Fair use in the age of new media


I went to a fascinating meeting on Friday about how journalists use copyrighted material on the job. It was organized by the Center for Social Media, of American University, and I was invited to give feedback with a group of other journalists on what we consider “fair use” of copyrighted material.

Unfortunately, we were asked to keep the conversation confidential, so I won’t get into detail what the other journalists said, but I will say that my mind was blown by the whole discussion.

Honestly, before I read the report that we were provided before the meeting (Copyright, Free Speech, and the Public’s Right to Know), I didn’t really know what fair use was. Unlike traditional reporters, I never went to journalism school. I’m the product of “new media,” starting out as a citizen journalist, now pretty much scraping a living at it, along with acting and teaching. I started writing in 2008, and I’ve just been learning as I go.

It turns out that I’m not alone in my confusion. In the area of copyright law, there’s this whole realm of fair use, which is not clear at all, and a whole other realm of contract law — which is a lot more clear and quite Kafka-esque.

Okay, so let’s start with copyright law. Copyright law in the United States is very generous for the copyrighter. According to Patricia Aufderheide, who led the discussion, it was part of our country’s scheme to keep American creators creating stuff here rather than going to England and getting their book or whatever copyrighted there.

You don’t even need to get an official copyright. As soon as you create something — anything — whether it be something you’ve typed on your computer, or scribbled in your notebook, it’s copyrighted. 

(Note: The above three paragraphs are taken from what I learned from Patricia Aufderheide, who led the meeting. I took notes during the first part of the meeting, in part because I was nervous it was something to do with my hands. I didn’t look at my notes when I was just writing these three paragraphs, but I think I should attribute this knowledge to her.)

Anyway. So copyright law is super bent toward people who create ideas. But the problem, of course (again loosely summarizing Aufderheide’s words without looking at my notes) is that if you copyright everything, how can new creations happen? No one creates something out of nothing — you create out of what comes before.

To give an example — well, Shakespeare, who never made up a single story. A more recent example is Charles Mee, one of my favorite playwrights, whose work is a conglomeration of source material ranging from the Greeks to popular culture. Mee has written on his website that theater companies are free to steal freely from his work, as long as they transform it. If they want to produce his plays as-is, they have to cough up the license fees. 

But I’m not talking about plays, I’m talking about journalism.

In a report written by Aufderheide and Peter Jaszi, fair use of copyrighted material boils down to two questions that help categorize fair use as such:

  1. “Is the new use of copyrighted material “transformative”- i.e. Reusing for a new purpose rather than repeating the use for which there is an existing market?
  2. And if so, is the amount used appropriate (even if it’s 100 percent) to the new use?”

Our conversation revolved around these two tenets, with the discussion reacting to different scenarios that Aufderheide laid out for us.

Most of the discussion and the anxiety, for me, revolved around photography. I’m not sure why, but to me that seemed to me way less “okay” to use without permission. A writer might paraphrase another writer, with an attribution and quotation marks if it’s a direct quote, and that seems legitimate to me, so long as they aren’t quoting the whole article. But with a photo — you don’t generally “quote” a photograph — you either use the whole thing or you don’t.

Even with writing, I tend to feel that over-quoting isn’t good form. I say this, despite the fact that I read Huffington Post every day without fail. But clearly they are one of the worst offenders of the practice of taking others’ work and spewing it out as something new. 

It’s strange to feel like I’m taking the conservative position. But if content creators aren’t paid for their work, if it’s just going to be used freely by others and justified as fair use, how can they continue to create? I feel like it leads to a future of fewer and fewer media producers having a monopoly, and just taking whatever they please.

There are several issues going on. There’s the actual legality of it, and then there’s the ethics, and then there’s common courtesy.  The system only works if everyone agrees to it. For that reason I’m glad The Center for Social Media is embarking on this. A guide, I think, would be helpful, to delineate what is okay to do and what isn’t.

But who knows if anyone will even read their report or follow it? 

The fact is: if people can’t get paid for creating things, what is the incentive? And what is the incentive for creating quality content? For an 18-year-old today who is interested in photography, why on earth would he go into the field, when there is no hope of actually making a living at it? If we don’t value content creators, how can we expect them to prosper? On the other hand, I do see the point that in order for people to be free to create, they need to have SOME leeway in terms of riffing off other’s work.

I’m curious about your thoughts. Share them below!