A recent newsroom workshop prompts me to offer up a refresher on how to stay out of copyright trouble. Imagine a member of your newspaper is working on a story about the end of summer and the rush of people taking final getaways to the beach on Labor Day weekend. Your paper is inland, so you can’t just walk out the door and get a good picture of the ocean or people enjoying the beach. The staffer has found some excellent images online, though, and they would work nicely to accompany the story. You are the editor or publisher talking with the writer. What do you say? Red light/green light?
Before you answer, remember a few things. First, the copyright law changed in 1976. The creation of a copyright is essentially automatic every time someone creates something original that is written or recorded or in some way reduced to tangible form. The upshot of this is that you can reach no conclusions from the absence of a copyright notice on something you see online. Unless someone from your paper created the image you are considering, the one thing you know is that someone else owns the copyright. And if someone else owns the copyright, there are only two bases to justify using it: get permission or determine that your use is a fair use.
There are essentially two ways to get permission to use an image you find online. The easiest way is to use images available through sites such as Creative Commons. There often are terms posted that you must follow. For example, some photos on Creative Commons have the restriction that you must publish the photographer’s name along with the photo. Some say that you cannot use the photo for a commercial endeavor. Check out the Journalist’s Guide to Creative Commons 2023 if you have a newsroom that is longer on ideas than budget. In addition to collections such as Creative Commons, remember the federal government does not hold copyrights in images it creates, and some agencies post photo galleries of images available for media use. For example, the National Weather Service has a media page related to rip currents, and you would not need NWS permission to use the graphics they have created that explain rip tides. Or you could go to an agency’s photo gallery. How many hundred times have we all see the CDC’s image of COVID-19? North Carolina law doesn’t contain an explicit statute that makes clear government-created works are in the public domain, but the N.C. Public Records Law states that public records are “the property of the people,” which certainly supports that argument. Both the federal government and the North Carolina government sometimes possess works whose copyrights are held by someone else. Think about the Library of Congress, housing millions of volumes of absolutely copyright-protected books. But works created by government agencies and employees should be available for rights-free use.
For photos that are not available copyright-free, you will need to ask the copyright holder for permission, and the important thing to remember is that you must ask the right person. If a photo is taken by a staff photographer for a newspaper or TV station, for example, the photographer likely is not going to own the copyright. The corporate publisher does, so you need to ask someone with authority – someone in management – for permission.
If you don’t have permission to use the photo in question, your only alternate justification would be fair use. You surely have heard that term before but may not know exactly what it means, what it covers or how it works. Fair use is a defense that is provided as part of the federal copyright statutes, but the challenge is that the statute creates a sliding scale of fairness that often is not black and white.
If you decide that your contemplated use is a fair use, and you get sued, then a judge or a jury will decide whether your use is “fair,” considering four factors. These are the factors you should think about when deciding how risky it is to use that picture of the shoreline. The first two factors are the nature of the alleged infringement and the nature of the original work. An allegedly infringing use that is utterly commercial, such as use in an ad campaign or on greeting cards that are sold, is less likely to be considered fair than a use that is noncommercial, such as in an educational environment or in a news report. If the copyrighted work was highly creative, the use will less likely be considered fair than if the copyrighted work was more factual or technical.
The third factor is how much is used. If you use all of a work, or if you select the essential part of a work, your use may not be fair. (To think about what it means to use “the heart” of a work, consider the first two notes of the Jaws theme song. It’s hard to imagine two notes that are more well-known or evocative.) On the other hand, if the amount used is small or nonessential, the use may be fair. Somewhat related to the “how much” question, the fourth factor is the effect the alleged infringement has on an existing or future market. If the secondary use acts as a substitute for the copyrighted work, it likely will not be fair use. Whether there even is a market for the original work could impact this factor. For example, there is no market for the photos I post on Facebook.
In the words of the U.S. Copyright Office, “Courts evaluate fair use claims on a case-by-case basis, and the outcome of any given case depends on a fact-specific inquiry. This means that there is no formula to ensure that a predetermined percentage or amount of a work—or specific number of words, lines, pages, copies—may be used without permission.” U.S. Copyright Office Fair Use Index. The price tag for gambling and losing on fair use can be steep. The statutory damages for copyright violation range from $750 to $30,000 per violation, and there is no way to determine with certainty how a judge or jury will come out on the fair use analysis. For all these reasons, it is far preferable to have permission (directly or through a free rights website) or use only original material rather than relying on a best guess evaluation of fair use. That’s not always possible, though, so think slowly and carefully about the four factors if you find yourself making a fair use evaluation of material created by someone outside your newsroom, dark room or art department.
If you are interested in copyright issues, we at Stevens Martin Vaughn &
Tadych, PLLC have experience with these proceedings and can help you navigate your
options. You can contact us at 919-582-2300, and NCPA members are always welcome
to email us at email@example.com.