Best Practices Help Youth Media Educators Exercise the Right to Fair Use
More than ever before, learners need to develop the ability to use language, print, sound, visual and digital media for cultural participation, self-expression, communication, advocacy and citizenship. This is an especially important subject for youth media educators, especially when young people mash up and remix media in radio, video, online and in print.
In recent years, remix practices have gained increased recognition as powerful tools for teaching and learning in the youth media field. For youth media educators, students’ fascination with (and interest in commenting upon and critiquing) mass media and popular culture can be a large part of the draw of participating in a youth media program. Re-using media is a means to strengthen critical analysis and heighten awareness of media’s many creative forms and the cultural, political, economic and social functions of mass media, popular culture and digital media in contemporary society.
Producers and educators in the youth media field need to have a sound understanding of copyright and fair use—a fundamental part of our legal system. Along with my colleagues Pat Aufderheide from the Center for Social Media at American University and Peter Jaszi from American University’s Washington College of Law, and with support from the John D. and Catherine T. MacArthur Foundation, I have spent the last eighteen months working with media literacy educators to develop the Code of Best Practices in Fair Use for Media Literacy Education (The Code).
In November 2007, my colleague Katie Donnelly, a Research Associate at Temple University’s Media Education Lab, wrote a Youth Media Reporter article on the progress of the creation of the Code . At that point in time, we had conducted initial research, outlined in our report, The Cost of Copyright Confusion for Media Literacy, which described the results of in-depth interviews with 63 media educators who experienced fear and confusion around the subject of copyright. We had also facilitated three small group meetings with media literacy educators, including K-12 educators, university professors, and youth media professionals, in New York City, Boston, and San Francisco. In these sessions, participants discussed hypothetical scenarios involving the uses of copyrighted materials in media literacy education to identify the principles and limitations articulated in the Code.
Since that time, we have conducted seven additional convenings in cities across the country and have found that there is consensus among educators about what constitutes fair use. We then teamed up with leading organizations—including the National Council of Teachers of English (NCTE), the National Association for Media Literacy Education (NAMLE, formerly AMLA), the Action Coalition for Media Education (ACME), the Visual Communication Studies Division of the International Communications Association (ICA) and the Media Education Foundation—and used the themes that emerged in our meetings to create the Code. Prior to its publication, the Code was rigorously reviewed by a committee of legal scholars and lawyers expert in copyright and fair use.
The creation of the Code was necessary in order to help media literacy educators understand the concept of fair use and how it applies to teaching and learning. For example, few educators are aware that in recent years, courts have consistently recognized that transformative uses are fair uses. Specifically, 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 fair use. Fair use embraces the modification of existing media content if it is placed in new context.
While teachers at accredited educational institutions have broad rights to use copyrighted materials in face-to-face instruction under Section 110 of the Copyright Act of 1976, youth media educators who work for non-profit organizations are not entitled to this exemption. That’s why the doctrine of fair use is crucially important to youth media educators.
Fortunately, the doctrine of fair use, part of the Copyright Act of 1976, states that people have a right to use copyrighted materials freely without payment or permission, for purposes such as criticism, comment, news reporting, teaching, scholarship, and research. The Code can help increase educators’ and students’ knowledge and confidence in applying fair use principles to their work.
In the Code we have found that educators can, under some circumstances:
• Make copies of newspaper articles, TV shows, and other copyrighted works, and use them and keep them for educational use.
• Create curriculum materials and scholarship with copyrighted materials embedded.
• Share, sell, and distribute curriculum materials with copyrighted materials embedded.
And learners can, under some circumstances:
• Use copyrighted works in creating new material.
• Distribute their works digitally if they meet the transformativeness standard.
Youth media educators are most concerned about students’ ability to use of copyrighted materials in their own creative productions. From the Code:
“Because media literacy education cannot thrive unless learners themselves have the opportunity to learn about how media functions at the most practical level, educators using concepts and techniques of media literacy should be free to enable learners to incorporate, modify, and re-present existing media objects in their own classroom work…However, students’ use of copyrighted material should not be a substitute for creative effort. Students should be able to understand and demonstrate, in a manner appropriate to their developmental level, how their use of a copyrighted work repurposes or transforms the original…”
To help youth media producers learn, understand, and apply their rights under the doctrine of fair use, we recently created lesson plans, videos and two “Schoolhouse Rock” style music videos for educators and learners.
One activity in the plan invites students to consider the meaning of transformativeness by making a poster that incorporates copyrighted materials from magazines, transforming parts of the magazine by creating a new message that repurposes or adds value to the original copyrighted work. Learners consider the following questions:
• What is the context of the original material? What is the context of the new material?
• Who is the audience for the original material? Who is the audience for the new material?
• What is the purpose of the original material? What is the purpose of the new material?
Students recognize that language, images on the page, design elements, or other parts of the magazine all can be transformed for many new creative purposes. In this activity, students recognize that using disproportionately large excerpts of copyrighted work with little or no modification is likely not to be a fair use. The use of large excerpts of a copyright work for the same purpose as the original is likely not to be a fair use, either. When students use such a reasoning process when making use of copyrighted material, they develop critical thinking skills and learn to respect the rights of both authors and users.
Using the Code, youth media producers can claim fair use by learning how to articulate their reasoning using concepts like context, audience, meaning, proportionality, and purpose. They discover that the concept of transformativeness needs to be flexibly applied in order to account for the unique context of any particular use.
As Peter Jaszi puts it, “Fair use is like a muscle—it needs to be exercised.” Youth media educators can and must exercise fair use when incorporating copyrighted materials into teaching and learning. Young people must be encouraged to make their own reasoned conclusions about what qualifies as transformative and fair use.
Under the law of copyright, the doctrine of fair use enables educators to unleash the full creative power of digital media for teaching and learning. The “best practices” approach can help the youth media community to better understand and advocate for their fair use rights under the law.
By helping educators better understand copyright and fair use, it counteracts much of the misunderstanding that has grown up around this topic over the past few years. In recent years, various guidelines—the results of negotiated agreements that do not have the force of law—have confused and frightened educators, who feel they must have their students conform to arbitrary rules about use of copyrighted materials (such as using only 30 seconds of audio, or only 10% of a poem.)
Instead of adhering to these kinds of rigid rules, the Code encourages educators to help students reason through fair use, as the U.S. Constitution originally intended. The Code helps increase confidence among youth media educators who incorporate the use of copyrighted materials into a variety of innovative teaching and learning practices, including practices that make use of remix and approaches that benefit from the transformative use of copyrighted works.
Renee Hobbs is Professor of Communication in the Department of Broadcasting, Telecommunications and Mass Media and Founder of the Media Education Lab at Temple University’s School of Communications and Theater.
Center for Social Media, Media Education Lab & Washington College of Law. (2008). Code of best practices in fair use for media literacy education. Washington, DC: American University. Available:
Donnelly, K. (2007, November). Using media, fair use, and copyright. Youth Media Reporter. http://www.youthmediareporter.org/2007/11/using_media_fair_use_and_copyr.html
Hobbs, R., Jaszi, P. & Aufderheide, P. (2007). The cost of copyright confusion for media literacy. Washington, DC: American University. Available: http://www.centerforsocialmedia.org/resources/publications/the_cost_of_copyright_confusion_for_media_literacy