When one multimedia production can easily contain over 2,000 copyrighted works, paying royalty fees and obtaining formal permission to use each piece can be extremely costly and time consuming. Often it is impossible to track down who owns the rights to a certain photograph or other piece of work. According to the Copyright Act of 1976, copyright owners have the exclusive right to reproduce, prepare derivative works, distribute, transfer ownership, rent, lend, perform or display their creations. Fair use places a limit on these exclusive rights to promote free speech, learning, scholarly research and open discussion in accordance with the First Amendment. Second, the work should be published, since an author generally will not publish a creation if he or she wants to keep it from the public eye.
Courts also favor nonfiction for fair use over fiction.
This fourth factor, in which the Supreme Court has said the use cannot impair the marketability of the work, is probably the most difficult to determine and the most controversial in a fair use analysis. Because this four factor test is vague and often subjective, shortly after Congress passed the Act in 1976 a group of publishers and educators gathered to agree to more specific guidelines colleges could follow and be reasonably sure they would not be sued for copyright infringement. If the institution transcends the limitations, the copyright holders could challenge its actions. The conferees agreed the Act should be updated to reflect how technologies are used in the classroom and how course material is transmitted over distance learning networks. The Fair Use Guidelines for Educational Multimedia only applies to educators who produce multimedia, a derivative work in the eyes of the Copyright Act.