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.
Had we made the connection between the commentary and the picture clear “by means of text references, captions, voice-over, or other signaling?” We probably could have done a better job at that, but it was pretty clear that the picture from the show was introducing the idea that post was about the show.
Had we honored any promises we’d made to the “provider of copyrighted cultural material?” We hadn’t made any promises to HBO, so that was irrelevant.
Had we managed to “attribute the material in a reasonable manner?” Definitely.
So, there it was. According to this principle, I shouldn’t have hesitated at all.
Thinking the question through took a bit of time, but I did feel more confident about appropriating screenshots from TV shows or movies to illustrate posts than I ever had. A more complicated question, Aufderheide suggested, would have been if we had found a copy of the episode on BitTorrent (not a tough feat, considering Game of Thrones is the most pirated show in the world) and used a clip to illustrate the post—to show what had so upset fans.
The point is, though, that journalists could be doing a lot more maneuvering within copyright law as it exists right now, without any of the reforms that leaders in Washington are starting to think about.
“If I could wave a magic wand over copyright, I would do a lot of things to make copyright more balanced,” says Aufderheide. “There are a lot of people who want to wave magic wands over copyright. Many of them, who are more powerful than me, want to make copyright more restrictive.”
One bit of the law that’s not broken, she says, is the fair use allowances. If journalists just follow this set of principles, they might find they have more freedom to gather and share information, in all sorts of forms, than they thought.
Disclosure: CJR has received funding from the Motion Picture Association of America (MPAA) to cover intellectual-property issues, but the organization has no influence on the content.