Know your rights: Fair Use

Though it’s tempting to make a meta-joke and simply copy/paste the entire study here, here’s a pointer toward an excellent study from American University released recently on journalists and the concept of Fair Use.

It makes three important points:

  1. Overall, journalists have very little idea what Fair Use really is.
  2. Somehow, thought, many journalists intuitively apply its principles correctly, despite point #1.
  3. The overall lack of knowledge often leads to self-censorship in order to avoid potential (but, often, non-existent) legal threats.

The most common erroneous fair use understandings were:

  • Fixed amount. They often believed that there was an absolute number out there somewhere, beyond which lay lawsuits. (This common misapprehension is reinforced by a plethora of misguided attempts, available on the Web, to simplify fair use decisions.) Examples varied: “three graphs from a New York Times Magazine,” or “two to five paragraphs but make damn sure you source and attribute and are transparent and don’t use a whole page” or “keep it under 30 seconds” or “100 words in an article and 300 words in a book.” The comments of one print journalist—“the rule in the back of my head was it should only be a few seconds”—embodied the typical rule-of-thumb understanding many articulated.
  • Noncommerciality. A journalist working in public media said, “there’s an attitude that it’s more loose because it’s not for profit.” In fact, the dispositive factor in fair use is transformativeness—recontextualizing. While noncommerciality can feature in a decision, it is a secondary feature and never one that can make the difference. Furthermore, most journalism, including public broadcasting, has commercial elements.
  • Market loss. Another common but erroneous belief was that the “fourth factor” of fair use—effect on the market—was key. One academic said, “Infringement on the copyright holder’s ability to make money from their original work is the issue.” While relevant up to a point and within context, this factor is not dispositive in today’s legal climate. The key concept of transformativeness will safely ensure that a new user will not sap the market for the original work, even if the owner suffers the (hypothetical) loss of a licensing opportunity.

I’ve seen all of this, and more, in action. Sadly, so far this hasn’t resulted in an epic Supreme Court case settling the matter once and for all, but rather a creeping over-cautiousness — the study calls it self-censorship — among news organizations which should know better, but don’t.

One speck of potential good news in the study:

In a convening of leading journalists and journalism professors to assess the implications of these findings, attendees formulated an expectation that journalists should shape a set of principles that would articulate an appropriate interpretation for the field of a fair use doctrine. Subsequently, the Society of Professional Journalists undertook this project, with the help of the Washington College of Law’s Program on Information Justice and Intellectual Property and the Center for Social Media at American University. The set of principles is expected in 2013.


(I found the link to this study in an article by Andrew Beaujon on Poynter.)

Tim Windsor

VP, Content & Conversion at LendingPoint LLC
I lead media companies and other organizations that want to develop and improve their mobile and digital strategies and technologies, grow audience, and build sustainable digital revenue.