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WORKS CREATED IN FIXED FORM CANNOT BE USED

BY OTHERS WITHOUT WRITTEN PERMISSION — THAT IS FUNDAMENTAL TO U.S. COPYRIGHT LAW. THE FAIR USE CLAUSE, HOWEVER, ENCOURAGES JOURNALISTS TO CREATE NEW WORKS WITH EXEMPTIONS TO THE COPYRIGHT LAW. JOURNALISTS TAKE ADVANTAGE OF FAIR USE EVERY DAY. NOW THEY NEED IT MORE THAN EVER WITH SOCIAL MEDIA, APPS AND WEB REPORTING. YOUNG JOURNALISTS MUST LEARN TO STAY IN COMPLIANCE WITH FAIR USE GUIDELINES WHILE CREATING PURPOSEFUL JOURNALISTIC WORKS.

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ven the Library of Congress, in its online description of fair use, describes how difficult the concept can be.

“The distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined. There is no specific number of words, lines or notes that may safely be taken without permission.

Acknowledging the source of the copyrighted material does not substitute for obtaining permission.”

This guide for scholastic media outlets should serve as a starting point, if not a definitive guide, for when fair use might be applicable.

by jacinda dent WINTER 2013

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AN INTRODUCTION TO FAIR USE

What is copyrighted, and what is not?

At this point, given changes in copyright law, almost everything researchers might ever encounter is copyrighted.

There are pockets of non-copyrighted material, but they are small. Work produced before 1923 is generally not copyrighted. Work entirely produced by a federal government employee at the job is in the public domain.

In many states, however, local and state government documents, including court documents, are copyrighted.

Creative Commons, which is a license creators can use to permit some uses for anyone, is a small but useful body of material available for people who want to abide by the conditions that the creators put on their documents.

What is the relationship between fair use and copyright?

Fair use is part of copyright law. It is one of the clauses that balances the censorship effect of granting a monopoly to rights holders. The government is committed to the First Amendment constitutionally, and the monopoly rights create the ability to censor privately, which the government has permitted with copyright law. As a result, fair use is one part of the law that balances out copyright in service of its primary goal: to create incentives for people to create culture in the United States.

PATRICIA AUFDERHEIDE is a professor of communication studies in the School of Communication at American University in Washington, D.C. She is the co-author with Peter Jaszi of Reclaiming Fair Use: How to Put Balance Back in Copyright and is the author of Documentary: A Very Short Introduction, The Daily Planet, and of Communications Policy in the Public Interest.

Reclaiming Fair Use: How to Put Balance Back in Copyright Patricia Aufderheide and Peter Jaszi Paperback: $12.69 216 pages University of Chicago Press ISBN 978-0226032283

She heads the Fair Use and Free Speech research project at the Center for Social Media, in conjunction with Jaszi in American University’s Washington College of Law. She is co-facilitator of the creation of the Set of Principles in Fair Use for Journalism created by journalism organizations — the Poynter Institute, the Association for Education in Journalism and Mass Communication and J-Lab, among others.

The document is available at http://www. centerforsocialmedia.org/journalism.

Aufderheide, who has been a Fulbright and John Simon Guggenheim fellow, has served as a juror at the Sundance Film Festival and at other similar events. She has received numerous journalism and scholarly awards, including the Preservation and Scholarship award in 2006 from the International Documentary Association, a career achievement award in 2008 from the International Digital Media and Arts Association and the Woman of Vision Award from Women in Film and Video in 2010. She received her doctorate in history from the University of Minnesota.

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When describing fair use in “party talk,” what is the short explanation?

Fair use occurs when individuals exercise their First Amendment rights under copyright. That is why understanding fair use is key to the future of journalism.

It is the right to use others’ copyrighted material without permission or payment under some circumstances.

If they are repurposing the material for a new purpose and using the appropriate amount for that purpose, in general that is fair use. Fair use, like other examples of First Amendment rights, relies on a case-by-case judgment, which determines whether the example qualifies as fair use as determined by the context in which the writer places the new material.

Is there any way fair use could jeopardize the future of journalism? It could allow people to take the hard-earned work of investigative journalists, international reporters and others and simply repeat it.

If people do so, that is not fair use. That is infringement, with all the terrifying penalties that come with that violation of the law. Fair use does not threaten the future of journalism because it permits only the repurposing of material in appropriate amounts for the new purpose.

Fair use is what allows reporters today to freely quote from press releases, think tank reports, corporate memos and local government documents (which sadly are often copyrighted).

The future of journalism depends on journalists being able to use digital tools to advance the story, to draw from the copyrighted world around them, including from Facebook, Twitter, Instagram and all the platforms that “elves are inventing as we type,” to appropriately illusWINTER 2013

nnnnnnn At what point does a photograph become manipulated enough to qualify as “100 percent original work” — required by the contest rules — and as something separate from what the original photographer created? Is this enough?

