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âCan you fair use it?â
That was the defining question of the Online News Associationâs copyright class last week. This wasnât necessarily the most fun session of the three-day conference. But it was one of the most practical, and it answered questions that most journalists ask themselves every day and provide half-assed answers to.
Few journalists care about copyright law for its own sake. We come across a picture or a video or a great quote, and we want to know: Is it okay to post this? And the twisty logic of copyright means that itâs often easiest to just shrug and go for it. Youâre probably fine. Right?
The ONA session was aimed at giving reporters and editors more confidence in making those decisions. It was part of the conferenceâs âlaw schoolââa program thatâs been run for the past two years as an add-on to the main event, but this year was crunched down and run throughout the weekend.
âLaw shouldnât be a scary subject,â says Jon Hart, a lawyer who specializes in representing media companies, is ONAâs general counsel, and co-taught the copyright session. âAnd if we are successful in what weâre trying to do, weâre helping smart people think about the law and not be intimidated.â
Iâd recommend that any journalist whoâs posting pictures or video or any bit of content created by another person onto the Web take the time to listen to what Hart and media lawyer Eric Lieberman had to say in their copyright session. Even as someone who, at this point, knows a fair bit about copyright, I found that there were a few points on which I was, if not mystified, at least a little bit confused.
For instance, no one can hear this often enough: âAttribution doesnât excuse infringement.â Just because you give credit to a photographer and link to their site doesnât mean you can use their work.
And hereâs a subtle but important point made by Lieberman, who worked for years as a lawyer for the Washington Post and is now general counsel at the TV company Fusion. âYou should keep in mind that fair use is a defense to a copyright infringement,â Lieberman said. Copyright law wasnât designed only to help creators make money; fair use provisions help guarantee that other people can criticize, teach, or transform existing work. But itâs not a fail-safe. âThe burden is going to be on you to prove that you met the fair use requirements,â Lieberman said. âAnd youâre overcoming a presumption of copyright infringement. Youâre immediately starting on the defensive.â
That being said, youâre going to want to fair use things. Often.
Can you fair use it? Lieberman shared his own simple, helpful system for walking through copyright questions.
Begin simply. Ask first: Is what I want to use copyrighted?
The answer is almost always yes, âunless itâs really, really, really old,â says Lieberman. (How old is really, really, really old? âOlder than Mickey Mouse,â Hart suggested. âIf the copyright for Mickey Mouse comes up, you can guarantee there will be legislation extending copyright.â)
Next question: âDo I have permission to use it?â
If you can, get it. There are many ways: in writing, over the phone, in person, by Facebook, and âin an implied way by custom and practice,â said Lieberman. For instance, if thereâs an embed code on a video (and the person who posted it clearly owns the copyright), that counts as permission.
The key question: Can I use it, even without permission?
There is no simple answer to this question. And Hart and Lieberman emphasized that there are also no straightforward rules, either. There are four factors that determine fair use, and judges balance them against each other. But, Lieberman says, âjudges are all over the place.â There are no formulas here, no airtight defenses. The only clear answer: âIf youâre risk averse, you should get permission,â he added.
But Hart and Lieberman walk through how to think about each factor. Hereâs what I found most helpful for each point:
Whatâs the purpose and character of the use? If you want to illustrate a story with a photo, thatâs unlikely to slide. If youâre commenting on or analyzing that specific photo, youâve got a better case.
What the nature of the original work? âThe more creative the work, the less fair-use rights there are going to be,â Lieberman said.
How much did you use? If youâre using a photo, youâre probably going to use the whole thing. That counts against you.
Are you affecting its value? Is there a market for the work? In the case of photography and music, yes. âThere is clearly a market for clearing these things and paying for their use, and if you used it without permission, youâre going to get approached,â said Lieberman. âAnd you better have a pretty good reason for why you used it without paying for it.â
Hart and Lieberman went into more gory detail, and itâs all available, recorded, on ONAâs website. Itâs worth listening to. And hereâs a last bit of practical advice from the class: Give people a way, on your website, to contact you, if they think youâve screwed up.
Disclosure: CJR has received funding from the Motion Picture Association of America (MPAA) to cover intellectual-property issues, but the organization has no influence on the content.
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