Fair Use in Journalism: Balancing Public Interest and Copyright

Lately, I've been grappling with a question: Should I seek permission from website owners when quoting their content in my articles? Having taught journalism before the Internet era, I want to ensure my approach is rock solid. Here's what I found out.

In the digital age, journalists often face a common question: "Can I use content from an organization's website without asking for permission?" The answer, in many cases, lies within the fair use doctrine. This legal principle allows journalists to use copyrighted material without explicit permission when it serves public interest, especially in the context of news reporting, criticism, or commentary.

What is Fair Use?

Fair use is a defense in copyright law that permits the use of copyrighted material without needing to obtain permission from the rights holder, under certain conditions. In journalism, fair use can be especially important, enabling reporters to inform the public while maintaining their professional integrity.

Here are the four common scenarios where fair use applies in journalism:

1. News Reporting:

Journalists often rely on fair use when reporting news. As long as the use of copyrighted material isn't overly commercial or exploitative, it may fall under fair use. For example, in the case of Harper & Row v. Nation Enterprises, the Supreme Court ruled that The Nation’s use of unpublished excerpts from President Gerald Ford’s memoir did not constitute fair use because it violated the right of first publication and was commercially exploitative (RTDNA, 2014).

In a practical scenario, if a journalist is investigating an organization's activities and uses publicly available information from their website in a report, they likely don’t need explicit permission. However, if the material used is sensitive, private, or proprietary, permission should be sought to avoid legal issues and ethical concerns.

2. Cultural Reporting and Criticism:

Journalists frequently reference creative works like movies, songs, and books when critiquing or commenting on cultural phenomena. As long as the material used is necessary to illustrate their analysis and doesn't exploit the work commercially, it typically qualifies as fair use. For instance, quoting brief passages from a novel to support a review would generally be permissible.

3. Incorporation of Incidental Copyrighted Material:

Sometimes, copyrighted material is incidentally captured during news coverage, such as a song playing in the background of a public event. This scenario often qualifies as fair use, as long as the copyrighted content isn’t the focal point of the report.

4. Use as Documentation:

Journalists often use copyrighted material to substantiate their claims, such as using a photo or video as evidence. If used appropriately and with proper attribution, this too can fall under fair use. For example, if a journalist were reporting on environmental pollution and referenced images or reports from an organization’s website to validate claims, this would likely be covered under fair use as long as the material is used in context and not manipulated (Peters , 2013)

Case Studies

One of the most famous fair use cases in journalism is Harper & Row v. Nation Enterprises, where the unauthorized use of excerpts from an unpublished manuscript was deemed to infringe upon copyright. This case highlighted the importance of not using the "heart" of a work, particularly when it affects its market value. Another significant case is Sony Corp. v. Universal City Studios, where the court ruled that non-commercial uses, such as home recording of TV shows, leaned more toward fair use, emphasizing that commercial intent can play a significant role in fair use determinations (Lang, 2024).

Conclusion

The fair use doctrine empowers journalists to use copyrighted material in their reporting while maintaining ethical standards. However, journalists should always contextualize and attribute material to strengthen their fair use claim, and should avoid using content in a way that could be seen as exploitative or detrimental to the original work’s market value. In today's fast-paced news environment, understanding and correctly applying fair use is crucial for maintaining both legal and journalistic integrity.

By embracing the principles of fair use, journalists can continue to serve the public interest while respecting the rights of content creators.

References:

RTDNA. (2014, August). What every news organization needs to know about copyright law. What Every News Organization Needs to Know About Copyright Law - Radio Television Digital News Association. https://www.rtdna.org/news/what-every-news-organization-needs-to-know-about-copyright-law

Lang, C. (2024, February 5). Copyright in journalism and news reporting. Copyright Alliance. https://copyrightalliance.org/copyright-journalism-news-reporting/

Peters? , J. (2013, June 10). Finally: A guide for journalists to navigate fair use of copyrighted material. MediaShift. https://mediashift.org/2013/06/helping-journalists-use-copyright-law/