According to a 2013 article on petapixel.com by Michael Zhang, photographer Kevin Collins (kevincollinsfilm.com) was never contacted for permission, and he never allowed his photo to be manipulated and published without attribution. He had a Creative Commons license for the photo but required that any use carry attribution.

“PapiloChessBoard,” the photo-manipulated image that won first place for 23-year-old Frenchman Romain Sarkal Eloy.

Contest officials later determined it was based on this image by photographer Kevin Collins.

trate the story and indeed develop multimedia ways to tell the story, to share information and to crowd source information.

In what settings can fair use generally apply in a mass media setting?

Fair use is a general right, applied in specific situations. Journalists cannot and would never want to develop a blanket “rule” on how to apply fair use. That would destroy the whole purpose, which is to give new creators of culture the chance to repurpose existing work as they need to. Fair use “guidelines,” such as 30 seconds, 400 words, a 10th of the material and other “measurements,” are myths that chisel away at journalists’ First Amendment rights.

At the same time, journalists do not have time to reinvent the wheel every time they think about taking a Facebook picture of a crime victim. That is why it is so important that journalists in major journalism organizations have created the Set of Principles that allow all journalists to get a good understanding about how to apply fair use in common journalistic situations.

What are the most common journalistic situations in which journalists need fair use?

The Set of Principles discusses seven common situations: • When copyrighted material incidentally ends up in someone else’s journalism product (recorded music is in the background of the interview; a photographer takes a picture of a protestor’s sign [yes, it’s copyrighted to her]; there’s a poster on the wall of the art gallery at the opening).

• When copyrighted material is proof (the damning corporate memo; the think tank’s evidence on weapons of mass destruction; the celebrity’s offending tweet).

• When copyrighted material is used in cultural reporting and criticism (quoting from the book, movie or song in the cultural reporting or criticism, for instance).

• When copyrighted material is used to illustrate reporting/analysis (for instance, two screen grabs showing how common product placement is in music videos; a clip of the major celebrity performing at the city’s Fourth of July celebration; examples of corporate WINTER 2013

Eventually, contest officials, who stated the entry violated contest rules, rescinded the award.

SOURCE: http://petapixel.com/2013/04/02/ copyright-controversy-after-appropriated-photo-used-to-win-art-contest/

logos showing changing styles).

• When copyrighted material is used as a historical reference (the bridge as it was before the disaster; the celebrity in his glory days; the first-issue cover of a defunct magazine on the occasion of its end).

• When copyrighted material is used to start or to expand a public discussion of news (giving readers the terms of the HVAC — heating, ventilation and air conditioning — proposal for the city schools, to comment and analyze; providing redacted documents for users to fill in gaps; asking for discussion of a provocative essay affecting a local election).

• When copyrighted material is used in advancing the story (aggregating).

Journalists do not have time to make a judgment call on each of their uses. We need some generally applicable guidelines.

What are they?

Actually, other professional groups feel the same way.

What people find as they start to employ their fair use rights is that they can build on their previous decisions.

Often decisions they make are in the same general category of their practice. Once they are used to exercise their rights, they find it goes quickly — as quickly as it goes for their other uses of the First Amendment. The hard choices are always at the edges of acceptable practice.

Think about libel, indecency, obscenity and treason, all of which are limits on First Amendment rights. Journalists usually know how to deal with those issues because they are used to making clear decisions on those matters.

Kelly Nyks, a filmmaker who turned to the Documentary Filmmakers’ Statement of Best Practices in fair use when he needed help, said, “Until you know about it, fair use is the monster that lurks in the legal shadows. Once you have information, it balances the playing field.”

Does the Set of Principles line up with the “four factors” mentioned in the U.S Copyright Act of 1976?

Yes, it does. The “four factors” mentioned in the Act are the nature of the original work, the nature of the new work, the amount taken and the effect on the market.

The four factors, since 1990, have been merged into general questions by judges.

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• Did the unlicensed use add value to the preexisting material rather than simply exploit it?

• Was the use made in good faith because the writer selected an amount and kind of expression appropriate to the task?

• Was it reasonable according to the general opinion of the field?

Is fair use under the law designed for a specific purpose?

No, that is the uniqueness of U.S. law. While the law provides a few examples, fair use was deliberately designed to be quite abstract so new users in any field could use it as their work, needs and creative innovation evolved.

Many other countries, such as the Commonwealth countries, instead of fair use have “fair dealing,” which is a long, long list of acceptable uses. In the digital environment, with rapid innovation at risk, nations are deciding that the fair use approach makes more sense. Canada has tweaked fair dealing to look more like fair use. Australia is considering importing fair use, and United Kingdom Prime Minister David Cameron has said the UK’s economic competitiveness could be riding on adopting fair use in Britain.

