Journalists, Fair Use and Copyright: SPJ and Principles

At the latest ONADC meet-up, hosted by the Center for Social Media, we had the privilege of announcing that the Society for Professional Journalists, the Washington College of Law’s Program on Information Justice and Intellectual Property, and the Center will work together on creating a set of principles on journalistic application of fair use.

If ONADC folk are any guide, such a set of principles will be welcome. We encountered plenty of questions about how best and most safely to employ fair use. 

 At the meet-up, we showcased the Center’s most recent report, “Copyright, Free Speech and the Public’s Right to Know: How Journalists Think about Fair Use.” The biggest news from that report: journalists employ fair use vigorously, even aggressively—but mostly don’t know they’re using it. Fair use has been an assumed part of newsroom practice for so long that they confidently and correctly quote copyrighted material without permission or payment, and without even thinking about it.

But when they face new situations—for instance, working in an online environment, or with new media, or with social media—or when they leave traditional newsrooms (as bloggers, for instance, or as citizen reporters), they find themselves without core reasoning tools. And all too often, they fail to assert the First Amendment right tucked into the fair use doctrine. Like other creative communities, journalists self-censor.

Free Quiz

 The ONADC crowd took a quick true-false quiz, which you can take, too:

1. The First Amendment gives journalists the right to quote copyrighted material.

2. Local government records are in the public domain.

3. Fair use doesn't work with photos, because you'd have to take 100% of them, and under fair use, you can't take the whole thing.

4. It's OK to copy a newspaper article into your blog if you're not running a business and it's all noncommercial, but you can't do it if you charge.

5. I employed fair use today.

ANSWERS:

1.     Trick question. It’s both true and false. Our First Amendment rights to copy limited amounts of copyrighted material are inscribed in the fair use doctrine; you need to employ fair use to activate your First Amendment right to quote copyrighted material. The First Amendment is implicated in fair use because the government is banned from interfering in freedom of speech, and if fair use were not available, today’s copyright holders would be private censors with control over all future speech involving their work. The government would have enabled them to do that.

2.     Often false. State and local government records are governed by state and local laws, and often are not public domain. Federal work is public domain, if it is produced by a full-time employee on the clock. However, much federal government work is done at least in part by contractors, whose work is not covered. In other words, even with government documents, you often need to employ fair use rights to have the right to quote. All non-governmental work is copyrighted by default, including your shopping list and your child’s crayon drawing. And these days, it’s copyrighted for the life of the author plus another 70 years.

3.     False. Fair use requires you to make a “transformative” use (i.e., re-using the material for a different purpose), and only to use the appropriate amount. But you can take all of something if that is what you need for that different purpose. Myths abound (30 seconds, 10%, 7 transformation), but they are all bogus. Fair use, like other First Amendment rights, is contextual and case-by-case. It’s always about whether you’re generating new culture, adding value to the culture, or just repeating the same value without the owner’s permission.

4.     False. Don’t stake a fair use claim on non-commerciality, and don’t rule out fair use because a use is commercial. All fair use case law is built on commercial uses. Non-commerciality is a perk in some fair use calculations, but it’s never the main thing. The main thing is “transformativeness,” linked with appropriate amount.

5.     If you committed journalism today, well, then probably true. It’s hard to make it through a day, in a totally copyrighted world, without bumping into copyrighted material you need to refer to, access and quote.