Journalists depend upon fair use, often without knowing it. The Set of Principles in Fair Use for Journalism was created by journalists to express the consensus of their interpretation of fair use. The Principles feature seven common situations in which journalists can and widely do employ fair use.
Here are examples of uses of copyright material in those seven situations. Test your skill and use the Principles to draw your conclusions. Then check your answers at the bottom.
Sam, a radio reporter, interviews protesters at a rally; behind them, other protesters are chanting, “All we are saying is give peace a chance”--a John Lennon song. Does he have to use other interviews instead? Yoko Ono is known to be really litigious, but Sam really likes the energy of the speakers in this interview.
Prithi, a hyper-local blogger, is covering the opening of an exhibit of a local water-colorists. Two of the artists have emailed her pictures she can use, but she’s also taking pictures of the opening. The pictures include the artworks on the walls in the background , and they’re of course copyrighted. Does she have to get the gallerist’s permission? She thinks the gallerist represents them all, and probably could speak for them.
Freddy has been working on an investigative series about local school board contracts. One of the subjects of the story is a single-bid contract for high-priced HVAC systems. She wants to run a series of inter-office emails within the company showing price-gouging, in the online news service’s resources page for the series. These emails are copyrighted, of course, to the authors or the company. Can she use them without getting permission from the company or the authors?
Diego is covering a music awards event, in which the poster at the event has a hilarious typo in it. He takes a picture of the poster, and he wants to reproduce it on the web page where his story runs. Does he need to check with the publicist for the music awards?
Ashraf is doing a story about war photography over time, and finds iconic photographs from different eras, starting with Matthew Brady in the Civil War and going up to the present. He describes the changing framing, the subject matter, and the technologies. He wants to use the really famous photographs because everyone knows them, and they make the point more clearly and effectively for that reason. Is he restricted to the photo services his news outlet has contracts with? Does he have to get individual permission for those photos not covered by the contracts?
Melanie is reviewing the latest work of a novelist, and wants to quote some text from an earlier novel, as well as the current one, to show how differently the novelist uses language in this work. She’s pretty sure she’s fine quoting from the current work--she’s the reviewer! The publisher begged her to write the piece! But what about the earlier work?
Katie is writing about the advent of new food trucks in the area and enthusiasm for them, and wants to use Twitpics circulated by customers to illustrate her story. Can she use those pictures without checking with the people who tweeted them? Why or why not?
Cal is covering the death of a famous singer for the late local TV news, and he uses a clip from one of the singer’s best-known songs in the coverage. He also uses footage from a national network’s coverage of an earlier scandal in the singer’s life. Does he need to get permission from the other networks?
Ozzie is covering the fall of the oldest tree in the region in a storm. He uses a photo from an undated tourism brochure to show what the tree used to look like and how it was an object of tourism. Does he need to track down the organization that produced the brochure? It looks like it might have been part of local government, or maybe the brochure was produced by a nonprofit using local government funds.
In a story about a disgraced businessman, Stephanie, a radio reporter, finds deep within the city’s Chamber of Commerce’s website an old testimonial video made when he received an award from them. She uses it to show how the businessman had previously been regarded. She’s already had several run-ins with the Chamber’s executive director, and she would love to avoid having to ask that guy any kind of a favor. Plus, they just left it on their website; she thinks maybe it’s not even copyrighted. Can she use the video?
In covering the implementation of health care reform, the newspaper has gotten hold of an insurance company’s form to apply for insurance. The reporters are producing a story about how arcane and complicated the application process is. The editor wants to post this form online, with ways for viewers to comment on and suggest improvements to the design. Does he need permission from the company?
A 19-year-old college student has gone missing, and the local broadcaster wants to use photos she and her friends have posted of her on her Facebook page. Some of them are group pictures, and some of them are party photos that someone, possibly her, thought were hilarious at the time but that may or may not reflect her general behavior. The broadcaster wants to air pictures and also make them available on the web for viewers to use in helping to locate her. Are those Facebook pictures free to use?
Sebastian is pulling together coverage of a major multi-car accident on a nearby freeway for a city-news blog. He has a lot to work with: audio, video, print, web, and social media galore. His job is to provide a roundup every two hours, oriented to the people in a major suburb. What can he take, how much, and what does he need to think about?