What can individuals do if they are not sure that their choice falls under fair use?

They can read the Set of Principles, decide if their use falls under one of the seven categories and match up their use with the limitations.

What happens to individuals if they use copyrighted work without permission?

If they are using the work under fair use, as journalists do every day, the consequence usually is that they accomplish journalism. Journalists do it every day when they “advance the story,” quoting or paraphrasing what has gone before. They do it when they review a work and quote a line from a movie or a book or a play or when they show a clip or an image. Journalists do it when they quote from a corporate or government document or a think tank report in a story. They do it when they use a clip showing a famous singer performing in their reportage of a July Fourth celebration. Every day fair use is employed by millions of U.S. citizens, many of them journalists, most of them blithely ignorant that they are even doing so.

If writers used work without permission, under fair use, and someone claims infringement, then for the first time they will actively employ their fair use right. Fair use rights are like rights of self-defense. Journalists act knowing that they could use them if they were challenged. This right is also called an “affirmative defense.”

That is when they have to actually know their rights and assert them. If they are employing fair use, then showing their challenger the Set of Principles will be useful. Or if it is a Digital Millennium Copyright Act notice — a Content ID notice or a takedown notice — then using that language in the response will be helpful.

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to infringe (to use others’ copyrighted work for the same purpose and in the same amount that they are selling it or making it available, for instance uploading popular songs to share with your friends), then they could have to negotiate with the owner or face a lawsuit. The law allows hefty “statutory damages” or fines, which are almost never leveled at the limit permitted by law. But the damages are designed to deter people. They should not deter people from using their rights, though.

The consideration is why having the Set of Principles ended up being so important. People do not want to be lone operators at the workplace or as vulnerable freelancers, making calls that could be second-guessed in a way that gets them in trouble. The Set of Principles allows people and entire businesses and nonprofits, such as universities, to know where acceptable practice is.

Sometimes people say something is “fair use” simply because they are in an educational environment.

What specific guidelines are helpful for educators and for students?

Educators have a special exemption under the law, which is extremely expansive — far more than fair use.

But it covers only face-to-face instruction in a classroom.

It does not cover clubs, public presentations, screenings open to the public (even with discussion!) or many other activities that occur in a school or university.

Obviously educators also need to understand fair use. For university-level educators, there is a consensus document on fair use of enormous value: The Code of Best Practices in Fair Use for Academic and Research Libraries. The code, designed for librarians, touches on issues of immediate concern to professors, who are leading patrons of the libraries.

For instance, the code helps them decide when fair use is applicable to course materials online. It helps them decide whether it is OK to take an aging VHS and copy it to a DVD. It helps them decide whether they can make a subtitled copy of the video for a deaf student. And whether graduate students can upload a thesis that is full of examples of newspaper ads to an institution’s repository. And so on. The librarians also developed many hefty materials that are good to give to a general counsel in case there is a legal need to have evidence that this is a reasonable approach.

In addition, communications professors, through the International Communication Association, and film professors, through the Society for Cinema and Media Studies, have created helpful codes of best practices in fair use. The codes help them both in the classroom and in their own research for publications and presentations.

The SCMS scholars developed one on teaching and one on research.

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PHOTO BY MANNIE GARCIA, ASSOCIATED PRESS | ORIGINAL POSTER BY SHEPARD FAIREY | MOST WIDELY DISTRIBUTED VERSION Artist Shepard Fairey designed the Barack Obama “Hope” poster, a [I]t’s a whole lot less likely that the court or jury will think that what he did poster that became widely recognized as a symbol of Obama’s message. was actually ‘fair’ if he has lied and tried to mislead the entire world about The photograph on which Fairey based the poster was an April 2006 what use he made.” shot by former Associated Press freelance photographer Mannie Garcia In 2012, Fairey pleaded guilty to one misdemeanor count of criminal although Fairey originally denied the Associated Press connection. contempt. In addition to community service, Fairey received a $25,000 fine In a 2009 Huffington Post article by Hillel Italie and Joe Mandak, attorand two years’ probation. But did his work qualify as fair use? ney Laurence Pulgram said, “This was a brain-dead move by Mr. Fairey, …

On the next two pages are the SET OF PRINCIPLES developed by journalists convened by chapters of the Society of Professional Journalists and in some cases the Association of Alternative Newsweeklies. In 10 cities nationwide, they conducted 17 meetings, facilitated by Patricia Aufderheide and Peter Jaszi of American University. The complete document is available online at the website of the Center for Social Media. http://www.centerforsocialmedia.org/journalism How was the Set of Principles created?

The strength of the document is in the fact that its principles are drawn from the insights of journalists throughout the nation, through professional associations, about their mission and goals, as they can be furthered by copyright law.

The results were reviewed by a bank of lawyers and legal scholars, who carefully aligned the principles with existing law and judicial decisions.

