This Set of Principles was created by journalists convened by chapters of the Society of Professional Journalists and in some cases the Association of Alternative Newsweeklies. In 10 cities nationwide, they conducted 17 meetings, facilitated by Profs. Patricia Aufderheide and Peter Jaszi of American University. Endorsers include the Poynter Institute, New America Media, and others.

Journalists have created a set of principles that allows them to stop censoring their journalistic choices, especially in emerging digital environments. This Set of Principles reduces risk of copyright infringement by clarifying professional community standards. It identifies seven situations in which journalists routinely employ fair use, and what its limitations are: Incidental capture; proof; use in cultural journalism; illustration; historical reference; to foster public discussion and advancing the story.

Introduction

What This Is

This document is a statement of principles to help journalists in the United States interpret the copyright doctrine of fair use. It is intended for anyone who engages in the set of practices that entails creating media of any kind that refers to real-life events of public interest, in service of public knowledge, whether that person is a full-time professional or an individual who takes it upon himself or herself to report about specific issues or events. In other words, the definition of “journalism” to which this document speaks is defined by acts, not titles, and is an inclusive one, reflecting (in part) the changing nature of the technologies that support and enable journalistic practice.

Fair use is the right to use copyrighted material without permission or payment under some circumstances—especially when the cultural or social benefits of the use are predominant. It is a general right that applies even in situations where the law does not provide an explicit authorization for the specific use in question. As with more familiar rights of free expression, people use this right without any formal notification or registration.

This guide identifies seven situations that represent the current consensus within the community of working journalists about acceptable practices for the fair use of copyrighted materials. It identifies some common situations encountered by journalists, principles for the application of fair use in those situations, and the limitations that journalists recommend to define the zone of greatest comfort for employment of this right – all consistent with the development of the fair use doctrine in the courts.

What This Isn't

This set of principles does not describe the full extent of fair use rights. Instead, it describes how those rights should apply in certain common situations for journalists. The fair use rights of journalists may, of course, extend to other situations as well.

It is not a guide to using material that authors or owners give the public permission to use, such as works covered by Creative Commons licenses. Anyone can use those works the way their owners authorize—although other uses also may also be permitted under the fair use doctrine, depending on the terms of the license in question. Likewise, it is not a guide to the use of material that has been specifically licensed, which may be subject to contractual limitations, or to material that the journalist has received with permission and under some limiting terms, whether they are made orally or in writing.

It is not a guide to material that is already free to use without considering copyright. For instance, all works produced by an employee of the federal government on work time (and that include no third-party copyrighted material) are in the public domain, as are many older works. For more information on “free use,” consult the document “Yes, You Can!” (centerforsocialmedia.org/files/pdf/free_use.pdf). It is also important to remember that facts are not copyrightable. Thus, journalists (and anyone else) are free to report facts first reported by others, as well as reasonable inferences others have derived from facts, though not always in the same words. In addition, headlines and many ledes are freefor all to repeat, if indeed they are simple declarations of facts.

This is not a guide to ways of using material that are without copyright consequences. For example, current court decisions indicate that simply linking to content that is legitimately available online is an activity that copyright does not regulate.

Obviously, plagiarism, the representation of others’ work as your own, is never acceptable, and would also be infringing, if the others’ work were copyrighted.

Fair use does not apply in situations where a journalist or the journalist’s organization has contracted with another organization to provide materials. In most cases, contractual agreements that require payment for use—for instance, an agreement to pay for a photograph or a video clip if a trial version has been sent, or an agreement to pay per use for an acquired news photograph, or standing contracts with providers—override otherwise valid fair use arguments.

Likewise, this document does not deal with journalists’ legal responsibilities under bodies of law other than copyright, such as privacy, defamation, and national security. Nor does it address the current resurgence of interest (however well- or ill-founded) in legal regulation of the process by which journalists repeat “hot news” first reported by others.

Finally, this set of principles does not specifically address the issues raised by the 1998 Digital Millennium Copyright Act, which creates barriers to otherwise lawful fair uses of copyrighted materials that are available only in formats that incorporate technological protection measures (such as encryption), and prohibits the deletion of embedded information identifying the author or source of a document under certain circumstances.

