Submission Date:
Question:
A couple committees at the college my library is at want to present copyrighted films in the theatre as part of an educational film series. They are under the impression that as long as there is an "educational component" to the screening that it falls under fair use.
The showings would not be part of a course, although there are brief lectures by Faculty introducing films and related concepts. The screenings are open to the public. No admission is charged.
Does this fall under fair use?
Answer:
The short answer is: no, this scenario is not a “fair use.”
But that’s not the end! “Fair use”—which is found in Section 107 of the Copyright Act—is not the only exception to copyright infringement.
There is another way. Section 110 of the Copyright Act provides:
[T]he following are not infringements of copyright:
(1)performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made[.] [emphasis added].[1]
In the cold, scary, expensive world of copyright infringement, section 110 is breath of fresh air. Unlike section 107, which creates a four-factor “fair use” formula so esoteric, you can consult three lawyers and get six opinions, Section 110’s exceptions are well-defined and clear. [2]
So, can a gathering of instructors and students in a theater on a college campus meet these clear 110 requirements? Yes!
But.
The problem is, as used in 110, the term “students” is not broad enough to apply to the member’s precise scenario. While the 110 term “instructors” includes guest lecturers (if their instructional activities remain confined to the class location and syllabus), the 110 term “pupils” is generally regarded as meaning only enrolled members of a class. [3] In addition, it is best if the syllabus for the course, whether for credit or a certificate, supports a conclusion that the viewing context really is a class—not recreation (even if it is enlightening recreation) masquerading as academia. 110 is a powerful exception to infringement, but it has its limits.
107 and 110 exceptions to infringement can sometimes get conflated. Here are some examples of how they do (or do not) apply, using one of my new favorite movies:
1. “Black Panther” uncut and shown on campus as part of an open-to-all, educational film series about would not be allowed under either fair use or 110. Any such showing must be licensed.
2. “Black Panther” partially evoked in very small, carefully-chosen selections for an open campus forum on “Women in Major Motion Picture Fight Scenes” could be allowed under “fair use,” but film stills and excerpts must be limited to only what is needed to make a point.
And finally…
3. “Black Panther” shown in its entirety to students enrolled in a “Comics and Society” class would be allowed under 17 U.S.C. 110 (1)…so long as the movie genuinely contributes to the substance of the course, is shown only to enrolled students, and the copy they watch is not pirated.
What’s the take-away? Educators should apply “fair use” when needed, but remember that section 110(1) creates exceptions to infringement, too. It’s no vibranium[4], but is a powerful part of an educator’s arsenal.
[1] Care must be taken to ensure there is no re-transmission of the content. Another section of 110 does allow for limited re-transmission for online learning, but to qualify, the institution must adhere to all TEACH Act requirements.
[2] There are more than this, and of course, they all come with rules. Read the statute before relying on 110 to protect you from infringement.
[3] See House Report 94-1476
[4] Special rare metal in “Black Panther;” also, what Captain America’s shield is made from.