Why are you so sure that the Set of Principles would be taken seriously?

The Set of Principles is brand-new, and has received only praise and endorsements. No negative comments have been made by anyone, including anyone from major journalistic organizations or media corporations.

It has not been used in court cases yet.

But other such documents have vigorously been used already, with great effect, and without any court challenges or even formal pushback of any kind from any corporate entity. In fact, documentary filmmakers, who must take out their own errors and omissions insurance, used to find that insurers would not cover them for fair use claims before their Documentary Filmmakers’ Statement. Because a statement exists, insurers can now WINTER 2013

insure those fair use claims made within the terms of the statement and do so without incremental charges. Thus, insurers are valuing their risk of having to pay out on those claims at zero.

Why should journalism educators teach the Set of Principles in Fair Use for Journalism?

It is not yet built into industry practice. We need to teach students the realities.

The realities of journalism are moving very quickly, as we all know.

The future of journalism is intimately bound up with fair use. Only if future journalists can use fair use adeptly can they be the journalists you want them to be.

Your students are the people who will set the terms of the digital newsroom in the next 10 years. They deserve to be armed with the best information, rather than living like the working journalists we interviewed, in a perpetual state of anxiety over copyright issues as they try Watch a video presentation or view a slideshow about fair use online. to do their jobs. http://www.centerforsocialmedia.org/ They need to understand their journalism#Videos expressive rights under copyright in the same way they understand their First Amendment rights to point fingers at wrongdoers, challenge the actions of government and use the full range of cultural expression. n COMMUNICATION: JOURNALISM EDUCATION TODAY | a publication of the Journalism Education Association | 11

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incidental capture proof

cultural journalism

SITUATION ONE: Incorporation of copyrighted material captured incidentally and fortuitously in the process of recording and disseminating news. Journalists report on a modern reality permeated with copyrighted content. They constantly capture such material incidentally in the course of reporting on specific events and activities. This is not material they have chosen to include for its own sake; rather, it is an inseparable part of the reality they seek to portray. Excluding (or drastically curtailing) the amount of such material contained in reporting would compromise the truth-telling mission of journalism.

SITUATION THREE: When copyrighted material is used in cultural reporting and criticism. Journalists quote elements from movies, songs, books, articles, blog posts, exhibit displays, online videos, images circulated in social media and other copyrighted material in the course of reporting on cultural phenomena and in reviewing and commenting on cultural products, events and expression.

PRINCIPLE: Fair use applies to the incidental and fortuitous capture of copyright material in journalism.

Set of Principles in Fair Use for Journalism The set of Principles was created by journalists, after the issuing of an American University report, “Copyright, Free Speech, and the Public’s Right to Know: How Journalists Think about Fair Use,” on the problems journalists face in understanding their fair use rights.

Journalists have long depended upon the right of fair use to incorporate copyrighted material into their work, and to this day, they do so constantly. Journalists use it, often without thinking about it or even knowing they are doing so, to quote or to paraphrase source material, to provide proof or illustration of assertions and to engage in comment or critique, among other uses. Indeed, the business of journalism is sustained in part by fair use, which enables appropriate, timely, unlicensed quotations and references to newsworthy material.

LIMITATIONS: • Fair use does not apply where a journalist has gained access to a person or place by agreeing, either orally or in writing, to forego specific uses of the material gathered as a result.

• Neither does it apply if a journalist inserts copyrighted material into the reality being recorded and disseminated, as by asking musicians playing at an event to perform a particular song, or distorts news choices to include copyrighted material.

• The journalist should not repurpose incidentally captured material—for instance, a popular song sung by a celebrity at an event—for aesthetic or entertainment purposes, whether elsewhere in the same piece or in other work.

• The journalist should attribute the material in a reasonable manner. Where relevant, attribution should extend to entities or individuals other than copyright owners (e.g., the art gallery where a picture is hanging or the performer who interprets a song at a public event).

SITUATION TWO: Use of copyrighted material as proof or substantiation in news reporting or analysis. Journalists routinely include copyrighted material, whether from a report, a memo, a video or a photograph, and whether informally generated in social media or through traditional media channels, as evidence of their claim that something did or did not happen, or to support (or negate) the assertions of a source or other newsworthy person.

PRINCIPLE: Fair use applies when journalists use copyrighted material as documentation to validate, prove, support or document a proposition.

LIMITATIONS: • The journalist should take as much as is reasonably appropriate to enable the news consumer to assess validity of a journalist’s assertions and interpretations.

• The journalist should consider the value of the copyrighted material to the public’s understanding of and confidence in the reporting.

• The journalist should attribute the material in a reasonable manner.

Journalists employ copyrighted material both in referring to the existence of phenomena and in developing arguments about them. Journalistic reporting, comment and criticism on cultural expression is a critically important part of the circulation of culture in a society. To do that work, journalists need to be able to reference and quote the material they discuss, making their selections and forming their commentary without the permission of the owners of the work.

