Organizing Your Message: Copyright and fair use

Fair Use: The presenter's quicksand

"Fair use" is the shield most of us try to hide behind if we're accused of violating copyright law. This is the exception written in to the U.S. Copyright Act, the part that lets you, under certain circumstances, use copyrighted material without the owner's permission.

But as guidelines go, fair use is quicksand for presenters. And it disappears in the setting we're most likely to use material -- the for-profit business world.

"Fair use in copyright law is somewhat ambiguous," says Tom W. Bell, a law professor at Chapman University in Orange, Calif., who specializes in intellectual property. Even the U.S. Copyright Office doesn't provide precise guidelines, he says. "There are no specific number of words, lines or notes that may be safely taken without permission."

Briefly, fair use takes four things into consideration: The nature of the original work; the purpose to which you want to put the material; how much you want to use, and how substantial a portion of the original it is; and how your use will affect the copyrighted work's potential market. (Stanford University has a useful Web site on the subject at http://fairuse.stanford.edu.)

But many people have thought they were falling within the guidelines of fair use, only to be rudely (and expensively) brought up short. Remember that fair use is almost always an extremely short excerpt, and always attributed. You might be able to cite a paragraph from Stephen Covey's The 7 Habits of Highly Effective People without permission, but not so a full chapter. And you can't photocopy "select" pages from a book or magazine article and include them in handouts or materials without permission.

If, by using the material, you're depriving the copyright owner of paying readers or listeners, this puts you in further jeopardy. Photocopying an entire article from Fortune magazine and distributing it as part of your handouts, for instance, is clearly taking money out of Fortune's pocket. That's why most magazines require you to buy a site license to photocopy articles.

In academia, fair use is a little more liberal, as long as you're using material strictly for research, scholarship or nonprofit education. But as professors have found to their sorrow, you can't hand out mounds of photocopies to paying students without written permission or a license. Likewise videos: You don't need a license to show consumer videos (those sold or rented for use at home) in certain narrowly defined "face to face teaching activities," according to the Copyright Act. But interpretations are strict. A day-care center, for example, needs a public-performance license to show a "Barney" video.

Using video clips in corporate (for-profit) training or presentations, even if they are educational, also qualifies as public showing, requiring a license or written permission. Bob Gehrke says his watchdog group, the Training Media Association, doesn't recognize any fair use of copyrighted video in corporate settings.

"A lot of trainers try to hide behind fair use, but it doesn't apply in the for-profit training world," he says.

In fact, one of the biggest errors presenters make is to assume that because they don't charge for a presentation, they can freely use copyrighted material. "Training in for-profit companies isn't the same as a nonprofit academic setting," says Dave Ferguson, a sales and technical trainer at GE Information Services in Rockville, Md., who's long been a student of copyright law. "Whether or not you charge for your reuse of the content is immaterial."

In short, if you're in doubt, seek permission or check with an attorney before borrowing copyrighted work. And if you let fair use be your umbrella, be prepared to defend yourself in court.

* Dave Zielinski