted under fair use principles. The decision to avoid “overburden[ing] students with hyperlinks or break[ing] narrative flow”—instead incorporating materials directly into the textbook—reflects understanding that stable, integrated resources serve accessibility and pedagogical goals better than linking out to external sites.
Sustainability and Adaptability: Because The American Yawp exists as an open resource, educators can adapt it for their specific contexts: translating selections, emphasizing particular themes, or adding discipline-specific applications. This adaptability is possible because the underlying open license permits modification—a capacity that proprietary commercial textbooks do not allow.
Broader Significance: The American Yawp exemplifies how fair use and open licensing work together. The textbook’s foundation is CC-licensed open content (narrative text, organizational structure), supplemented strategically by carefully selected primary source excerpts that are either public domain or incorporated under fair use. This approach enables creation of pedagogically superior materials not achievable through either framework alone.
Institutional Support and Copyright Management
University of Southern Queensland’s Copyright Tracker Model
The University of Southern Queensland provides an exemplar of institutional infrastructure supporting responsible copyright management in OER development:
Role and Responsibilities: Nikki Andersen, the institution’s Open Education Content Librarian, manages copyright compliance across open textbook projects through a centralized tracking system. Her responsibilities include:
- Identifying third-party content requiring copyright analysis
- Tracking copyright status (public domain, CC-licensed, copyrighted materials requiring fair use or permission analysis)
- Suggesting alternative openly-licensed or public domain replacements when copyrighted materials pose challenges
- Managing the permission-seeking process when licenses are required
- Verifying license compatibility (ensuring CC-SA materials don’t mix with CC-NC without careful carving out)
- Maintaining accurate attribution throughout materials
Infrastructure and Process: Rather than making copyright decisions ad hoc or leaving them to individual authors, the institution created a copyright tracker tool enabling systematic documentation of every content element’s copyright status and licensing approach. This infrastructure approach demonstrates that institutional support—not just individual educator vigilance—is necessary for sustainable OER copyright compliance.
Significance: The model illustrates that major OER publishers invest significantly in copyright expertise and systematic management. Authors can focus on pedagogy while copyright specialists ensure legal compliance. This suggests that educators developing OER should similarly seek institutional support rather than navigating copyright independently.
Domain-Specific Examples
Scientific and Biological Illustration Challenges
Biology and life sciences OER present particular copyright challenges because effective teaching requires numerous illustrations demonstrating anatomical structures, cellular processes, and experimental techniques. A biology educator writing a free open textbook documented the specific challenges:
The Problem: Scientific journal articles and research publications contain illustrations essential to biology education—electron microscope images, anatomical diagrams, molecular structure visualizations. Recreating these from scratch requires substantial expertise, and “hand recreation” does not solve copyright problems if the resulting image is “substantively the same” as the original.
Rights Holder Complexity: Copyright ownership often differs from intuitive assumptions. While publishers hold copyright on journal articles as wholes, individual image creators (photographers, illustrators, researchers) often retain copyright to specific figures. Identifying the actual rights holder requires researching beyond the publisher.
Permission Seeking: Rather than blanket clearances available from publishers, copyright compliance typically requires negotiating permissions on a per-figure, per-paper basis—a labor-intensive process. Creators must contact the actual copyright holder (often the original researcher or illustrator), explain the intended use, and obtain specific permission.
Fair Use Considerations: The status of fair use for scientific illustration in free textbooks remains somewhat unclear. Non-commercial status supports fair use arguments, but the nature and amount of material used requires careful analysis. Creating free educational materials does not automatically trigger fair use for reproducing copyrighted scientific figures.
Strategy: The most successful approach combines multiple tactics: using freely available public domain scientific data and images, seeking specific permissions from cooperative researchers and publishers, and carefully applying fair use analysis where appropriate. This domain exemplifies how fair use exists not as substitute for permission-seeking but as supplement when permissions are unavailable.
MIT OpenCourseWare’s Ongoing Copyright Navigation
Even leading open education initiatives encounter persistent copyright challenges:
Ownership Structure: MIT OpenCourseWare’s intellectual property policies specify that faculty retain ownership of materials prepared for OCW, consistent with MIT’s general textbook authorship policies. This faculty ownership benefits open education by placing materials in the public sphere rather than creating new institutional IP claims.
Persistent Restrictions: Despite OCW’s open education mission, “course packs or reading materials used in many MIT courses contain proprietary and copyrighted work that MIT faculty and students are only permitted to use in direct course teaching”. Even MIT—with sophisticated legal and copyright expertise—encounters situations where copyrighted materials remain locked behind institutional access restrictions.
Strategic Implication: MIT’s experience demonstrates that comprehensive copyright compliance sometimes requires retaining traditional institutional access restrictions alongside open, publicly available materials. Perfect openness proves infeasible when educational materials necessarily incorporate licensed content. This reality underscores why fair use remains essential: even institutions with resources to negotiate multiple licenses encounter situations requiring fair use reliance.
Practical Implementation Framework
Based on real-world experience from successful OER projects, the following framework guides responsible copyright management:
Step 1: Open-First Approach – Begin by identifying openly licensed (preferably CC BY) materials meeting pedagogical objectives. These provide legal certainty and full 5R permissions.
Step 2: Supplementary Fair Use – Where open-licensed alternatives prove pedagogically inadequate, identify copyrighted materials suitable for fair use incorporation. Document the fair use analysis: transformative purpose, appropriate amount, and market effect.
Step 3: Permission-Seeking – When fair use analysis suggests risk or when institutional policy prefers additional certainty, seek permission from copyright holders. Maintain records of permission requests and responses.
Step 4: Clear Signaling – Indicate licensing status for each material component through:
- Front-matter notices indicating fair use reliance (if applicable)
- Direct labels for each CC-licensed component
- Attribution information for all copyrighted materials (required regardless of fair use or licensing status)
- Links to full license deeds for CC-licensed content
Step 5: Institutional Documentation – Maintain centralized records of:
- Fair use checklists for each incorporated copyrighted material
- Permission emails and licensing agreements
- Attribution details for all source materials
- Audit records for institutional copyright office
Step 6: Regular Review – Establish annual review cycles to:
- Remove broken links
- Reassess fair use analyses based on evolving case law
- Update license information as copyright holders grant or revoke permissions
- Verify platform compliance with TEACH Act digital delivery requirements
Step 7: Educate Your Audience – Include within OER a “Copyright and Licensing” section explaining:
- Which materials are openly licensed (with links to license deeds)
- Which excerpts rely on fair use (with rationale if space permits)
- How downstream users can reuse, remix, or share the OER
- Attribution requirements for users adapting the materials
Real-world OER examples demonstrate that fair use operates as practical, reliable tool enabling creation of pedagogically superior open educational resources. From film-history courses analyzing complete documentaries, to jazz appreciation MOOCs teaching authentic music, to women’s studies courses critiquing commercial media, to history textbooks incorporating primary sources, these applications illustrate consistent principles: transformative educational purpose, appropriate scope, controlled distribution, and documentation supporting the fair use analysis.
The American Yawp and similar major OER initiatives show that institutional support—copyright specialists, systematic tracking tools, and clear policies—enables scaling fair use principles beyond individual educator decisions. Even institutions like MIT with extensive legal resources encounter copyright realities requiring fair use reliance, underscoring the doctrine’s essential role in educational access.
Educators creating OER need not choose between legal compliance and pedagogical quality. By understanding how others have successfully applied fair use—grounding decisions in clear transformative purpose, maintaining appropriate scope, documenting analysis, and signaling to downstream users—creators can develop open educational resources that serve learners excellently while remaining legally defensible.