PRINCIPLE: The use of textual, visual and other quotations of cultural material for purposes of reporting, criticism, commentary or discussion constitutes fair use.

LIMITATIONS: • The journalist should take as much as reasonably appropriate to enable the news consumer to understand the point being made.

• The journalist should contextualize the material to make clear its relevance to the current work.

• The journalist should make the connection between the cultural criticism or commentary and the selection of copyrighted material clear to the news consumers, by means of text references, captions, voice-over or other signaling.

• The journalist should honor any promises that he or she has affirmatively made to the provider of copyrighted cultural material (such as video clips from new movies).

• The journalist should attribute the material in a reasonable manner.

In general, the principles and limitations apply with equal force to all kinds of source material, from cellphone videos of a war zone to routine coverage of a political campaign. In specific instances, of course, they will apply differently depending on how the considerations they detail play out in specific journalistic contexts.

READ AND DOWNLOAD THE ENTIRE PUBLICATION AT CENTERFORSOCIALMEDIA.ORG/FAIR-USE 12 | COMMUNICATION: JOURNALISM EDUCATION TODAY | a publication of the Journalism Education Association

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historical reference public discussion

advancing story

SITUATION FOUR: When copyrighted material is used as illustration in news reporting or analysis. Journalists use copyrighted material to illustrate as well as to provide proof of a story. They may include a photograph from an event, quotations from people attending an event or provide an audio sound portrait from an event, among many other uses of illustration. Illustration in reporting is not merely decorative. It serves a news function by adding information and context otherwise either not available or provided in a much less efficient or effective way.

SITUATION FIVE: When copyrighted material is used as historical reference in news reporting or analysis. Journalists often make reference to previous events, to people in earlier situations, to previously existing structures and to other historical items in the process of reporting or commenting on the news.

SITUATION SEVEN: Quoting from copyrighted material to add value and knowledge to evolving news. Journalists constantly derive knowledge from earlier journalism as they advance the story by contributing new information while summarizing or quoting from what is already known. Although some of this aggregation merely consolidates noncopyrightable facts, some takes verbatim excerpts of copyrighted material reporting facts or opinions. When done in ways that conform to the journalistic mission, uses of this kind recontextualize the excerpted material. Such recontextualization can be transformative, making the quotation a fair use in some circumstances.

PRINCIPLE: Fair use applies to illustration in news reporting.

LIMITATIONS: • The illustration should add meaningfully to the audience’s understanding of the facts or issues.

• The amount employed should be reasonably appropriate to the illustrative purpose.

• When the illustrative material is provided by a business that provides material primarily designed to illustrate current events, such as a syndicated news service, and the use is for reporting on current events, the journalist should purchase the material.

• The journalist should attribute the material in a reasonable manner.

Historical contextualizing is an important aspect of the work of reporting and analysis.

Journalists share facts with their users and help them understand the meaning of those facts. Arts journalists often need to compare current work to earlier work or to provide a meaningful comparison with others’ work to situate creative effort within a tradition or a trend.

PRINCIPLE: Fair use applies to journalistic incorporation of historical material.

LIMITATIONS: • The journalist should contextualize the historical material to make clear its relevance to the current work.

• The journalist should take an appropriate amount that will provide the relevant historical context.

• The journalist should attribute the material in a reasonable manner.

SITUATION SIX: Using copyrighted material for the specific purpose of starting or expanding a public discussion of news.

Sometimes journalists make available to users copyrighted material garnered in the process of news reporting or analysis, to enrich discussion about the public significance of that material. Increasingly, journalists enlist members of the newsconsuming public to participate in news generation — through “crowdsourcing” techniques, for example.

Such practices must function, of course, as an adjunct to a journalist’s reporting, editorializing, analysis or critique rather than as a substitute for it. Now it is more possible than ever before to tap into expertise distributed throughout the populace, it is part of the journalist’s mission not only to deliver information but also to share, responsibly and appropriately, underlying documentation that can deepen the understanding of news.

PRINCIPLE: The use of copyrighted material to promote public discussion and analysis can qualify as fair use.

LIMITATIONS: • The journalist should make clear to news consumers why the material is being made available and what kinds of responses it is intended to elicit — for example, critical commentary, analysis, new contextual information, or follow-on reporting of additional facts.

• The journalist should use as much material as is appropriate to provide news consumers with an opportunity to engage productively with the material.

• When linking to the material is an alternative compatible with the journalist’s objectives, it should be preferred to unlicensed re-use of copyrighted material.

• The journalist (or outlet) should make available tools and forums designed to encourage participation by news consumers.

• The journalist should make efforts to use the ensuing discussion or other contributions to further generate news.

