Copyright

Journalists rely on the fair use doctrine which specifically allows for criticism, comment, and news reporting.  In fact, fair use provides a necessary outlet in the form of a constitutional safeguard for free speech, one of the cornerstones of journalism, that allows journalists to inform the public about important issues.

The fair use doctrine enables reporters to briefly quote books, movies, songs, and other works in order to report on them.  Similarly  film clips and other media are frequently used online or in radio and tv for purposes of criticism or comment.  Journalists can employ fair use for any type of media in any forum.

There are, however, some principles to be aware of.  First, one should always look to see how content has already been licensed.  For instance, Creative Commons licenses allow individuals to license their content so that others can use it more freely.  Journalists also traditionally rely on a "rule of proportionality."  In other words, journalists can use as much of a copyrighted work that they need to accomplish their goals but only as much as is reasonably appropriate to accomplish that legitimate purpose. Therefore, journalists cannot rely on arbitrary benchmarks such as 10% or 20% of a copyrighted work for fair use.  Finally, journalists believe in giving each other credit for work either with attribution (citing an appropriate source), and, where possible, with payment.  Fair use should be used as much as necessary to inform the public about important matters, but not at the cost of these basic principles.

Journalists’ fair use rights are particularly favored in U.S. copyright law. Criticism, comment and news reporting are all singled out in the law as specific examples of general purposes appropriate for fair use," write Peter Jaszi and Pat Aufderheide in their Set of Principles for Fair Use in Journalism.  They have created video answers to frequently asked questions in journalism on the website of the Center for Media and Social Impact.  Jaszi and Aufderheide note several instances where fair use is particularly important for journalists including:

• Incorporation of copyrighted material captured incidentally and fortuitously in the process of recording and disseminating news
   
• Use of copyrighted material as proof or substantiation in news reporting or analysis
   
• When copyrighted material is used in cultural reporting and criticism
   
• When copyrighted material is used as illustration in news reporting or analysis
   
• When copyrighted material is used as historical reference in news reporting or analysis
   
• Using copyrighted material for the specific purpose of starting or expanding a public discussion of news
   
• Quoting from copyrighted material to add value and knowledge to evolving news.

The Center for Media and Social Impact has released two particularly important guides for those who are incorporating film clips and other media into their work including:  Recut, Reframe, Recycle on using user-generated video and the Documentary Filmmakers' Statement of Best Practices in Fair Use for using commercially produced video, particularly documentary films.  These reports identify several principle areas where using another work is a fair use: 

For user generated content  use may be fair if journalists are creating

• satire or parody
• negative or critical commentary
• positive commentary
• a quotation to start a discussion
• illustration or example
• reportage/diaries
• pastiche or collage
• archive of vulnerable or revealing materials

For commercial films - use may be fair if journalists are

• commenting on or critiquing copyrighted material
• using copyrighted material for illustration or example
• capturing copyrighted material incidentally or accidentally
• reproducing, reposting, or quoting in order to memorialize, preserve, or rescue an experience, an event, or a cultural phenomenon
• copying, restoring, and recirculating a work or part of a work for purposes of launching a discussion
• quoting in order to recombine elements to make a new work that depends for its meaning on (often unlikely) relationships between the elements

Some footage is in the public domain.  Pre-1964 films that do not have a copyright notice or whose copyright was not renewed are in the public domain.  Copyright protection is not available for films shot by United States government agencies and employees in the course of their employment.

Using clips of other motion pictures or television broadcasts in a film may require a license.  In addition, the show business unions (e.g., Directors Guild of America, SAG-AFTRA) require that permission be obtained from the directors and actors in clips and payments made to them or their estates.  Stock footage houses can supply footage for use in films that need background footage (e.g. footage to show on a television the characters are watching) or establishing shots (e.g. traffic in Chicago) inexpensively and free of copyright and clearance issues.  If there is music in the clip and there is not a fair use basis for the use of the clip, then permissions for the use of the music will need to be obtained.

Donaldson and Calliff's Clearance and Copyright is a helpful book in this area.