Fair Use Question of the Month: Using Materials without Permission in Journalism

In this month's fair use question a journalist grapples with how to expose a price-gouging scheme via access to emails he/she does not have permission to publish.

Dear Center for Social Media,

I've been working on an investigative series about local school board contracts, for an online investigative news service. One of the subjects of the story is a single-bid contract for high-priced HVAC systems. I want to run a series of inter-office emails within the company showing price-gouging, on a resource page for the series. These emails are copyrighted, of course, to the authors or the company. Everyone's nervous, and they don't want to give the company or the school board any reason to squawk. Can I use them without getting permission from the company or the authors?

Investigative Journalist

Dear IJ,

You're in luck, because the Set of Principles in Fair Use for Journalism was just created, by journalists for journalists. You can consult Situation Two in the Principles. There, you'll find that your use falls into a category where fair use is applied: “Fair use applies when journalists use copyrighted material as documentation, to validate, prove, support, or document a proposition.” Then you can check the limitations to see whether your use exceeds the limits of fair use as journalists expect it to be used. Did you use the amount of the work that was appropriate to your purpose in documenting her claim to have found price-gouging? Is this evidence valuable in providing readers with validation for your claim? Should you attribute? (This doesn't mean give away the source who gave you those documents; it could mean saying these are inter-office emails from HVAC Company Name.) When you've checked backed with your own decisions in this case, you can make an informed decision, knowing the judgment of your peers is important in lowering risk.