About a half century ago, when the existing Copyright Act was enacted, the nature of journalism did not look like the fast-paced nature of the field today. Reporters, editors, fact-checkers, publishers, and other news gathering individuals would spend months compiling facts in creative and unique ways to build news stories that would captivate readers. Today, journalism appears to be more focused on being the first to report breaking news. In the digital age, once an important piece of breaking news is reported on, it is only a matter of minutes before several news publishers and non-news entities begins reporting on the breaking news too.
If one of the goals of journalism is merely to be the first to report on breaking news to keep the nation informed, why don’t all news platforms simply wait for one publisher to publish a news article then copy the content directly to their own platform? That is because there are copyright protections for journalism and news content—protecting the creative expression contained in news content ranging from articles to videos that deliver breaking news.
Intended to serve the purpose of enriching the public through access to creative works, copyright law serves that purpose by inducing and rewarding authors to create journalistic works to be disseminated to the public. A copyright is a collection of exclusive rights belonging to someone who creates an original work of authorship. The people or entities who create the work are referred to as “authors” and the rights granted to these author under copyright law include the right to reproduce the work, to prepare derivative works, to distribute copies, to perform the work publicly, and to display the work publicly.
A work is automatically protected from the moment of its creation, so long as three basic requirements are met:
The laws regarding copyright in journalism and news reporting are no different. Specifically in a single journalistic piece, there are several elements that can be afforded copyright protection. First, the text—but not the underlying facts—of the journalistic piece may be afforded copyright protection because of the independent creativity a journalist uses in writing the piece. Further, any original photography in the piece may be protected under copyright law because of the creative decision-making involved in creating the photograph.
Consider, for example, two famous articles written about Harvey Weinstein’s sexual misconduct that discuss the same topic, contain similar facts, and recount the stories of the same victims: but the journalists take different approaches and use different expression to present those facts and stories. Specifically, the first sentence of each article expresses a different important point to prime the reader for the rest of the piece: one discussing an anecdote from a victim and the other discussing the domineering personality of Harvey Weinstein. The differences in just the first sentences are evidence of the creative expression a journalist employs in writing news articles.
While the requirements under copyright law clearly do not present any difficult obstacles in obtaining copyright protection for journalistic works and news reporting, there are some elements in news content that copyright law will not protect, such as mere facts, and there is an important exception to consider: the fair use defense.
Section 102(b) of the Copyright Act provides no “idea, procedure, process, system, method of operation, concept, principle, or discovery” can be granted copyright protection. Copyright law protects the expression of an idea, not the idea itself or any processes or principles associated with it. Similarly, copyright law does not protect facts and information because facts are not expressions of authorship.
For example, consider two news outlets publish articles breaking news about who is the next President. The fact of who became the new President would not be protectable under copyright law; otherwise, only one entity could own the fact and prevent others from freely discussing the fact. Instead, the expression of that fact; the two articles from different news outlets with different sentences, paragraphs, photographs, and other creative elements, may be protectable under copyright law.
This limitation might raise concerns for journalists as most reporting is highly fact-dependent.However, jjournalistic pieces are much more than just mere compilations of facts and preexisting materials. They often involve highly creative decisions on sentence structure, word choice, and organization to deliver news with impact and accuracy: expressions which copyright law was designed to protect.
Copyright protection for journalism and news reporting will depend on the degree of creativity that a journalist applies when presenting the facts of an article. For example, a list of MLB baseball scores alone would not be protectable under copyright law; while a description of the game, including the score, would be protectable.
In addition to knowing that copyright law will not protect mere facts contained in an article, journalists should also be aware of the fair use defense in copyright law which permits someone else to use copyrighted material without authorization of the copyright owner.
Quoting, paraphrasing, or attributing information to outside sources are some of the most important and often necessary tools in journalism for journalists to remain unbiased and truthful or to help a journalist illustrate an important point. Often journalists rely on or may need to incorporate copyrighted materials such as videos, audio clips, or portions of a text, to report the news accurately, fairly, and completely. However, if journalists were required to always obtain permission from the copyright owner to use copyrighted material in every instance, news media and similar organizations may become burdened and limited in their ability to report the news.