How This Document Was Created

This set of principles was created by journalists, after the issuing of an American University report, Copyright, Free Speech, and the Public’s Right to Know: How Journalists Think about Fair Use, on the problems journalists face in understanding their fair use rights. With support from the Society for Professional Journalists, Patricia Aufderheide and Peter Jaszi, sometimes with legal colleagues, led 17 deliberative meetings in Baltimore; Boston; Chicago; Duluth, MN; Fort Lauderdale; Los Angeles; Minneapolis; New York; San Francisco; and Washington, D.C. In these meetings, common, recurrent fair use issues in journalism were discussed in depth by small groups of experienced practitioners. These meetings guided the drafting of the set of principles. The principles were reviewed by an expert legal advisory board, whose members are listed at the end of this document.

Fair Use

These days, copyright is ubiquitous – all kinds of new material, from the highly significant to the relatively trivial, is automatically protected upon its creation. Likewise, a wide swath of older material, dating back to 1923 or even before, is (and will for some time continue to be) subject to protection. United States law provides copyright protection to all kinds of “works of authorship,” whether deathless prose or someone’s to-do list. But this is only one aspect of copyright law, which was designed to implement government policy that fosters the creation of culture. Reusing existing cultural material can be, under some circumstances, a critically important part of generating new culture. In fact, the cultural value of this kind of re-use is so well established that it is written into the social bargain at the heart of copyright law, as inscribed in the United States Constitution.

The bargain is this: we as a society give limited property rights to creators to encourage them to produce culture. At the same time, we give other creators the chance to use that same copyrighted material, without permission or payment, in some circumstances. Without the second half of the bargain, we could all lose important new cultural work.

Copyright law has several features that permit quotations from copyrighted works without permission or payment, under certain conditions. Fair use is the most important of these features. It has its origins in 18th century British law, has been an explicit part of U.S. copyright for more than 170 years, and includes elements (the right to engage in criticism and commentary, for example) that are widely recognized through the world. In the U.S., where it applies, fair use is a user’s right. In fact, as the Supreme Court has pointed out (in its 2003 Eldreddecision and the 2011 Golan decision), fair use helps to keep copyright from violating the First Amendment. New creation inevitably incorporates existing material. As copyright protects more works for longer periods than ever before, creators face new challenges: licenses to incorporate copyrighted sources become more expensive and more difficult to obtain—and sometimes are simply unavailable. As a result, fair use is more important today than ever before.

Copyright law does not specify exactly how to apply fair use, and that gives the fair use doctrine a flexibility that works to the advantage of users. Creative needs and practices differ with the field, with technology, and with time. Rather than following a specific formula, lawyers and judges decide whether an unlicensed use of copyrighted material is “fair” according to a “rule of reason.” This means they will take all the facts and circumstances into account to decide if an unlicensed use of copyrighted material generates social or cultural benefits that ultimately are greater than the costs it imposes on the copyright owner.

Fair use is flexible—but it is not unreliable. In fact, for any particular field of critical or creative activity, lawyers and judges have long considered the shared opinions of practitioners in assessing what is “fair” within their field. In weighing the balance at the heart of fair use analysis, judges typically consider the non-exclusive list of “factors” mentioned in Section 107 of the Copyright Act: the nature of the use; the nature of the work used; the extent of the use; and its economic effect (the so-called “four factors”). This still leaves much room for interpretation, especially since the law is clear that these are not the only permissible considerations.

So how have judges interpreted fair use? In reviewing the history of contemporary fair use litigation, we find that judges return again and again to two key questions:

• Did the unlicensed use “transform” the copyrighted material by using it for a different purpose than that of the original, or did it just repeat the work for the same intent and value as the original?

• Was the material taken reasonably appropriate in kind and amount, considering the nature of the copyrighted work and of the use?

