Fair Use for Public School Teachers

fair use in the classroom

Cross-posted on KitchenTableMath.

A month ago I wrote about a Florida A&M University law professor’s decision to use questions out of a test-prep guide for a significant portion of the final exam. In Using Test Questions from Prep Guides – Ethical, Legal? I said:

“Reproducing questions from review books happens frequently in New York. We have state-issued curricula for most all high school subjects with a statewide final exam. Barron’s publishes review books for these state exams and it is very common for teachers to make unit tests from questions taken directly from the review books. No one really complains [other than that it suggests a classroom teacher is “teaching to the test”], but I find it highly unprofessional and unnecessary at the post-secondary and especially at the law school level.”

I wanted to elaborate a bit on the rules by which New York State teachers – and those nationwide – must abide when using someone else’s material.

There are four basic conditions to meet fair use requirements [from the House Judiciary Subcommittee]:

1. Brevity – a single poem, passage, short story, etc. is used;

2. Spontaneity – the material is included close to the time when the material is used;

3. Cumulative use – “generally no more than nine occasions per teacher per term”

4. Notice of use – credit to the author must be given with year of publication and appropriate copyright symbol.

Brevity. The intent of fair use is, generally, grounded in brevity. Teachers [and anyone creating instructional content] depends on passages, illustrations and small pieces of work to develop curriculum. Most K-12 teachers don’t have a problem here.

Spontaneity. I find this a bit troubling. How many times have we chided students for leaving their work until the last minute? But if you’re a teacher in New York, go for it – your use of copyrighted material is fair if you put yourself in a position that necessitates a shortcut.

Cumulative use. I’ve got to admit, I’m a bit puzzled by 9 uses as a threshold – it seems arbitrary, though I doubt this is ever policed. How one could use the same material 10+ times in a term and still profess that one is advancing a student’s course of study at a reasonable pace is beyond me.

Notice of use. This is where teachers usually stumble – they just don’t bother to credit the original authors. But satisfying point #4 is easy provided that you’re committed to respecting the intellectual property of others. Author’s name, the larger source, publication date, copyright symbol – the end.

I don’t expect teachers or anyone else to document ad nauseam every bit of intellectual property they decide to use [it's faddish in the ed-tech community to cite image sources to the nth degree on blogs, something which I don't bother to do unless it's real intellectual property/art]. But showing the most basic respect for another’s work by labeling it properly is a necessity – it shows our students that their future work will be credited and that their teacher is a competent scholar.

Browse a detailed summary of Basic Books, Inc. v. Kinko’s Graphics Corp. if you’re so inclined. And if you can’t be bothered, at least take those four baby steps that fair use requires. It isn’t hard.

6 Responses to “Fair Use for Public School Teachers”

  1. I know it’s not a perfect comparison, but this post reminds me of a question I recently encountered on Yahoo! Answers. I think it raises an interesting issue for teachers, so I hope you don’t mind that I’m sharing here. :)

    The student writes:

    “I have a teacher who constantly obsesses over the concept of plagiarism. She is constantly shoving the rules of plagiarism down our throats. She didnt even write a recommendation letter for a naval-academy-bound student who was required to have this teacher’s recommendation for entry….BECAUSE he copied a sentence off of sparknotes. After I made a collage she took 10pts off because I didnt cite the sources of my magazines! and now what do i find online?! A worksheet. yes, a simple worksheet…but not just ANY worksheet..OH NO. It was the same worksheet that she handed out to hundreds of students claiming it as her own. She didnt just print it out though. She changed one word in like every other sentence and she changed the font. than she wrote her name on it. is this something i should be a little upset about??….i mean….its a little hypocritical for my taste…”

    I have to say, my first reaction was to be thrilled that this student recognized and was upset by hypocrisy! :)

    I did answer this question by making sure the student didn’t accuse her teacher without knowing that (a) it wasn’t her own teacher who was plagiarized, (b) the teacher didn’t have permission (explicit or implied, since some teachers — like me — do post things for others to use freely and (c) that the addition of the teacher’s name wasn’t a claim of ownership, so much as it was an identifying mark to show that the sheet was for/from her CLASS.

