Copyright and the Fair Use Doctrine

Imitation is the sincerest form of flattery- Oscar Wilde

Fair use is a doctrine permits limited use of copyrighted material without having to first acquire permission from the copyright holder. As instructional designers, we must be cognizant of what does and does not constitute fair use when designing e-learning.

Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use. Some of these uses include criticism, comment, news reporting, teaching, and research (Office, 2020).

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As educators and instructional designers we have access to copyrighted material on a limited basis. Purpose and character of the use as well as the nature of the copyrighted work are examples of things considered when evaluating if an item falls under the Fair use doctrine. The court may consider other factors in weighing a fair use question, depending upon the circumstances. Courts evaluate fair use claims on a case-by-case basis, and the outcome of any given case depends on a fact-specific inquiry. This means that there is no formula to ensure that a predetermined percentage or amount of a work—or specific number of words, lines, pages, copies—may be used without permission (Office, 2020).  

For more information on the Fair Use Doctrine check here:

For general information on copyrights:


Office, U. S. C. (2020, April). More Information on Fair Use. Copyright.

Designing for Different Contexts

The importance of contextual analysis

“To a man with a hammer, everything looks like a nail.” —Twain/Maslow/Kaplan/Baruch/Buddha/Unknown (O’Toole, 2019)

As an instructional designer, we must consider the context for which we are designing.  Education, military, corporate and health care all present unique design challenges.  The one size fits all approach just does not work.  An instructional designer must be prepared with multiple tools to deliver for their client.

Context is important in any learning event, yet most instructional design models contain little guidance about how to account for contextual elements (Tessmer & Richey, 1997).

Malamed et al., summarize Tessmer and Richey’s thesis by breaking down contextual analysis into the categories represented in the infographic below.  Each situation the ID enters will have a unique combination of environment, mental-emotional motivators, technological resources, social, and cultural identities. Failure to consider even one of these factors can result in ineffective design.

Take for example the technological constraints of an organization.  The most comprehensive e-learning design will not be successful if the client does not have the infrastructure to support it.  In a company built on team problem solving and collaboration, self study is probably not the way to go.

If the ID fails to do contextual research, they are not getting a complete picture of the target audience’s work life. Failing to understand the learners work life results in failing to deliver a product that has maximum impact or worse is completely ineffective.


Malamed, C., says, C. M., says, C. P., Pendrich, C., says, S. S., & Sridharan, S. (2018, February 9). The Importance of Context In Learning Design. The eLearning Coach.

O’Toole, G. (2019, January 11). If Your Only Tool Is a Hammer Then Every Problem Looks Like a Nail.

Tessmer, M., & Richey, R. C. (1997). The role of context in learning and instructional design. Educational Technology Research and Development, 45(2), 85–115. 6;\lsdpriority

Working with a Subject Matter Expert

“Alone we can do so little; together we can do so much.” – Helen Keller.

      Subject matter experts (SMEs) have expert in their name for a reason. They are your bridge from identified need to successful outcome.  As with most relationships, a foundation of trust and honesty is the best jumping off point for success.

                A great way to begin is to acknowledge the SME’s expertise and skill set.  Be grateful and gracious for their time and be respectful of it.  Build a rapport by discussing their background, professionally and personally.  How did they come to be an expert in the field (Yancey, C., 1996)?

                Once you have built a rapport, clearly state the knowledge gap you are trying to bridge and ask for their opinion on the matter.  Getting buy is key at all points in the process.  You may not use all of the ideas but seeing how the SME views the gap and its root cause will go a long way to building cooperation.

                Finally, share the map you have for developing your Instructional Design and make clear where you will need their assistance along the way.  By setting clear expectations, you show a respect for their time and put them at ease by showing you are a professional and have a plan for success (ACS, 2008).

                Something to keep in mind, SMEs are human and have egos just as you do.  They may be wondering why an outsider was brought in to teach something they are already an expert in (Yancey, C, 1996).  This situation is not insurmountable.  If you find yourself in a situation where there is friction, it is part of your job as an Instructional Design professional to set them at ease. Remind them that while they are the expert on the subject at hand but you are the expert at instructional design and your combined expertise will work together to resolve the identified gap. If there is still friction, you can invite them to pair you with another expert who can serve as a backup to lighten their load or form a team of three.  Sometimes a third point of view can serve as a buffer for strong personalities.  


Affiliated Computer Services, Inc. (2008), Working with Subject Matter Experts, Dallas, TX

Yancey, C. (1996). The ABCs of working with SMEs. Performance Instruction, 35(1), 6-9. doi:10.1002/pfi.4170350104

Successful interviews do not happen by accident…

“By failing to prepare, you are preparing to fail.”-Benjamin Franklin

Portrait of Benjamin Franklin in front of the one hundred dollar bill

In claims adjusting, active listening is the key to successfully investigating the claim.  Part of that investigation is an interview of all parties to the claim.  People love to tell their story and the best approach is to let them.  Ask open-ended questions and be prepared to build follow up questions based off their answers.  Silence is not the enemy, give the interviewee time to formulate their response. If they truly are struggling, offer to restate or clarify the question if needed.  Finally, always repeat back to the interviewee their response restated in your own words.

Active listening is not the only key to a successful interview. The need for preparation cannot be understated.  The interviewer should prepare an outline of questions that will allow them to secure the information they need from the interviewee. Let the person answer the questions in their own way, but make sure you get the answers you need.  In claims, this means understanding the facts of the loss and the extent of the damages.  For an instructional designer that will mean the nature of the project and desired outcomes, from the client.  From the SME it will mean what knowledge and methods do we need to achieve those goals.

Interviewing and active listening are something I am very familiar with and if I can leave anyone with any advice based on my twenty five years in the insurance industry it is this:

You would not start a trip without a map to the desired destination so do not go into an interview without a map of questions that will allow you to reach your desired outcome.

My REAL first blog post..


Why use one word when ten will do?

Michele Broadhurst on Oscar Wilde

So I spend a good deal of time scattered as I prioritize my daily tasks. I do not use a to do list as often as I could but when I feel I have complicated things yet again, I think of my buddy Oscar. The Portrait of Dorian Gray is a great book but it probably could have been fifty pages shorter. My point is I have to stop sometimes and ask myself, “Am I making this harder than it needs to be?”

Eh, maybe he got paid by the word. Maybe I could get paid by the word…….