A tragic natural disaster has hit the Midwest, and Emma, who works for an agricultural newsletter, is in charge of web-based updates. How should she be making her decisions, to responsibly make use of the work of other journalists to advance the story?
Find the answers below:
Sam needs to look at the first situation in the Set of Principles in Fair Use for Journalism. There, he’ll find: “Fair use applies to the incidental and fortuitous capture of copyright material in journalism.” So his problem is fair use-eligible. Then he’ll check on each of the limitations. Did he already agree with anyone not to film any part of the Lennon song at the event? Did he ask the protesters to sing that song? Did he specifically film the Lennon song performance in order to give listeners the pleasure of a musical experience? Should he attribute? When Sam knows the answers to these questions, he can make an informed decision.
Prithi needs to consult Situation One in the Principles. She can find there that her situation is fair-use eligible: “Fair use applies to the incidental and fortuitous capture of copyright material in journalism.” Now she needs to look at the limitations. Did she make any agreement, perhaps with the gallerist, not to capture images of any of the artwork? Did she stage the event or the photograph to feature the artwork or the people attending the event? Did she capture the images of the artwork in order to let viewers gaze upon it? Should she attribute? When she checks back with her own practice, she’ll be able to decide.
Freddy needs to consult Situation Two in the Principles. There, she finds that her 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 she checks the limitations to see whether her use exceeds the limits of fair use as journalists expect it to be used. Did she use the amount of the work that was appropriate to her purpose in documenting her claim to have found price-gouging? Is this evidence valuable in providing readers with validation for her claim? Should she attribute? When she has checked backed with her own decisions in this case, she can make an informed decision.
Diego needs to consult Situation Two in the Principles. There, he finds that his 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 he checks out the limitations to see if his use stays within the limits of fair use as journalists expect it to be exercised in this kind of situation. Did he use the appropriate amount to make his point? (He might ask himself, for instance, if he needs to use the whole poster, or whether a close up of a specific part of it with the error accomplishes the task. The nature of the blooper, as well as what he says about it, would play a part in his decision.) Is this evidence valuable to viewers in believing or understanding his claim? Is the attribution clear? (It might, depending on the poster and how much he uses, be built into the document itself.) When Diego knows how his uses match up to the principle and limitations, he can make the fair use call with confidence.
Ashraf needs to consult the Principles. Although he might refer to other situations, the cultural journalism section may be most pertinent. It asserts that fair use could apply to his decisions: “The use of textual, visual and other quotations of cultural material for purposes of reporting, criticism, commentary, or discussion constitutes fair use.” Then he’ll check to see how his own uses conform to the limitations. Has he used the appropriate amount? (Given his task of analysis, he could have an argument for using 100% of a photograph, since he’ll probably be talking about composition. But he might not need that full amount at, say, a high resolution. He might or might not need to reproduce a color photograph in color, depending on what he says about it.) Is his work going to provide a context for the photos, and make it clear to a reader why those pictures were chosen? Has he entered into any contractual arrangement or promise with providers or copyright holders that would pre-empt his fair use decision? Will he attribute the work? Once he knows how his uses match up with the principles and limitations, he can make the fair use call with confidence.
Melanie needs to consult the Principles, and probably the cultural criticism principle is the most helpful: “The use of textual, visual and other quotations of cultural material for purposes of reporting, criticism, commentary, or discussion constitutes fair use.” Now she looks at the limitations, and sees how her uses match up with them. Is she using the appropriate amount to serve her critical commentary? Is her quotation put into the context of her comments, and is it clear to the reader why she chose that section to quote? Does she make clear whose work this is? Once she knows how her choices match the principle and limitations, she’ll be able to decide with confidence.
Katie needs to consult the Principles, and Situation Four is probably the most useful to her here: “Fair use applies to illustration in news reporting.” She has a transformative purpose, and it matches the principle. Now she turns to the limitations. Will those photos enhance the journalistic purpose of the story, rather than serving as eye candy? Is she using an appropriate amount of material? (Her use of any particular photo might be 100% of it, if it is appropriate.) Is she taking these photos from a service that sells photographs to journalists? (She is using work that was not specifically designed to report stories, like, say, news service photographs are.) Is she providing attribution? Answering these questions lets her know if her use is within the consensus of the field about appropriate fair use.
