Fair Use Question of the Month: Advancing Other Journalists’ Work

I work for an online agricultural newsletter and we’re doing ongoing analysis and coverage of the aftermath of a tragic natural disaster that recently hit the Midwest. Our expertise is really in agricultural science, and we depend on other sites to do the breaking-news stuff. What we want to do is put that breaking news into context and explain its implications for the farming operations in the region and the national services they link up to.

We’re having some questions about when it is OK under copyright to put other journalists’ work on the site, and how much of it is OK to use. Some people say all we can do is put up links, and other people say that’s not helpful and we should copy out material so our readers don’t have to hop between sites. And someone said we can only copy 400 words. Can you help?

Best,

Emma

Dear Emma,

Thank you for your question. What you’re doing is advancing the story–adding value to previous work by adding to the story, variously by explaining, analyzing, and doing new reporting. To do that, you’re aggregating other work.

This is a venerable tradition in journalism. In the pre-digital days, journalists quoted each other or just built known facts into their reporting. (Facts can’t be copyrighted.) In the digital era, you have many more options for harvesting, sifting, and presenting information. Fair use, the copyright right that permits unlicensed use of others’ material if you are creating new culture with it and using the appropriate amount, is valuable in the effort of advancing the story.

But how much and what kind of use is OK? Your colleagues’ advice isn’t actually helpful, although we hear answers like that a lot. It’s always safe to provide links, and if that’s all you need, great, but that might not actually be sufficient for your purposes. There isn’t any 400 word limit or, for that matter, any other kind of hard-and-fast rule about fair use in the law. And you need a reason to take other people’s work and copy it onto your site. Fair use depends on context and reason.

Fortunately, you can consult the wisdom of your crowd, the journalists, by consulting the Set of Principles in Fair Use for Journalism. The seventh situation can help you: “Fair use can apply to the quotation of earlier journalism.”

Fair use, like all rights of freedom of expression, depends on context for its validity. So look at what context you’re putting this material into. Ask yourself the questions journalists decided are best practices to ask:  Is it clear how you are adding value to your work? Are you relying on more than one source? Are you using the appropriate amount for your purpose? Are you attributing responsibly? And did you ever make any contracts that void your fair use rights?

Once you have answered these questions, you’ll be able to figure out whether using the work of other journalists constitutes fair use in conformity with the consensus of the profession, and you can make your fair use call with confidence.