Fair Use Question of the Month: Hip Hop Tribute

Dear CMSI,

Can you settle an argument? I work at a local blogging site, and a local hip hop artist just died. We covered the story using a short clips (less than 30 seconds!) of his best-known song, and we wanted also to use a clip from national network news from when he had a fight with another hip hop artist. But my editor said we couldn't, because that was national network news, and we'd need to get permission. When can I use material without licensing and when can't I?? This is driving me crazy.

Crazy about Hip Hop and Much More

Dear Crazy,

You're in luck, because fellow journalists have provided you some guidance that'll help. The Set of Principles in Fair Use for Journalism [2], in Situation Four, explains “fair use applies to illustration in news reporting.” The reason why it was OK to reference the song without clearing it was not because it was under 30 seconds--all those numerical rules of thumb are bogus, sorry--but because you used the song for a journalistic purpose of illustration, which is different from the market for the song.

Your decision-making question should be: Will use of the song merely make the journalism more fun to experience, or does it serve your journalistic purpose in creating an obituary? Are you using the appropriate amount of the song to serve that journalistic purpose?  Is there a service dedicated to sell such material to journalists (in which case, just pay them, but I don't know of one)? Do you provide attribution? The same questions apply to use of the broadcast footage. When you know the answer in terms of your own choices, you know if you're in the fair use zone.