Holly Pond, AL asked in Copyright for Alabama

Q: Online videos and textbook question

I am planning to create videos to tutor test prep students. Every student will register and sign in and purchase a hardbound copy of the textbook I use to access the videos. Can I use excerpts from that textbook for examples and explain solutions to problems from that textbook legally? I will charge for access to the videos. I will not be making a digital copy of the entire book, only pulling problems to teach my own methods.

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1 Lawyer Answer
Bernard Samuel Klosowski
Bernard Samuel Klosowski
  • Intellectual Property Lawyer
  • Greenville, SC

A: Generally speaking, using "limited" parts of a copyrighted work is OK for criticism, commentary, teaching, etc. See 17 U.S. Code § 107. This is called "Fair Use." But Fair Use is just a defense to infringement; it can't prevent a suit. In other words, if a copyright owner alleges or sues for copyright infringement, Fair Use might be raised as a defense after the fact. So, of course the best thing is to avoid being sued in the first place.

As § 107 explains, there are various factors to be considered to determine if a particular use is Fair Use or if it rises to the level of infringement. One of the factors is how much of the work is being excerpted. You state the students will be purchasing the textbook in question, and you'll be using "excerpts from that textbook for examples and explain solutions to problems from that textbook." The devil's in the details. If your video is 30 minutes long and for just a couple of minutes you show one excerpt/problem from a multitude of similar problems in the text and then "show your own work" regarding the solution for the remaining 28 minutes, that would seem to fall on the Fair Use side of the equation. But if 98% of the video shows 10 out of 12 problems from the textbook and most of the video run time is showing textbook material, that could fall on the problematic side.

There also are other factors to be considered, such as whether the excerpted material is even protectable copyright. For instance, if the problem is 3+2=x, there are very few ways to show that problem (2+3=x, x-2=3, etc.), so it might not be copyrightable under the doctrines of merger and Scènes à Faire (things that are commonplace). But like Fair Use, those doctrines are defenses usually raised after an allegation has been made.

It would be best to consult a copyright attorney with specific facts (maybe share a planned video with the attorney) to determine the best course of action.

Good luck.

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