• The journalist should attribute the material in a reasonable manner.

PRINCIPLE: Fair use can apply to the quotation of earlier journalism.

LIMITATIONS: • The journalist should make clear what she or he is adding to the existing work.

• Reviews of preexisting reports on a story or issue should where possible incorporate excerpts from multiple sources.

• The excerpts should be as brief as is reasonably appropriate to the journalist’s objectives and, in any event, not be so extensive that they effectively replicate the original stories or function as a consumer substitute for them.

• The journalist should attribute the material in a reasonable manner.

Attribution should be clearly apparent to the reader or viewer, and it should be possible for that individual to navigate easily to the original source.

• Any contractual restrictions that the journalist agreed in receiving the material would apply to quotation from it should be observed.

This Set of Principles was created by journalists convened by chapters of the Society of Professional Journalists and in some cases the Association of Alternative Newsweeklies. In 10 cities nationwide, they conducted 17 meetings, facilitated

by Patricia Aufderheide and Peter Jaszi of American University. Endorsers include the Poynter Institute, New America Media, and others.

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JOURNALISTS HAVE TO BE FREE TO CRITICIZE AND TO COMMENT

Clearance and Copyright: Everything You Need to Know for Film and Television Michael C. Donaldson

Michael C. Donaldson is an entertainment attorney who has been fighting for independent filmmakers for more than 30 years. In addition to working on films by such industry icons as Oliver Stone, Davis Guggenheim and Lawrence Bender, Donaldson serves as general counsel to Film Independent (home of the Independent Spirit Awards and the Los Angeles Film Festival) and the Writers Guild Foundation. He is the industry’s go-to attorney for fair use and other clearanceand rights-related issues.

The American Bar Association Journal calls Donaldson “The ‘legal Obi Wan Kenobi’ and fairuse guru of the documentary film set.”

Third edition, 2008 Paperback: $24.99 507 pages Silman-James Press ISBN 978-1879505988

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When describing fair use in “party talk,” what is the short version?

Fair use is a concept built into the copyright law that assures we are honoring the reason we have copyright laws. Copyright creates a sort of monopoly for the creators of works over their works. Copyright was given to authors to encourage the creation of new works. That is what it says in the Constitution. Fair use is a bridge between that monopoly on a work and the right to free speech. Without fair use, individuals could not say “Michael Donaldson is a lousy writer” and then prove their point by quoting from one of my books. The audience would simply have to take their word for it. Fair use makes commentary authentic. It makes it come alive.

What are the main points about fair use that you want to convey to scholastic media teachers and students?

Fair use is not a difficult-to-master concept or a set of esoteric rules. Today, there are a lot of tools that simply define fair use: The statements of best practices within various disciplines, books such as Clearance and Copyright and — for creators of nonfiction works such as journalism — three simple tests: • Is the writer using the material to illustrate a point he or she is already making?

• Does the writer use only what is reasonably appropriate (not extending the use for its entertainment value)?

• Is the connection clear between the material the writer is using and the point the writer is supporting or illustrating?

If the answer to all three questions is “yes,” then writers know they are in the safe harbor for fair use. There is still a lot of room left in the fair use space, but a “yes” to the above three questions means the writer is rock solid.

Why shouldn’t journalists have to get written permission to use everything?

Then journalists could not do their job. Journalists have to be free to criticize and to comment on all sorts of ideas without leaving approval concerning what they say in the hands of the folks they are writing or talking about. Even when approval is given, the time that is consumed, the costs involved and the conditions that are sometimes imposed make the whole process impractical for working journalists.

Why is it good to be a champion of conveying the concepts of fair use?

I am always a bit surprised when I am viewed as a champion or pioneer or when people praise “the work our office does.” Truth is I am an educator at heart who simply wants everyone to understand the law and their rights under the law instead of being cowed by the bullies in the world who want to control everything that is said or written about them. n

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more resources LIBRARY OF CONGRESS http://www.copyright.gov/

The doctrine of fair use has developed through a substantial number of court decisions over the years and has been codified in section 107 of the copyright law.

The safest course is to get permission from the copyright owner before using copyrighted material.

The Copyright Office cannot give this permission.

When it is impracticable to obtain permission, writers should consider avoiding the use of copyrighted material unless they are confident that the doctrine of fair use applies to the situation.

STUDENT PRESS LAW CENTER

http://www.splc.org/knowyourrights/ legalresearch.asp?id=114 Fair use works by allowing non-owners of a copyrighted work to use that work without obtaining advance permission from the copyright holder. Although the safest way to use copyrighted material is to ask for advance permission, in some circumstances it can be difficult, time-consuming and/or expensive. Fair use recognizes the difficulty and is an attempt to strike a balance between: (1) Protecting a copyright owner’s right to control his or her work and be adequately rewarded for his or her efforts and (2) society’s need for readily accessible information.

