You are covering the story of a hit-and-run that left two people injured. You are positive about the name of the suspect, because the police released it, but the only picture you can find of him is a snapshot posted on his Facebook page. Can you run the photo with your story? Answering that question requires an understanding of both the copyright law and its exception for “fair use.”
The first fundamental to understand is that facts and ideas cannot be copyrighted. Copyright law protects the manner of expressing facts. The creativity. The statute uses the phrase “original works.” It doesn’t protect the facts themselves. The law plainly says, copyright protection does not extend to “any idea, procedure, process, system, method of operation, concept, principle, or discovery ….” That means you don’t violate a copyright simply by reporting information you gain from other sources. (After all, isn’t that the essence of every term paper ever written?) One way to conceptualize the difference might be to consider that recipes (which really are just a list of ingredients and instructions) can’t be copyrighted. However, a cookbook with artwork and vignettes alongside the recipes can be copyrighted.
The second fundamental to understand is that just because something appears on the web doesn’t mean it is in the public domain. Think about it. Most newspapers publish stories online but don’t intend them to be nabbed and read by the local radio station during drive time. Radio personalities can talk about the news – so can late-night TV hosts – but they cannot read it verbatim. So as you surf the web, keep in mind that anything you (or your company) didn’t write or photograph or draw, someone else did. And that someone else owns the copyright for that. That applies to everything from front-page news articles to photos posted on Instagram to this blog post.
If you want to use someone else’s work, you must do one of two things. Get permission or determine that your use is a “fair use.” As for getting permission, be sure you go to the right person. Generally speaking, companies “own” the work of their employees, so the person who wrote a magazine cover story probably isn’t the owner of its copyright. You need permission from someone with sufficient authority to speak for the company.
As for fair use, that’s an even trickier issue. My intellectual property professor at UNC always said, “Anyone who says he can give you a definite answer to a fair use question, definitely doesn’t understand fair use.” That’s because instead of offering black-and-white rules, the fair use statute, doctrine and cases offer factors for a court to consider and evaluate and weigh. There are, however, some basics that can inform your decision about whether to use something.
The first distinction to draw is between commercial and non-commercial uses. Putting someone else’s poem on the inside of a greeting card and selling the card is far more likely to cause copyright problems that using something in news coverage. (Even though you hope to sell your newspaper and make some money, publishing and selling a newspaper is not a “commercial use” for these purposes.)
The next two factors to consider are the nature of the original work and the impact your use had on the market for the original work. Opposite ends of the extreme would be a photograph taken by a professional photographer and a fraternity party selfie posted to Facebook.
The final factor a court will consider is how much of the original work is used. If your book review quotes a few sentences to show how good (or bad) the book is, that’s likely a fair use. On the other hand, if you use all of a work – whether it is a photograph or a poem — that weighs against fair use.
News organizations have a leg up on the fair use argument, because “news reporting” is identified in the law, by name, as a potential fair use. That doesn’t always answer the question, though, as Daniel Morel could tell you. Mr. Morel is a professional photographer whose photos of the 2010 Haitian earthquake were published without permission by many reputable news outlets. He settled his copyright claims with most of the alleged infringers, but two publishers didn’t settle. They went to trial, and a jury awarded Mr. Morel $1.22 million in damages for their use of eight photographs. His status as a professional photographer and the fact that the unauthorized uses supplanted fees he otherwise would have been paid for use of his photos figured significantly in the outcome of his case.
The bottom line is that no one can tell you with certainty whether you can use that Facebook photo for your broadcast or story on the hit-and-run accident. Using the work of a professional who otherwise gets paid for his work is always risky. Using all of someone else’s work is risky. And it’s risky to use someone else’s work in a commercial way – either to promote your product or services or as a product itself. Only a judge and jury can give you the final answer, and then it’s too late. But at least understanding the factors that judge and jury will weigh can give you a framework to evaluate the risks.
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