‘Free to view is not free to take’: 3 media lawyers on copyright and fair use tips for journalists

Copyright violation is a rising legal risk for media professionals, said litigator and former journalist Chuck Tobin at a National Press Club Journalism Institute program on Wednesday. 

“A generation ago we would probably be focusing more on defamation law,” he said. “But copyright law is the biggest growing area that we’ve seen in our media law practice at Ballard Spahr — especially in the digital environment where the ability to copy and paste into your work is just so easy to do.” 

Joining Tobin to provide an overview of copyright perils and solutions were his colleagues: of counsel Alia Smith and associate Mara Gassmann. (Tobin is the practice leader of the firm’s Media and Entertainment Law Group and a member of NPCJI’s board of directors.)

“The initial thing that we like to dispel in these seminars is the notion that there’s such a thing as the public domain that protects you: That because it’s free to see on the internet, because it’s free to access on the internet, therefore it must be free to use and take from the internet,” Tobin said. “Free to view is not free to take. Copyright law does not work under a public domain model, by and large, unless the work was produced before 1925.”

Copyright infringement is using a copyrighted work without either permission from the copyright owner or justification under a recognized defense such as fair use.

“Copyright is a strict liability claim,” Smith said. “So even if you have every good faith belief that you were doing everything right, you still could be on the hook.”

Takeaway for journalists and communicators: Finding content through social media or an internet search does not mean that it’s available for public use. 

But what about images or video from the federal or a state government?

“The federal government does not have copyright protection for works that it creates and it posts,” Tobin said. “Conversely, a lot of state governments do have written into their laws copyright protection, and those have been enforced in the courts.”

How can journalists avoid common copyright pitfalls?

“The first and best way to protect yourself against a copyright claim is to get authorization, and that is not generally too hard to do,” Smith said.

Authorization does not have to be a formal contract; even a quick email — or DM exchange on social media — with the copyright holder can suffice. 

Tips for an informal license: 

  • Identify the work and format you wish to use, such as what photo or video you want to include.
  • State the purpose and scope of use, such as “for broadcast on WRAL” “for print and online articles” in Main Street News, or “for all platforms.”
  • Obtain representation that the person is the actual creator of the work.

Key copyright tips for journalists and communicators:

  • It’s always safer to get permission than to rely on “fair use.”
  • Make sure you are getting permission from someone who is authorized to give it.
  • Always license work from a clearinghouse (like Creative Commons) or use a public domain site rather than rip from an internet search.

Fair use factors for journalists

“Fair use is one of those things that can be difficult to anticipate and predict,” Gassmann said. The courts will consider four factors for a fair use: 

  • The purpose and character of the use, including whether it is commercial, for nonprofit educational purposes or if it’s transformative from the original.
  • The nature of the copyrighted work: Glassmann said that artistic and creative works will likely have more copyright protection, whereas facts are not protected.
  • The amount used in relation to the whole copyrighted work.
  • The effect on the potential market for the copyrighted work. 

What is likely a fair use?

  • Story is about the content or existence of the work or comments on it.
  • Only an excerpt is used. For example, if using a photo, make sure it is smaller and lower resolution than original. Or if using video, try a short clip. (Remember: There is no such thing as the “six second rule” in copyright law.)
  • Copyrighted work has already been published.
  • Photo or video were not shot by a professional.

How can journalists maximize a fair use?

  • Add context, new information, commentary, or analysis
  • Use only as much as you need, or show the image/video briefly
  • Alter the original image/video to include text, images, or markers
  • Crop to focus on specific elements (but retain © info on photos!)
  • With writings, consider whether you’re taking the “heart” of the work

What about directly embedding content into your website?

Embedding is when a publisher takes code from another website or social media platform to display an image so that it appears on their own website. 

“For a very long time in this country that was generally considered not to be a copyright infringement because there was no actual copy being made,” Smith said. “We used to advise people, you know, generally speaking, you’re probably going to be safe if you embed rather than make a copy to place on your own server.”

However, that rule has been challenged recently because of a couple of cases.

“It is usually going to be safer to embed than to make a copy and post it on your own server,” Smith said. “It’s not a get-out-of-jail-free card, but you have some arguments there in a way that you don’t if you just make a copy.”

Takeaways for journalists and communicators: Adding your own commentary to an image, cropping the picture, or putting it into context can help increase the likelihood of a fair use defense.

Click here to download program slides.

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