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Fair game

A new set of principles aims to help journalists improve their understanding of fair use
June 7, 2013

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.

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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.

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.

Sarah Laskow is a writer and editor in New York City. Her work has appeared in print and online in Grist, Good, The American Prospect, Salon, The New Republic, and other publications.