Kevin Goldberg is a lawyer for Fletcher, Heald & Hildreth and is the legal counsel to ASNE. You can address your legal questions to him at goldberg@fhhlaw.com and he will answer them in a later issue.
Q: AS OUR ONLINE PRESENCE INCREASES, I fear that my reporters have not fully grasped the concept of copyright, especially fair use as it applies to audio and video. How much is too much when we link to clips we find elsewhere?
A: First, there is a distinct legal difference between posting another's copyrighted material on your Web site and linking to that same content on another Web site. The latter situation can be dispensed of quickly because simply linking to another Web site is not considered a copyright infringement. In many instances, the linked Web site welcomes the traffic.
Linking to another's Web site raises technical and credibility concerns, especially if that Web site did not actually create the content you are trying to incorporate. There are legal concerns as well. You are unlikely to have actual knowledge as to whether that Web site has permission to use the copyrighted work, and you could find yourself in the middle of a copyright infringement action. The good news is that a simple link should not result in your being held liable for any form of contributory infringement, which usually requires some inducement, causation or material participation in the creation of the infringing work. Still, it's better to steer clear of YouTube, MySpace or other communal-type Web sites unless you can absolutely verify that the specific material to which you are linking is either in the public domain or posted with the permission of the copyright holder.
Understandably, you would prefer not to link to content in other sites. After all, the point is to retain your readers, isn't it? Linking to a video on YouTube not only provides readers with an opportunity to escape your site, it hands them the keys to the getaway car and a map out of town. They may not return.
Posting content directly in the body of a story or anywhere else on your Web site is still decidedly more dangerous in a legal sense. The owner of copyrighted content has an exclusive right to reproduce, display, distribute, publicly perform or create derivative works. Absent express permission to engage in one of these five actions, people often attempt to use the content anyway and claim that they have engaged in a "fair use" of the material. They are often ignorant that "Fair Use" is a statutory term that is quite limited in scope — certainly more limited than the user believes. Relying on Fair Use as a possible defense to a copyright infringement lawsuit is a dangerous proposition.
Fair Use is a legal defense found in Section 107 in the Copyright Act. The United States Supreme Court has classified Fair Use as an "affirmative defense" that requires the defendant to bear the burden of proof in court. The practical effect, then, is that you cannot be absolutely sure that you have made a Fair Use of copyrighted material until you have already been sued; you likely will have to expend a significant amount of time and money to resolve the issue. That is because the Copyright Act directs the court to review four factors in applying the Fair Use defense. All must be considered; none is dispositive. Analysis of each factor demonstrates the tenuous nature of the entire defense.
The court will first look at the "purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes." Courts have generally disfavored the use of another's work for a strictly commercial purpose that would prevent the copyright owner from receiving the full financial benefit of his or her efforts. While newspapers are obviously profit-oriented, at least to some degree, the societal value of accurate and informative reporting cannot be denied. Courts will favor the use by a newspaper of an audio or video clip when the use is legitimate news purposes, with the key question being whether the clip is included to enhance reader understanding of the story or whether it is an extraneous use designed to simply drive traffic to your site. The good news is that courts are conservative in their editorial second-guessing, often deferring to reasonable explanations of the news value of a particular piece of content.
The court will next look to the "nature of the copyrighted work." Courts are less likely to agree that use of another's copyright is fair when the original work is overtly commercial or creative; they are more likely to allow others unfettered use of nonfiction or factual works. Thus, utilizing factual amateur video footage for which there is still a potential commercial market is more likely to be considered fair than simply appropriating someone's own creative efforts or creative transformation of that footage, or the use of any footage that has been produced by or sold to another commercial outlet.
The most misunderstood factor of Fair Use deals with the "the amount and substantiality of the portion used in relation to the copyrighted work as a whole." Many, in fact, believe this to be the entirety of the Fair Use equation, claiming that a Fair Use exists because only a small portion of the original work was reproduced. While it is true that using only a small portion of a copyrighted work is more likely to be considered a Fair Use, a court will also consider the "substantiality" of the portion that is used and will find against a Fair Use when the taken portion is the chorus or best known beat of a musical work, or the climactic scene of a book or movie that reveals the ending. In other words, it does you no good to show just one play from the previous night's football game if that was the eighty-nine yard triple reverse trick play that completed a remarkable come from behind victory on the final play of the game.
Perhaps the most important factor is the one which best encapsulates the tension between the desire to reward the creative efforts of the author and the First Amendment interest in distribution of and comment on the content that is the very heart of the Fair Use defense. Courts have accorded great weight to the "the effect of the use upon the potential market for or value of the copyrighted work." Thus, in deciding whether to include an audio clip of a song or a video clip from a symphony performance, you should consider whether you are displacing a potential economic return for the original composer or performer (or whether you may ultimately be driving traffic to that artist's work to purchase from the artist, in which case you are on stronger ground in a Fair Use argument). But your decision may differ from artists' own perception or, worse yet, the real-life result. This is no place to be wrong.
I realize this article has probably raised more questions about Fair Use than it answers but, to a degree, that is the entire point. Reporters and editors who are unfamiliar with copyright law must first disabuse themselves of the notion that "if I only take a little bit, then I'm not doing anything wrong." There are many reasons that posting another's copyrighted material to your Web site is preferable to linking to another Web site, but the decision to post content directly on your site is a dangerous proposition that often defies concrete prediction as to the outcome. While in many cases the copyright holder will be happy, perhaps honored, to have his or her work associated with a major newspaper, others may see this as an opportunity to further publicize themselves or make a quick buck, forcing you to endure significant stress throughout a prolonged fight with significant uncertainty before any possible victory. *