Mass Communication and Journalism: Media Law and Ethics - Copyright and Fair Use for Journalists

What It Is

Copyright and fair use are essential concepts for journalists to understand, as they determine what content can be used, shared, and repurposed without infringing on the rights of creators. A landmark case that highlights the importance of fair use is Campbell v. Acuff-Rose Music, Inc. (1994), where the U.S. Supreme Court ruled that a rap group's use of a copyrighted song in their song "Oh Pretty Woman" was fair use. This matters for media analysis, as it shows how fair use can be applied in creative and innovative ways, and for journalistic practice, as it emphasizes the need for journalists to understand the boundaries of fair use when using copyrighted materials.

Key Terms & Concepts

• Copyright: The exclusive right granted to creators to reproduce, distribute, and display their original works, such as music, literature, and art.
  • Example: The copyright law in the United States is governed by the Copyright Act of 1976.
• Fair Use: A doctrine that permits limited use of copyrighted material without obtaining permission from the copyright holder, for purposes such as criticism, commentary, news reporting, teaching, scholarship, or research.
  • Example: The fair use provision in the U.S. Copyright Act (17 U.S.C. § 107) lists four factors to consider when determining fair use.
• Public Domain: Works that are no longer protected by copyright, either because their copyright has expired or because they were never eligible for copyright protection.
  • Example: Works published before 1923 are generally in the public domain.
• Derivative Work: A new work that is based on or derived from one or more existing works.
  • Example: A movie adaptation of a novel is a derivative work.
• Transformative Use: A use of copyrighted material that adds value or insight to the original work, such as by parodying or critiquing it.
  • Example: The rap group 2 Live Crew's use of a copyrighted song in their song "Pretty Woman" was considered transformative use.
• Fair Use Factors: Four factors to consider when determining fair use, as listed in the U.S. Copyright Act (17 U.S.C. § 107):
  1. Purpose and Character of the Use: Is the use for commercial or non-commercial purposes?
  2. Nature of the Copyrighted Work: Is the work a creative work or a factual work?
  3. Amount and Substantiality of the Portion Used: How much of the copyrighted work is being used?
  4. Effect of the Use on the Market for the Original Work: Does the use harm or help the market for the original work?
• Fair Use in Journalism: Journalists often rely on fair use to use copyrighted materials, such as quoting from a book or using a copyrighted image.
• Copyright Clearance Centers: Organizations that help journalists and other users clear the rights to use copyrighted materials.
• Creative Commons Licenses: Licenses that allow creators to grant permission for others to use their work under certain conditions.
• Public Domain Works: Works that are no longer protected by copyright, such as works published before 1923.
• Derivative Works in Journalism: Journalists often create derivative works, such as news articles based on press releases or interviews.
• Transformative Use in Journalism: Journalists often use transformative use to add value or insight to copyrighted materials, such as by analyzing or critiquing them.

Common Misunderstandings

• Misunderstanding: Fair use is only for non-commercial purposes.
• Correction: Fair use can be used for both commercial and non-commercial purposes, as long as the use is transformative and does not harm the market for the original work.
• Misunderstanding: Public domain works are always free to use.
• Correction: While public domain works are no longer protected by copyright, they may still be subject to other restrictions, such as trademark or publicity rights.
• Misunderstanding: Derivative works are always infringing on the original work's copyright.
• Correction: Derivative works can be created with permission from the original copyright holder, or they can be considered fair use if they are transformative and do not harm the market for the original work.

Quick Application / Identification

Scenario: A journalist wants to use a copyrighted image in their article, but the image is not transformative and will harm the market for the original work. What should the journalist do?

Answer: The journalist should not use the image, as it does not meet the fair use factors.

Explanation: The journalist's use of the image is not transformative, and it will harm the market for the original work, so it does not meet the fair use factors.

Last?Minute Revision

• Fair use is a defense against copyright infringement, not a right to use copyrighted materials.
• The U.S. Copyright Act (17 U.S.C. § 107) lists four factors to consider when determining fair use.
• Public domain works are no longer protected by copyright, but may still be subject to other restrictions.
• Derivative works can be created with permission from the original copyright holder, or they can be considered fair use if they are transformative and do not harm the market for the original work.
• Transformative use is a key factor in determining fair use.
• The fair use provision in the U.S. Copyright Act (17 U.S.C. § 107) is often cited in court cases.
• Campbell v. Acuff-Rose Music, Inc. (1994) is a landmark case that highlights the importance of fair use.
• The Copyright Act of 1976 governs copyright law in the United States.
• Creative Commons licenses allow creators to grant permission for others to use their work under certain conditions.
• Public domain works can be used freely, but may still be subject to other restrictions.
• Derivative works can be created with permission from the original copyright holder, or they can be considered fair use if they are transformative and do not harm the market for the original work.
• Transformative use is a key factor in determining fair use.
• The fair use provision in the U.S. Copyright Act (17 U.S.C. § 107) is often cited in court cases.
• Harper & Row v. Nation Enterprises (1985) is a landmark case that highlights the importance of fair use.
• The U.S. Copyright Act (17 U.S.C. § 504) governs damages for copyright infringement.