If the answers to these two questions are “yes,” a court is likely to find a use fair. Because that is true, such uses often are not challenged in the first place. Many of the cases that proceed into the courtroom involve uses that test the limits of fair use, rather than ones within the large field of common fair use practice

Both key questions touch on, among other things, the question of whether the use will cause excessive economic harm to the copyright owner. Courts have told us that copyright owners are not entitled to an absolute monopoly over transformative uses of their works. By the same token, however, when a use supplants a copyright owner’s core market, it is unlikely to be fair. For example, a journalist cannot reproduce large parts of a competitor’s article merely to avoid the trouble of doing their own reporting. Another consideration may influence the way in which these questions are analyzed in practice: Whether the user acted reasonably and in good faith, in light of general practice in his or her particular field. The fact that community practice influences judicial decisions makes it important for communities of practice to understand and articulate their fair use rights.

Many of the most common journalistic activities in which quoting, reproducing, or referencing copyrighted material occurs are self-evidently transformative, when done in a responsible and professional manner. This is true whether the journalist is working in print, audio, video, or online; fair use is not medium-specific. Likewise, the principles of fair use apply equally to a newspaper article, a piece of music, a film, a user’s tweet, and a website. However, since all fair use instances are context-dependent and case-by-case, potential fair users of copyrighted material should weigh all the circumstances in making a decision about how to proceed.

Journalists and Fair Use

Journalists have long depended upon the right of fair use to incorporate copyrighted material into their work, and to this day, they do so constantly. Journalists use it, often without thinking about it or even knowing they are doing so, to quote or paraphrase source material, to provide proof or illustration of assertions, and to engage in comment or critique, among other uses. Indeed, the business of journalism is sustained in part by fair use, which enables appropriate, timely, unlicensed quotations and references to newsworthy material.

Fair use protects journalists’ free speech rights from within the structure of copyright. Those rights fuel journalists’ mission to inform the public. Thus mission has a far-reaching effect; journalists play a key part in shaping the way members of a society understand the actions and motives of others – and sometimes of themselves. This self-understanding is generated not only by the headline news of the day and hard-hitting investigative reporting of government malfeasance, but by cultural criticism, editorial writing, sports reporting, beat, and community reporting.

Journalists’ fair use rights are particularly favored in U.S. copyright law. Criticism, comment and news reporting are all singled out in the law as specific examples of general purposes appropriate for fair use. But whether specific instances constitute fair use must be determined on a case-by-case basis.

For many years, journalistic practice on fair use was established by journalists’ newsroom conventions, often grounded in advice from manuals previously vetted by company lawyers, and on the occasional visit to their institution’s lawyers. Increasingly, journalists, particularly those who work outside of large media organizations, find themselves unsure about their right to quote copyrighted material, particularly in newer, digital formats and in social media. AsCopyright, Free Speech, and the Public’s Right to Know documented, the most common consequences of such insecurity are delay, higher costs, and failure to publish and innovate.

Journalists recognize that re-using copyrighted material is central to their work. Responsible aggregation is a key and perennial feature of journalism; journalists always have “advanced the story” by building upon the work of other journalists, whether through attributed quotation or unattributed reference. Of course, much common journalistic re-use of existing material does not even require fair use, since facts themselves are not copyrightable. Often, however, bare facts are not enough; the very words or images through which information is expressed may be part of the story. Thus, in practice, much journalistic re-use and follow-on work has always (if sometimes unknowingly) depended on fair use.

However, the rise of journalistic enterprises that embrace aggregation as a business model has created a heightened awareness, and sometimes alarm, about re-use and sharing of journalistic work. This document will help journalists understand what is acceptable re-use, and what the journalistic community, with expert legal advice, believes goes beyond fair use.

Journalists’ commonly-held understandings, as documented in the Statement, are drawn from the their collective experience and supported by legal analysis. This set of principles will enhance capacity to employ fair use, both for journalists and for their various gatekeepers, including editors, publishers, insurers and lawyers, who determine whether and in what form the work of journalists reaches the public. Thus, this set of principles helps to show that the uses of copyrighted materials described here are reasonable and appropriate for the purposes of journalism.

Fair use is in wide and vigorous use today in many professional communities beyond journalism. Some of these other professional communities have also set forth their understandings in consensus documents, including the 2005 Documentary Filmmakers’ Statement of Best Practices in Fair Use, which may be useful to some journalists. All these documents are available at centerforsocialmedia.org/fair-use. Although professional groups typically create such documents, no one needs to be a member of a professional group to benefit from their interpretations.