Copyright and Fair Use

What Local Publishers Should Know About Copyright and Fair Use

Copyright and fair use isn’t the sexiest topic in local publishing, but with interpretations of existing regulations currently in a state of flux, these legal standards are something that publishers can’t afford to ignore.

Most local news publishers don’t come into the business with a legal background, and U.S. copyright standards are the furthest thing from most journalists’ minds when they decide to start reporting for community publications. For smaller publications without an attorney on staff, it’s up to publishers themselves to know when the use of unlicensed photos is permitted and how much of another website’s content can be quoted before the fair use doctrine becomes a concern.

A few of the most common copyright and fair use questions that local news publishers face include:

  1. In what instances is it acceptable to use an image from the web to illustrate an article?
  2. How much of an article can you quote in a round-up piece without running into copyright issues?
  3. Do reporters need permission to use someone else’s work if they use quotation marks?
  4. When is it OK to use an infographic that someone else designed?
  5. When should you complain about the theft of content by other publishers?
  6. Could lawsuits arise from comments posted by readers?

The answers to these questions depend on the details of individual scenarios, and an attorney with a background in copyright law can be especially helpful when cases like this come up. (And they will, for most publishers.)

For the most part, journalists are given broad latitude in using copyrighted material without permission when the cultural or societal benefits are clear. Under the fair use doctrine, reporters have the right to quote and use copyrighted material without permission if they’re “transforming” it into something new.

For the purposes of news reporting and blogging, it’s generally acceptable to use portions of another author’s materials, as long as the use is limited. That falls under the fair use defense, which places limitations on a copyright owner’s exclusive rights to work. According to the Center for Media and Social Impact, copyright law does not specify how to apply fair use, which gives judges some leeway in deciding when the use of copyrighted material is reasonable.

The following examples would be considered legally acceptable under the fair use doctrine:

  1. A publisher excerpts a portion of a book or article within a larger review of the work, or to illustrate a point.
  2. A news reporter quotes from a speech or another reporter’s article, even without first getting permission.
  3. A cartoonist or illustrator imitates work for the purpose of parody or comedy.

Giving an author credit or putting copied material in quotations is not always enough to get around copyright and fair use laws. The amount of work that has been taken is also a consideration.

Including a paragraph from a book in a book review is less of a concern than republishing an entire chapter. Although there is not a specific word limit, within the news industry the standard has become to avoid quoting more than a few successive paragraphs at a time without getting permission from the original author.

Social media has complicated copyright and fair use for local news publishers. For example, it’s widely understood that publishers cannot use people’s Facebook profile photos without first seeking permission. And even in cases where permission is sought, due diligence is still necessary to ensure that the person giving permission to use a social media image actually has the authority to do so. Many local news publishers have enacted blanket policies to not use images from Facebook or Instagram as a way to avoid running into these types of copyright and fair use issues.

Finally, here are four questions that publishers should ask themselves as they weigh whether content on their websites runs afoul of copyright and fair use rules.

  1. How much of the copyrighted work was used?
  2. Has the copied work been used to create something entirely new?
  3. Has the original creator or source been credited?
  4. Is the publisher in competition with the source that’s being copied from?

For more information on how copyright and fair use applies to local news publishers, check out this guide from the Center for Media & Social Impact.