QUESTION OF THE MONTH: The 10% Rule

QUESTION

Dear CSM:

I'm a reporter for public radio. Is it "Fair Use" to use a short clip from a TV show or film in order to make a point in a given story, even if I'm not commenting directly on the clip? If so, what is the maximum amount of material I am allowed to use of a given TV show or film. My understanding is that if 10% or less of the story is devoted to that material, it's "Fair Use." Is that true?

Thanks,

Sean

ANSWER

Dear Sean,

There is no "10 per cent rule," and actually, you're happy about that. Fair Use is always judged in context. It's all about how and why are you using the material. So you need to decide on the basis of whether you are using the original material for a different purpose than the original, and whether you are only using enough of it to achieve that different purpose.

For instance, a photograph might have been taken of a civil rights demonstration for a news service at the time. You are now using it to show from what angles news photographers typically photographed crowds in that era. Different purpose. You are using 100 percent of the photo, which is what you need to make the point. If you had a 10 percent rule, you couldn't even get the job done.

How should you reason to make sure you stay within the law in documentary film? See the Documentary Filmmakers' Statement of Best Practices in Fair Use for more clarity.

How did we ever get rules like the "10 percent rule," or the "30 second rule"? Some of them come from standards and practices manuals for nightly network news reporting. They were designed by in-house lawyers to explain in very specialized circumstances what would be a best practice. It worked fine for people producing segments in 15- and 30-minute news programs. But it has no force in law, and if you're not working in that mini-genre it probably isn't your rule of thumb. Ignore the rigid little rules, and go for the reasoning. That's what liberates you to use Fair Use fairly--to use what you need when you repurpose. This reasoning also guides you to know when you really need to pay for something (or when someone needs to pay you!)

--The Center for Social Media

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