News breaks. A crime, an accident, a natural disaster. The newsroom starts gathering information, and among the sources reporters and editors look to are Facebook and Twitter feeds, chock full of pictures and short videos. The newsroom is putting together its first post on the incident. Here’s the question: Can those Facebook and Twitter pictures—content created by someone else, who wasn’t paid to contribute to the publication—be part of it?
“It’s all been copyrighted and it all belongs to someone,” says Patricia Aufderheide, director of American University’s Center for Social Media. “Should you get permission? Time is ticking, and time is the essence of journalism.”
Friday, at TEDxPoynterInstitute, the Center for Social Media released a “Set of Principles in Fair Use for Journalism” that they hope will help reporters and editors answer questions just like these. Aufderheide and her collaborators have found that as newsrooms expanded to digital platforms and more journalists set up shop as independent reporters and critics, the profession as a whole has grown more cautious about incorporating copyrighted content into new work, shying away from using pictures, audio, and video, even when fair use tenets of copyright law would allow for it.
“You have people making decisions based on fear and hesitation and doubt—and legitimate desire to respect other people’s work,” she says.
The new principles are meant to give journalists a tool to make these decisions based, instead, on the consensus of their professional community. This is the tenth such consensus document that the Center for Social Media has produced; researchers there have gone through this process with all manner of creative communities and educators—documentary filmmakers, English teachers, creators of OpenCourseWare, librarians, poets, communications scholars, dancers. They begin by interviewing people in the field about how they do the work where copyright concerns might arise. In this case, they interviewed 80 journalists, in small groups drawn from the membership rolls of the Society for Professional Journalists and the Online News Association.
“We found people who were very rigorously employing their fair use rights in text and going to the other extreme when using audio for video,” Aufderheide says.
In the groups, the journalists discussed what a good journalist should be able to do without needing special clearance from an editor or a lawyer. From those talks, the center drew up the set of principles, ran it past a bank of lawyers, and created the new guide. The seven principles are:
•Fair use applies to the incidental and fortuitous capture of copyright material in journalism
•Fair use applies when journalists use copyrighted material as documentation, to validate, prove, support, or document a proposition.
•The use of textual, visual and other quotations of cultural material for purposes of reporting, criticism, commentary, or discussion constitutes fair use.
•Fair use applies to illustration in news reporting.
•Fair use applies to journalistic incorporation of historical material.
•The use of copyrighted material to promote public discussion and analysis can qualify as fair use.
•Fair use can apply to the quotation of earlier journalism.
What do these mean in practice? If journalists don’t have an easy sense of what fair use allows, these principles don’t immediately make clear whether some particular Facebook photo is fair game or not—at least, they didn’t for me. So I asked Aufderheide to help me apply the principles to a particular question I’d encountered the day before.
One of the writers for a blog I edit had written a post about Sunday’s particularly horrifying episode of Game of Thrones. The post drew on an academic essay about emotional connections to fictional characters to explain why fans were (to put it mildly) freaking out. For this post, as for every post published on the blog, we chose a picture to illustrate it. Usually we rely on Creative Commons and other public domain works. But for this post, tentatively, not quite knowing if it was kosher, we chose a screenshot from the show. How could I have used the principles when making this choice?
“That’s situation 3, isn’t it?” Aufderheide suggested. That’s “when copyrighted material is used in cultural reporting and criticism.”
Were we doing cultural reporting? We were writing about a cultural event that happened and trying to help people understand the reaction to it. That sounded about right.
Then Aufderheide and I walked through the limitations of this principle. Had the writer and I tried to “enable the news consumer to understand the point being made?” Yes, okay.
Had we contextualized the picture “to make clear its relevance?” Yup.