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UNIVERSITY OF TEXAS

http://copyright.lib.utexas.edu/copypol2.html When writers create materials in an educational setting, fair use is part of a web of authority they rely on to use others’ works. No one strategy is enough today. Libraries license millions of dollars’ worth of academic resources for use every year. There are millions of Creative Commons licensed works available online. Writers rely on implied licenses to make reasonable academic uses of the works they find freely available on the open Web. And they rely on fair use.

JEA/NSPA Spring National High School Journalism Convention

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As the Library of Congress reports on its website, the 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use. These hold true today and are often applicable for news outlets.

• Quotation of excerpts in a review or criticism for purposes of illustration or comment.

• Quotation of short passages in a scholarly or technical work for illustration or clarification of the author’s observations.

• Use in a parody of some of the content of the work parodied.

• Summary of an address or article, with brief quotations, in a news report.

• Reproduction by a library of a portion of a work to replace part of a damaged copy.

• Reproduction by a teacher or student of a small part of a work to illustrate a lesson.

• Reproduction of a work in legislative or judicial proceedings or reports.

• Incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.

fair use legal citations COPYRIGHT ACT OF 1976 (17 U.S.C. 107) It became Public Law No. 94-553 on Oct. 19, 1976, and went into effect on Jan. 1, 1978.

Notwithstanding the provisions of sections 17 U.S.C. 106 and 17 U.S.C. 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use, the factors to be considered shall include the following: 1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.

2. The nature of the copyrighted work.

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole.

4. The effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

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nnnnnnn FOLSOM V. MARSH (1841) This landmark case served as the foundation for the four factors that would later be laid out in the United States Copyright Act of 1976. Jared Sparks and Charles Folsom wrote a 12-volume biography about George Washington.

The biography included Washington’s personal letters, which brought the total of the work to nearly 7,000 pages in length. The Rev. Charles W. Upham wrote a smaller biography about George Washington. Upham’s book totaled 866 pages. However, of those 866, 353 pages were copied from Folsom’s original series. Folsom v. Marsh was decided in favor of Folsom, the original holder of the copyright for Washington’s letters.

TIME INC. V. BERNARD GEIS ASSOCIATES (1968) A dress manufacturer named Abraham Zapruder happens to be at the scene during President Kennedy’s assassination Nov. 22, 1963. Zapruder takes some of the most valuable photos and video clips of the incident and then sells the pieces to Time Inc., a corporation that publishes magazines such as Life and Time. On Nov. 18, 1967, Bernard Geis Associates publishes Six Seconds in Dallas, a book that contains sketches of pieces of the film made by Zapruder. In the name of a compelling public interest, the court ruled that the publisher’s use of the stills was “fair and reasonable,” in part because the use was based on a factual and historical news event.

WILLIAMS AND WILKINS V. UNITED STATES (1973) This court verdict deemed it fair use to photocopy articles for medical and scientific needs, like a student conducting research in a library. Williams and Wilkins Co. sued The National Library of Medicine and the National Institutes of Health because the plaintiff felt that the defendant made unauthorized photocopies of some articles in their journal to give to researchers. The court held that it was a fair use for libraries to photocopy articles for use by patrons engaged in scientific research.

BASIC BOOKS V. KINKO’S GRAPHICS CORP. (1991) Basic Books, representing major publishing houses, sued Kinko’s Graphics Corp. for copying pieces from their books without paying the necessary fees or obtaining permission. Kinko’s also sold the copies they made and netted a profit. The court ruled that their claim of fair use was invalid because Kinko’s did not seek permission and sought profits from the copies.

CAMPBELL V. ACUFF-ROSE MUSIC INC., 510 U.S. 569 (1997) A rap group, 2 Live Crew, released a song titled “Pretty Woman” with the help of their record company. Acuff Rose Music Inc. had copyrighted a song “Oh Pretty Woman” by Roy Orbison before 2 Live Crew’s song was released. Acuff tried to sue Campbell for infringing on their copyrighted version of “Oh Pretty Woman.” Campbell’s song was determined to be within parody limitations and was ruled to be a valid case of fair use.

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LOS ANGELES NEWS SERVICE V. KCAL- TV CHANNEL 9 (1997) During the 1992 Los Angeles riots, KCAL-TV shot footage from their helicopter of Reginald Denny being beaten by protesters. After Los Angeles News Service was unable to obtain a license to use the riot footage, the station used parts of the video anyway and put its own logo over the film, still without permission. Though Los Angeles News Service thought its piece was within the qualifications of fair use, the film use was determined to be outside those qualifications. The station was found guilty of copyright infringement partly because both companies were in the business of gathering news.

ESTATE OF MARTIN LUTHER KING JR. INC. V. CBS (1999) Immediately after Martin Luther King Jr’s “I Have a Dream” speech, King sought a copyright on the work. For the years following, his estate licensed out the speech and continued renewing the copyright agreement over time.