Cal needs to read the Principles, and he finds that Situation Four, “fair use applies to illustration in news reporting,” matches what he thinks he is trying to do. He’ll be using the song he wants to use for a journalistic purpose of illustration, which is different from the market for the song. Will use of the song merely make his work more fun to experience, or does it serve his journalistic purpose in creating an obituary? Is he using the appropriate amount of the song to serve that journalistic purpose? Is there a service dedicated to sell such material to journalists? Is he providing attribution? Once he knows if his uses match both the principle and the limitations, he knows how to decide on his employment of fair use.
Ozzie is dealing with a situation that is quite common--you have material but don’t even know who the rights holders are. The fact that it might be from a local government doesn’t necessarily mean it is public domain; the majority of local and state governments have many kinds of documents they generate under copyright. He should assume the material is under copyright. He needs to consult the Principles, and Situation Five is probably the most appropriate for him: “Fair use applies to journalistic incorporation of historical material.” Is he using that brochure material in context of a journalistic article? Is he using the appropriate amount to match his journalistic purpose? Will he attribute as best he can? (Ozzie might not know who really produced the brochure, but he can probably give his best estimate of an attribution.) Once Ozzie has found out how his uses match up with the consensus of the profession, he can make a decision easily.
Stephanie’s issues with the executive director really don’t have anything to do with a copyright decision, so Stephanie needs to consult the Principles, and in particular Situation Five. She learns that her situation could be eligible for fair use, at least in principle: “Fair use applies to journalistic incorporation of historical material.” But does her use match the limitations? Does she provide context for her quotations from the testimonial video that help people understand why the material is quoted? Does she use the appropriate amount to make her point? Does she provide attribution? When she knows how her actual uses align with the principle and limitations, she can make her decision with confidence.
The newspaper’s editors need to read the Principles, and in particular Situation Six. They’re trying to crowdsource journalism. Situation Six would seem to apply to their use: “The use of copyrighted material to promote public discussion and analysis can qualify as fair use.” But how about their actual uses? How do they match up with the limitations? Will they make clear why they are giving readers access to third-party copyrighted material, for what purpose? (How does it go beyond just having a “comments” section?) Is this document publicly available somewhere, so that the newspaper doesn’t have to reproduce it but can just link to it? Can the readers actually deposit their information on that website somewhere reasonably obvious? Is it clear who’s document this actually is? When the newspaper editors know the answers to their uses and match them to the limitations, they can decide whether to employ fair use, with confidence.
The broadcaster needs to read the Principles, and Situation Six--”the use of copyrighted material to promote public discussion and analysis can qualify as fair use”--is probably the most useful, since the goal of posting pictures is to involve users in generating news. Then the editors need to check their uses against the limitations. Will their use of these Facebook photos be contextualized, so it’s clear to users what the broadcaster is asking of them? Is it necessary to reproduce these pictures, or is it just as easy to provide a link? Is it clear to users how to add their information? Is there attribution? When the broadcaster knows the answer to how they are using this material in the light of the principle and limitations, they know how to employ fair use in this case in conformity with the consensus of the profession.
Sebastian needs to read the Principles, and Situation Seven is perfect for him: “Fair use can apply to the quotation of earlier journalism.” He really needs to check the limitations though, to answer his question. What is he doing that is new and adding value to what he is quoting? (Curating and analysis are important functions, as well as new reporting.) Is he where appropriate drawing from multiple sources rather than leaning on just one other reporter’s work? Is he using the amount appropriate to his journalistic mission in this story? Is he attributing responsibly? Did any contract or promise he made pre-empt his fair use rights? When he knows how his uses match the limitations, he can make a confident decision.
Emma will depend on a variety of sources to find the information most valuable to her agricultural audience; she might also have sources and databases special to this community of interest, which she consults; she might draw upon her previous knowledge of the field. In any case, she’ll be aggregating. She needs the Principles, and especially Situation Seven: “Fair use can apply to the quotation of earlier journalism.” Then she checks out the limitations. Is it clear how she’s adding value to existing work? Is she drawing. where appropriate. on more than one source? Is she using the appropriate amount for her purpose? Is she attributing responsibly? Did she make any promises or enter into any contracts that override her fair use rights? She’ll know how she wants to decide about her employment of fair use once she has asked herself those questions.