Copyright, Fair Use, and History Day

In this day and age, especially since the downfall of Napster and other online file-sharing services, the issue of copyright is front and center. For History Day, we tend to sweep this consideration under the rug under by claiming that our educational program falls under “Fair Use.” Certainly, in most cases it does. But it can never hurt to arm ourselves with a better understanding of copyright guidelines.

This whole topic came up recently on the NHD H-net listserv, and as usual, I have been quietly monitoring the discussion and learning. I want to share with you an email that came through from Dr. E. Haven Hawley, Acting Director and Program Director at the Immigration History Research Center in Minneapolis, MN. It’s an excellent source for information on copyright, and is worth reading:

“You can incorporate selected material under the Fair Use doctrine. This involves judging the intent of the user and the purpose, the nature of the work, the amount of material used, and the impact of the use on the market (including commercial value). See the Copyright Office for more information on this:

Using materials that are copyrighted is a risk assessment. Music that is licensed by (by ASCAP [American Society for Composers, Authors, and Publishers], say) is much more likely to be prosecuted if more than a bit (really tiny bit) is used. This is because there is a strong likelihood that any use will reduce the actual market for the song (or that’s what ASCAP would argue in court). Assume that all materials are copyrighted; registration (and the copyright notice) just means that they can recover legal fees in addition to have the right to sue.

Anything produced by the federal government is NOT in copyright and can be used freely. So oral histories produced by the US government would tend to be a good choice for weaving into student work. Also, many repositories will acknowledge a priority for educational use of materials. How much of the original material is the student going to change? This also is an issue.

The dates and formats of materials can be placed in various charts to help guide you through knowing what definitely isn’t in copyright and in deciding what the risk of using materials is for things after 1923. See Peter Hirtle’s chart, which is the best out there:

Alright, I know: The information Dr. Hawley provides is a little, er, intense. But again, being an informed researcher, historian, and citizen is a goal of History Day. Since most History Day projects are viewed only at competitions, there is little chance that the ASCAP will come after students. However, it is never too early to understand how copyright works, expecially for you History Day students that plan to become documentarians, exhibit designers, webmasters, etc. You need to know this stuff!


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