CBS did a documentary series, “The 20th Century with Mike Wallace.” More than half of the footage was of the famous speech, for which CBS did not obtain a license to air. Although both sides of the case managed to settle outside of the court system, making a verdict never necessary, the court ruled that King did not forfeit his copyrights in the text of his speech though his giving the speech was seen as more of a performance than a verbal publication. The court explained that a public performance of a work does not constitute publication.

NÚÑEZ V. CARIBBEAN INTERNATIONAL NEWS CORP. (2000) This appeal raises the question whether the reproduction of independently newsworthy photographs without permission is a “fair use” pursuant to 17 U.S.C. § 107 when those photographs, taken by appellant Núñez, were acquired and reproduced in good faith. Núñez takes partially nude photos for use in a general modeling portfolio.

Later, three photos of then Miss Rico Universe 1997 candidate Joyce Giraud were published in El Vocero, along with several articles about the controversy. Núñez claimed that El Vocero and the TV stations were in violation of his rights as a photographer. Focusing on the “newsworthy” nature of the photographs, the difficulty of presenting the story without the photographs and the minimal effect on Núñez’s photography business, the court concluded that El Vocero had met the fair use requirements and dismissed the complaint.

PATRICK CARIOU V. RICHARD PRINCE ET AL. (2012) A well-known photographer spent six years in Jamaica to gather material for a book. Photographer Patrick Cariou, who helped design, edit and publish the book, is named as the only copyright owner of the book and the photos it contains. After publication, artist Richard Prince used at least 41 photos from Cariou’s book in one of his exhibits and admitted he used the photos straight from the book for his own artwork but claimed the images were transformed and used as derivative works. A U.S. district judge ruled in favor of the original photographer and stated the paintings were not lawfully made under the Copyright Act of 1976 and could not be be lawfully displayed. n COMMUNICATION: JOURNALISM EDUCATION TODAY | a publication of the Journalism Education Association | 17

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fair use exercise

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DIRECTIONS: Below are several scenarios. For each of the scenarios, in small groups, discuss how applicable fair use is, if it is applicable at all. Then each group should type the rationale, detailing the specifics of the principles of fair use, any applicable legal citations and other information in no more than one page, typed, single-space.

Encourage students to refer to the Set of Principles on pages 12-13 and the court decisions on pages 16-17 for guidance.

SCENARIO 1: MISSED PHOTO ASSIGNMENT

On Monday morning, one of your photographers comes into the room. She was supposed to take pictures of a discussion one of the local elected officials had with students at a town-hall event during the weekend. She forgot to shoot the photos, but she places a photo on the page. She knew she had to put in a photo credit so she inserted “Photo courtesy Google Images.” When you discuss it with her, she says, “What does it matter where the picture came from? I could have taken one just like it.”

SCENARIO 2: TOP MOVIES OF THE YEAR

One of your reporters comes to you for advice. He wants to write a short review of what he considers to be the top movies of the year so far — movies such as “Iron Man 3,” “Monsters University” and “Prisoners.” With his short review and recommendation, he wants to include a thumbnail-size version of the movie poster for each movie, posters he can obtain from the websites for each movie. He asks, “Can I use these posters? Can I quote lines from the movie?”

SCENARIO 3: YEARBOOK THEME

At a yearbook workshop, staff editors choose to present two themes to the entire staff and then discuss which one will work best. The first, “On Target,” uses red circles on the cover. The editors explain that the Target store logo is appropriate given that the school colors are red and white. For the second, “The Lion Kings,” a student will paint an illustration for the cover reminiscent of the promotional poster for the movie “The Lion King.” Because the school mascot is a lion, the choice also seems to fit.

SCENARIO 4: THE RESEARCH PAPER AND PRESENTATION

One of your teachers assigns you to write a five-page paper and to make a presentation on the top photojournalistic images of all time. After doing the research, you identify images such as Joe Rosenthal’s photograph from Iwo Jima or Dorothea Lange’s photographs of migrant workers. You want to use samples of the images in your classroom presentation.

In addition, you want to give all students a one-page summary that uses copies of the photographs as part of a contest in which students vote for most memorable image and most effective composition.

SCENARIO 5: RUGBY TEAM WINS CHAMPIONSHIP

Not too many people follow your school’s club rugby team. It practices off campus and is not an official school sport. The entire team, however, is made up of students from your school, and last week it won the state championship in a club league. Now the team wants to travel to national competition. The team’s coach provides you with photos to use in the newspaper to accompany an article that one of your students will write. He said a friend of his took the images so it is OK to use them. In addition, he says it is fine to copy quotes about the team from the local newspaper article. Then the reporter can use them for the student newspaper article. “It’ll save time, and they pretty much got everything right,” he said.

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