    (I’m also kind of ashamed that I told the student she could go to her teacher and say, “I know why you’re always talking about plagiarism now. It must make you so mad that someone stole YOUR worksheet and put THEIR name on it!” and offer to defend the teacher’s honour by contacting this plagiarist on her behalf. . . but I’m human!) :)

    But, I think your post and this student’s question raises a very important issue of credibility and being a role model. I still do believe that education professions need to earn the respect of their students. With teens, you do this in large part by being consistent. It’s amazing how many teens will adapt to draconian teaching measures, as long as they are predictable. You’ll notice that this teen’s problem wasn’t with the teacher’s punitive actions themselves, but with the perceived hypocrisy of her actions.

    I’m not saying that educational professionals need to be saints or above reproach. But if you take a stand in front of your students, be sure it’s one you can live up to yourself. All teachers, by default, have to instruct their students about academic dishonesty, so all teachers have to take this seriously.

    But really, this just makes me wonder: do any teachers really think that their students
    (a) care that they use someone else’s worksheets? (so why not give the author proper credit)
    (b) respect a “good worksheet” the way another teacher would? (“Oh man, my teacher is soooo good. Look at this awesome worksheet she made!)

    Just some tangentially-related ramblings! Thanks for the post. I think the ease with which we can find, share and copy other’s work today requires that we consider academic plagiarism very seriously.

  2. Matthew says:

    Amen, sister.

    I laughed out loud at your suggestion that the student go to the teacher outraged that someone plagiarized the worksheet – I don’t think it’s inappropriate at all. I’m sure the teacher would react badly – and should feel shame, rightly – but it would be a stark, necessary reminder that one needs to exhibit the same respect for others that they’re demanding of their students.

    And, in short, no, I don’t think most teachers think students care about the sources of assignments/worksheets. But that shouldn’t matter – teachers need to care for them.

  3. Useful post, Matthew. I like the four steps we should all follow, both teachers and students. Sarah’s solution to the student’s problem is a good turn around. What a great story; I’m passing this one on, Sarah. Citing sources on a collage? Never even thought about that one. IMHO, I think the student should confront the teacher with the facts. It’s the age old problem of “Who will guard the guards?”.

  4. @ Matthew: I’m with you that the teacher should care about their handouts/worksheets. I would just be surprised if a teacher thought that quality material would necessarily earn her more “street-cred” with her students. So, why try to pass something off as your own when you could put a line of citation at the bottom, and half the kids won’t notice?

    @ Christina: I’m glad that the story will be passed along, if only to remind us all that we’re all human, we can be contradictory and we can make mistakes. If teachers can’t respect that about their students, then in turn the students will never respect that about the teachers. If teachers *go looking* for the worst in their students, then the students will seize every opportunity to find the worst in their teachers. It just seems to me that that’s no way to spend 6 – 8 hours of your day, for either party!

    @ both: OK, so now I don’t feel so bad for my proposed melodrama. Thanks for validating! :)

  5. Vera says:

    One important fact that you did not mention is that the Barron’s Review book (and the Prentice Hall Brief Review books) for all NYS Regents Science courses do not create their own questions. They simply take them from previous Regents exams, all of which are freely available on line from the state DOE. Therefore, there is no copyright attached to the exam questions published in the Barron’s books. Even the data about the type of information on the Regents exams is taken directly from state written material. Also, most teachers I know, in fact, use a program called Test Wizard to generate exams rather than copying, cutting and pasting from the Barron’s book questions. Both of these resources use the same source–old Regents exams. It still raises the question of teaching to the test, though a certain amount of test prep is necessary to make students comfortable with format and language that are independent of scientific content. But the questions of copyright and plagiarism are moot.

  6. Ben Medina says:

    Where can I find more information about the Fair Use Policy for Teachers?


    I liked reading this section. It took me back to my bachelor degree days…

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