Temptations of the Internet
How copyright law's "fair use" doctrine can help you legally use the things you find on the web.
Originally published in Dow Jones Newspaper Fund's Adviser's Update, Spring 2006
by Gary Clites
The laws of copyright and plagiarism have been a challenge for publication advisers as long as there have been photocopiers. But with the advent of the Internet and students' easy access to the intellectual property of others, the temptation on deadline to fill those little holes in the newspaper with material easily downloadable has become more and more intense.
Let's face it. We all know that it is highly unlikely a major publication or corporation would sue a student newspaper for grabbing a photo off the 'net to fill a space. But we also know it is bad educational policy to allow our students to bend the rules of copyright to solve their layout problems. Generally, that means requiring students to get written or at least verbal permission before using anything they download off the Web in a student publication. We also know how difficult it can be to get professionals to respond to student requests for permission to publish.
A little known tenet of copyright law may allow you to use some of the items students commonly download off the Internet without getting permission and in a perfectly legal manner.
"Fair Use" is a concept within copyright law which allows for the use or reproduction of copyrighted material under certain circumstances and for particular purposes. Specifically, Section 107 of Title 17 of the United States Code related to copyright law states that: "...the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." (To read the complete section, go to http://www4.law.cornell.edu/uscode/17/107.html.)
What does this mean to student publications? The portions of the law which refer to fair use for criticism, comment and news reporting can allow student reporters, especially those writing entertainment reviews, to legally download and republish portions of text from web sites and books, lines of dialogue from movies and TV shows, portions of lyrics for CD reviews, and, more usefully, illustrations to go along with any of these stories.
Let's be honest. Most of what our students want to download for use in their publications is not snippets of movie dialogue or quotations from novels, but rather bright, professional photos and art they can use to dress up their pages. Does copyright law's reference to "fair use" mean that students have a right to grab any illustration they want off the Internet and republish it? Hardly.
Fair use does allow for the republication of small amounts of material taken from the original owner of the copyright if the purpose is to convey the flavor and nature of the thing being written about and if the use does not diminish the value of the copyrighted material. Huh?
While the law is intentionally flexible and vague, in practice, (and remember, though I have two degrees in journalism, I am not an attorney) it means that students can probably legally use a lot of the things they find on the web. Students could illustrate a review of Seventeen magazine with a photo of the cover of the magazine. For a review of the movie Poseidon, they could go to Warner Brothers' official web site for the film and legally download a photo of a scene from the movie to illustrate the article. For a story about new Fall TV shows, they could visit the sites of the network programs and legally download publicity photos of the shows talked about in the article. For an article about the work and career of Green Day, students could legally visit the band's own official web site, download publicity photos of the group on stage, and then scan the cover of their latest album to complete their need for illustrations.
All of this would commonly be considered fair use of the material and, one might note, would constitute student journalists using the same kind of illustrations and publicity materials that are commonly distributed to writers for major press outlets by the studios and stars to generate the publicity and coverage they need to promote their products. Copyright law asks two things of your students, however: That they get their material directly from the owner of the copyright and that they identify the owner of the copyright when they use it. This requires that a note be published along with any illustration indicating the source of the material ("photo courtesy of Paramount Pictures," for example).
What are the limits of the fair use doctrine? A student writing a story about Shaquille O'Neal might be able legally to visit his official website, www.shaq.com, to grab a publicity photo. She could not, however, visit Sports Illustrated's site to download a photo of Shaq published by that magazine. Doing so would definitely violate the magazine's copyright. A student writing about the MySpace web site could legally download and publish the site's logo. He could probably not, however, legally publish copyrighted photos of bands included on various teenager's MySpace pages since the photos do not come directly from the band and the copyright ownership is in question. If an individual band has its own MySpace site, using a photo belonging to the band in a story about them would, however, be legal.
And while a student writing about the school shootings at Santee High School in California could probably visit the school's own web site and download a photo of the school from that site (something my students did), she could definitely not borrow a photo from WashingtonPost.com of students fleeing from the shootings without getting permission from the copyright owner, either the Post or a third party like the Associated Press.
The crucial things to remember are that to be legally available for "fair use," an image must be directly illustrative of the thing you are reviewing or commenting on in print; it must be copied directly from the source which must be a subject of the article and the owner of the copyright and; it must be accompanied by a note which acknowledges the owner of the copyright.
Fair use will never allow students to legally download news photos or other such material which belongs legally to other professional publications. It can, however, allow them to legally illustrate reviews and other features about entertainment and public figures who make their images available over the Internet.
(For more information on "Fair Use" and other copyright issues, visit the Student Press Law Center's excellent legal resources at http://www.splc.org/legalresearch.asp. For an excellent in depth article about the subject by an attorney, read Barbara Weil Gall's article "What is 'Fair Use' in Copyright Law?" on the Gigalaw web site at http://www.gigalaw.com/articles/2000-all/gall-2000-12-all.html