How well do you know fair use?
July 26, 2012

Are the following scenarios responsible, or wrong?

• Prithi did a beautiful arts feature on the history of a musical for radio. She never had to worry about all the illustrative music clips she used, because the service has a blanket license. But now she can’t podcast it; the license agreement doesn’t extend that far.

• As a newspaper editor in charge of the website, Lynette is clear with all her charges, amateur and pro: Only post a photo if it’s yours or it’s licensed. After all, you’re taking an entire work when you do that, and there’s no First-Amendment argument for lifting copyrighted works wholesale.

• Like most newspaper publishers, Sid has been struggling with the bottom line. He’s angry about the way aggregators snap up his reporters’ hard-earned news, and he’d like to see copyright law changed, to get rid of fair use; it’s killing journalism.

Each is drawn from a real-life example that informed a study, Copyright, Free Speech, and the Public’s Right to Know, published through American University’s Center for Social Media. They all point to a potentially crippling knowledge gap, as journalists rocket into a networked digital environment.

Fair use is the part of copyright law that lets you quote other people’s copyrighted material, without permission or payment, if you’re repurposing it. You’re “transforming” it, in legal terms—taking just as much as you need for a different purpose than the original. That’s why TV news can take clips from Whitney Houston’s videos for her obit, and why you can quote passages from a book in a review, and why you can reprint a revealing corporate memo in an investigative piece.

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Journalists never used to talk about fair use. It was just built into newsroom practice. But with the evolution of digital platforms and social media, and the reality of rapidly changing business models, not knowing your fair-use rights means not knowing—or even ceding—your free-speech rights under copyright law.

That’s because fair use keeps current copyright holders from being private censors. When you want to employ copyrighted material in the service of journalism, your First-Amendment rights are tucked underneath the fair-use hood.

Not understanding your rights can, as our study documented, be expensive, and can fatally slow production in a deadline-driven business. But the worst effect is self-censorship—the decision not to use a photo or audio clip because you’re not sure if you’d get in trouble with the law.

Look what happened to Prithi. She depended on blanket licensing to develop her story. She could have made her decisions according to fair use without making aesthetic sacrifices; she has a great case. Because she hasn’t done a fair-use rationale, she’s not in a good position to argue for the legality of the podcast. But if her quotations from the musical do fall under fair use (they are used for a different reason than simply having people enjoy the musical, and she uses as much as she needs to make her point), then she can podcast it with comfort. She has self-censored, and limited the effectiveness of her journalism.

So has Lynette. Every day, she’s letting her journalists employ fair use without knowing it. They quote from think-tank papers, corporate press releases, and local government reports; they film in places laced with copyrighted material, from background sound to posters on the wall; they might even publish a leaked memo in its entirety. But because Lynette doesn’t know that fair use is both medium- and platform-agnostic, and because she doesn’t know that she has the right to use an entire work in any medium if she has a solid fair-use reason to do so, she’s treating pictures as a special case. That means delay, expense, and sometimes doing a job that is less effective.

And how about Sid? Fair use is not his enemy. It actually has enabled journalism for the last 150 years. Copyright law does permit other uses that aggregators seize on—for instance, copyright does not extend to simple facts (Japan hit by hurricane), or to announcements of those facts (such as headlines and many ledes). But this part of the law has nothing to do with fair use. In fact, if Sid understood fair use better, he could distinguish legal aggregating from copying so extensive (publishing extensive chunks of his reporters’ stories) that it becomes infringement.

All of our journalists might say, as many do, “Sure, I could exercise my rights, but people can always sue me, and then my outfit would go under (or I’d lose my job), no matter how right we were.” And that is true with any exercise of First-Amendment rights, all of which are contextual and have penalties for excess. That doesn’t stop journalists in other areas, even though charges of libel, slander, obscenity, and treason could be just as crippling. But journalists have a pretty good seat-of-the-pants idea of what is acceptable and appropriate. They don’t know exactly where the line at the edge of acceptability is, but they have pretty good sense of when they are a good distance away from it.

Of course, if you don’t have any idea of your community’s best practices around fair use, you have a tough time knowing whether or not you’re in the comfort zone. Several other communities—documentary filmmakers, English teachers, archivists, librarians, and professors of film, communication, and art—have articulated the principles that inform their application of fair use. It has enabled easier, quicker decision-making that assesses risk much more accurately.

Journalists are about to weigh in, and it is long overdue. The Society of Professional Journalists is working with American University’s Washington College of Law and the Center for Social Media to create such a statement of fair-use principles, in conjunction with journalists nationwide. We look forward to a time when journalists can make their fair-use decisions on the basis of journalistic mission, not avoidance, fear, or needless courage. 

Patricia Aufderheide is a professor at American University’s School of Communication, and co-author with Peter Jaszi of Reclaiming Fair Use: How to Put Balance Back in Copyright.