When developing my course, there are lots of guidelines on how much we can use under fair use. How do I navigate the sea of guidelines and “rules of thumb” for fair use that I find online?
First, it’s important to know that the only binding authority on the limits of fair use comes from the text of Section 107, where fair use is codified in the law, and the court cases applying that text to particular facts. Guidelines like the ones created in 1976 do not have the force of law. Guidelines that give a numerical boundary, like “no more than 10% or 1000 words,” are not codified, and courts have expressly abandoned such limits, looking instead to the balance of the law's four factors and the overarching purposes of copyright. Recent cases have found fair use where entire works were used in highly transformative contexts.
Second, it’s important to look at the individuals and groups who sponsor the guidelines, FAQs, and websites about fair use as you try to determine how useful or trustworthy they are. Instructors can look to codes developed by media literacy educators, open courseware designers, poets, and online video makers for guidance.