11.6 Copyright and fair use

Copyright and fair use are crucial concepts for journalists to grasp. These principles govern how news content can be created, shared, and protected. Understanding the basics helps reporters navigate legal boundaries while producing impactful stories.

Fair use allows limited use of copyrighted material without permission for purposes like news reporting. This doctrine enables journalists to incorporate relevant clips or quotes into their work, balancing the rights of creators with the public's need for information and commentary.

Copyright basics for news

• Copyright law grants exclusive rights to creators of original works, including news articles, videos, and photographs
• These rights give copyright holders control over how their content can be used, reproduced, and distributed by others
• Understanding the basics of copyright is essential for journalists to avoid infringing on others' rights and to protect their own original work

Exclusive rights of copyright holders

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• Copyright holders have the exclusive right to reproduce their work (make copies)
• They control the right to create derivative works based on the original (adaptations, translations)
• Copyright owners decide how to distribute copies of their work (sell, rent, lease)
• The right to publicly perform or display the copyrighted work is also reserved for the owner

Public domain and expired copyrights

• Works in the public domain are not protected by copyright and can be used freely without permission
• Copyrights expire after a certain period of time, which varies by country (in the US, the standard term is author's life plus 70 years)
• Once a copyright expires, the work enters the public domain
• Facts, ideas, and works created by the US federal government are not copyrightable and are in the public domain

Registering copyrights for news content

• Copyright exists automatically when an original work is created and fixed in a tangible medium
• Registering a copyright with the US Copyright Office provides additional benefits:
  • Establishes a public record of ownership
  • Allows filing infringement lawsuits
  • Potential to recover statutory damages and attorney's fees
• News organizations should consider registering copyrights for valuable, original reporting

Fair use in news reporting

• Fair use is a legal doctrine that allows limited use of copyrighted material without permission for purposes such as criticism, commentary, news reporting, teaching, scholarship, or research
• Determining fair use requires a case-by-case analysis weighing four factors
• Journalists often rely on fair use when incorporating clips or quotes into their reporting

Four factors of fair use

• Purpose and character of the use (nonprofit, educational, transformative vs. commercial)
• Nature of the copyrighted work (factual vs. highly creative)
• Amount and substantiality of the portion used in relation to the whole work
• Effect of the use upon the potential market for or value of the copyrighted work

Commentary and criticism using clips

• Using short clips from copyrighted material to provide commentary or criticism can qualify as fair use
• The clips should be relevant to the news story and incorporated in a transformative way (not just rebroadcasting)
• Examples: Showing a clip from a political ad while analyzing its claims; using a movie clip to critique its representation of a topic

Transformative uses of content

• Fair use favors transformative uses that add new expression, meaning, or insight to the original work
• Transformative uses repurpose copyrighted content in a different context or for a new purpose
• Examples: Remixing news clips into a parody video; using photos in a news article that analyzes visual trends

Licensing copyrighted material

• When fair use doesn't apply, journalists need permission from copyright holders to use their content
• Licensing agreements specify the terms under which copyrighted material can be used, often in exchange for payment
• Some copyright owners make their work available under Creative Commons licenses that allow certain uses with attribution

Obtaining permissions from owners

• Journalists should identify and contact the copyright owner to request permission to use their content
• Permissions may be granted directly by the owner or through a licensing agent
• It's important to get permissions in writing and to clarify any restrictions or requirements

Creative Commons licenses

• Creative Commons (CC) offers a set of free copyright licenses that creators can use to allow sharing and use of their work
• CC licenses range from very permissive (free use with attribution) to more restrictive (noncommercial use only, no derivatives)
• Journalists can search for CC-licensed content on platforms like Flickr and Wikimedia Commons

Paying royalties for music

• Using copyrighted music in news productions usually requires paying royalties to the composer and publisher
• Royalties are typically handled through performing rights organizations like ASCAP, BMI, and SESAC
• News organizations can purchase blanket licenses that allow use of music from the organizations' catalogs for a flat fee

Copyright infringement in news

• Copyright infringement occurs when someone uses a copyrighted work without permission in a way that violates the owner's exclusive rights
• In news contexts, common examples of infringement include rebroadcasting clips without commentary, republishing articles without a license, and using photos without permission
• Journalists should be aware of the risks of infringement and take steps to avoid violations

Plagiarism vs copyright violations

• Plagiarism is passing off someone else's work as your own without giving credit
• Copyright infringement is using someone's work without permission, even if credit is given
• Plagiarism is an ethical violation that can damage a journalist's reputation
• Copyright violations are illegal and can result in lawsuits and monetary damages

Consequences of infringing copyrights

• Copyright owners can sue for infringement and seek monetary damages, court orders to stop the infringing use, and attorney's fees
• Statutory damages for registered works can be up to $150,000 per infringed work
• Infringement can also result in negative publicity, loss of credibility, and damage to professional reputation

Responding to cease and desist letters

• Copyright owners may send cease and desist letters demanding that a news organization stop using their content
• Journalists should take these letters seriously and consult with legal counsel to evaluate the claims and determine an appropriate response
• Options may include removing the content, negotiating a license, or asserting fair use

Best practices for avoiding violations

• Journalists can minimize the risk of copyright violations by following best practices and being proactive about rights clearances
• Whenever possible, it's best to use content that is in the public domain, licensed for use, or created in-house
• When using others' content, journalists should strive for fairness, giving credit and adding value through commentary or criticism

Citing sources and giving attribution

• Journalists should always give credit to the original sources of information, quotes, and media used in their reporting
• Attributions should be clear and specific, identifying the creator and source of the content
• Giving credit is a matter of professional ethics and can help support a fair use argument, but it doesn't substitute for obtaining permissions when needed

Limitations on borrowing content

• Journalists should use only as much of a copyrighted work as necessary to serve the purpose of the news story
• Borrowing too much content or using it in a way that competes with the original can undermine a fair use claim
• As a rule of thumb, use should be limited, targeted, and transformative, not just republishing or rebroadcasting

Using public domain footage and music

• Public domain footage and music can be a valuable resource for journalists looking to add multimedia elements to their stories
• Websites like Archive.org and the Prelinger Archives offer collections of public domain video footage
• Classical music compositions and many older musical recordings are in the public domain
• It's important to verify the public domain status of a work before using it, as some online sources may contain inaccurate information