Glossary

11.6 Copyright and fair use

6 min read•august 20, 2024

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 . 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 .

  • 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
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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 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 , 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 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
  • 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 , , and SESAC
  • News organizations can purchase blanket licenses that allow use of music from the organizations' catalogs for a flat fee
  • 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 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 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

Key Terms to Review (20)

ASCAP: ASCAP, or the American Society of Composers, Authors, and Publishers, is a performance rights organization that protects the rights of its members by licensing their music and collecting royalties on their behalf. This organization plays a vital role in ensuring that creators receive compensation whenever their music is publicly performed or broadcasted. By managing licensing agreements and royalty distribution, ASCAP helps maintain the integrity of copyright laws and fair use principles in the music industry.
Audiovisual works: Audiovisual works are creative pieces that combine both visual and audio elements to convey information or tell a story. This includes films, television shows, video games, and online content, and it encompasses the way these works are created, distributed, and consumed in modern media. Understanding audiovisual works is crucial for grasping issues related to copyright, fair use, and the rights of creators and consumers in the digital age.
Bmi: BMI, or Body Mass Index, is a numerical value derived from an individual's weight and height, used as a screening tool to categorize individuals into various weight categories. It serves as an indirect measure of body fat and is commonly used in health assessments to identify potential weight-related health issues, such as obesity or underweight conditions.
Cease and Desist: A cease and desist is a legal order issued to an individual or organization to stop an activity that is infringing on someone else's rights, typically related to copyright or trademark issues. This term is crucial in protecting intellectual property and ensuring that creators can control the use of their work, which ties directly into the concepts of copyright and fair use.
Commentary: Commentary refers to a series of remarks or observations that provide interpretation, analysis, or opinion about a particular subject or event. In media and journalism, commentary often adds depth to reporting by presenting the commentator's perspective, enriching the audience's understanding of the context surrounding the news. This form of expression can take many shapes, such as editorials, opinion pieces, and on-air analyses.
Copyright Act of 1976: The Copyright Act of 1976 is a landmark piece of legislation that established the framework for copyright law in the United States, providing creators with exclusive rights to their original works. This act modernized copyright protection by extending the duration of copyright, defining the scope of protected works, and introducing the concept of fair use, which allows limited use of copyrighted materials without permission under certain circumstances.
Copyright infringement: Copyright infringement occurs when someone uses a copyrighted work without permission from the copyright holder, violating the exclusive rights granted to the creator. This violation can happen through reproduction, distribution, performance, or display of the work. Understanding copyright infringement is crucial in the landscape of media and content creation, especially concerning fair use provisions and the growing realm of streaming services and over-the-top (OTT) platforms.
Criticism: Criticism refers to the analysis, interpretation, and evaluation of creative works, often aiming to assess their quality, meaning, and impact. It plays a crucial role in understanding the relationship between media and society, as it encourages dialogue and reflection on the content being produced. In the context of copyright and fair use, criticism can also refer to how certain uses of copyrighted materials may be justified under the fair use doctrine, allowing for commentary or critique without infringing on the creator's rights.
DMCA Takedown: A DMCA takedown is a legal request made under the Digital Millennium Copyright Act (DMCA) to remove or disable access to material that infringes on copyright. This process is designed to protect copyright holders by allowing them to notify online platforms of infringing content, which must then act to remove the content or face liability. The DMCA takedown system plays a crucial role in balancing the rights of creators and the need for free expression on the internet.
Educational use: Educational use refers to the application of copyrighted materials in a way that promotes learning, teaching, and scholarly activities without infringing on the rights of the copyright holder. It is often associated with fair use principles that allow educators and students to utilize resources for educational purposes, fostering creativity and the dissemination of knowledge while balancing the rights of creators.
Fair use doctrine: The fair use doctrine is a legal principle that allows for limited use of copyrighted material without obtaining permission from the rights holder. This doctrine is important because it provides a balance between the interests of copyright owners and the public’s ability to use creative works for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. Fair use is determined based on several factors, which means it can sometimes be a gray area, leading to discussions about how much usage is considered acceptable.
Licensing agreements: Licensing agreements are legal contracts that allow one party to use, produce, or sell another party's intellectual property under specified conditions. These agreements are essential in the realm of copyright and fair use as they provide a structured way for creators and businesses to monetize their intellectual assets while protecting their rights. They can cover various forms of media, including films, music, software, and trademarks, ensuring that proper compensation is provided to the original creators.
Literary works: Literary works refer to original written creations that include novels, poems, plays, essays, and other forms of artistic expression. These creations are protected under copyright law, which grants the author exclusive rights to reproduce, distribute, and display their work, allowing them to control how their creative output is used by others. Understanding the scope of literary works is essential in discussions about copyright and fair use, as these legal frameworks determine how and when such creations can be used without permission.
Musical works: Musical works are compositions that consist of melodies, harmonies, rhythms, and lyrics, often created for performance or recording. These works can be original creations or adaptations of existing music and are protected under copyright law, which grants creators exclusive rights to their use and distribution. Understanding musical works is crucial in navigating the complexities of copyright and fair use, especially in industries like television and film where music plays a significant role.
News reporting: News reporting is the process of gathering, verifying, and presenting information about current events to inform the public. This practice involves not just the collection of facts but also the contextualization of these facts within a narrative framework that engages readers and viewers. Essential elements of news reporting include accuracy, clarity, and adherence to ethical standards, ensuring that stories are both informative and trustworthy.
Parody: Parody is a creative work that humorously imitates the style or content of another work, often to criticize or comment on it. This form of expression highlights the original piece's quirks and flaws through exaggeration and imitation, and can serve various purposes, including entertainment, satire, or social commentary. Parody plays an important role in the discussion of copyright and fair use as it often navigates the line between inspiration and infringement.
Public domain: Public domain refers to creative works and intellectual property that are not protected by copyright law and are therefore free for anyone to use, share, or build upon without seeking permission or paying fees. Works in the public domain can include literature, music, art, and other creative expressions that have either expired copyright protection or were never eligible for copyright in the first place, making them valuable resources for education, innovation, and cultural enrichment.
Royalty payments: Royalty payments are fees paid to the owner of a copyright, patent, or trademark for the right to use their intellectual property. These payments serve as a form of compensation for creators and rights holders, ensuring they receive income when others utilize their work. This system is crucial in supporting artists and inventors while also promoting innovation and creativity in various industries.
Sony Corp. v. Universal City Studios: Sony Corp. v. Universal City Studios is a landmark Supreme Court case from 1984 that addressed the legality of home video recording and its implications on copyright law. The ruling established that the use of video cassette recorders (VCRs) for time-shifting, or recording television shows to watch later, constituted fair use, setting a precedent for consumer technology and copyright issues.
Transformative use: Transformative use refers to a legal doctrine in copyright law that allows for the use of copyrighted material in a way that adds new expression, meaning, or message, thereby altering the original work. This concept is crucial in determining fair use, as it evaluates whether the new work has a different purpose or character compared to the original, thus potentially exempting it from copyright infringement claims.
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