Therefore, fair use is an important defense for a journalist to be aware of when they are using someone else’s copyrighted work. Fair use permits a party to use copyrighted works without permission of the copyright owner and without compensating the copyright owner for the use. The fair use exception, which is in section 107 of the Copyright Act, provides some examples of uses that may qualify for the fair use exception, including criticism, comment, news reporting, teaching, scholarship, or research.
In the context of journalism, using copyrighted material may fall under more than one of those uses. However, journalists should be aware that just because use of a copyrighted work falls into one of the illustrative categories listed in section 107 doesn’t mean the use is automatically going to qualify for the fair use exception.
There are no bright-line rules for fair use, meaning courts will determine whether an otherwise infringing use constitutes a fair use on a case-by-case basis. There are four factors that courts must balance in making this determination:
All the factors must be considered and not one factor on its own can determine whether a use constitutes fair use. However, there are several guiding principles for journalists to remember when they are considering whether an unlicensed use can be a fair use.
One of the most well-known copyright and fair use in journalism cases is Harper & Row Publishers, Inc. v. Nation Enterprises. The Supreme Court of the United States held that quoting 300 words of an unpublished manuscript in a magazine article constituted copyright infringement and that the unlicensed use did not qualify for the fair use exception.
Harper & Row Publishers, Inc. drafted a manuscript autobiography of President Gerald Ford and sold exclusive rights to publish excerpts to Time Magazine. A source leaked the unpublished manuscript to The Nation Magazine (The Nation) (defendant), who then quickly published an article paraphrasing and directly quoting from the manuscript.
Although the manuscript contained information of great public interest, the Supreme Court concluded “the traditional doctrine of fair use… [did] not sanction the use made by The Nation of these copyrighted materials” and illustrated how a journalist can analyze fair use in a journalism or news reporting context.
1. The Purpose and Character of the Use: Simple Commercial Uses of “Scoops” Would Weigh Against Fair Use
When applying the first fair use factor, courts must consider whether the unlicensed use is commercial or non‑profit in nature. If a use is commercial in nature, this would weigh against a finding that the use was a fair use.
The Supreme Court has held in Sony Corporation of America v. Universal City Studios, Inc. that commercial uses of copyrighted materials presumptively weighed against finding an unlicensed use is entitled to the fair use exception.
In Harper & Row, the Court the explained that The Nation went beyond reporting uncopyrightable information and made a “news event” to exploit the value of first publishing important, expressive portions of the manuscript. Further, the Court stated that the distinction between commercial and non-profit is not focused on “whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.”
Additionally, although The Nation’s use of the manuscript fell under one of the fair use statute’s illustrative fair use examples of news reporting, this use did not override The Nation’s intention to “supplant[] the copyright holder’s commercially valuable right of first publication.” As discussed previously, journalists cannot automatically claim that a use is fair use because it falls within one of the illustrative examples listed out in section 107 of the Copyright Act. Just like the Court did in Harper & Row, courts will balance numerous considerations in a fair use analysis.
Journalists should be wary of using copyrighted material to simply scoop or gain profit from exploitation of a competitor’s copyrightable material. Additionally, journalists should make sure to contextualize the copyrighted material, so readers understand its relevance to the news reporting, comment, or criticism.
2. Nature of the Copyrighted Work: Unpublished Works are Granted Heightened Protection from Unlicensed Uses
In applying the second factor of fair use, courts look at the nature of the copyrighted material. If the copyrighted material being used is unpublished, this would weigh against a finding that the use was a fair use because of the copyright owner’s right to control first publication. Even in today’s digital environment, this is important since, as explained in our FAQ on unpublished v. published works, “publication” under copyright law does not have the same meaning as it does in everyday life, meaning that a lot of online content may actually be technically unpublished.
Further, just because a work is highly factual doesn’t mean that any use qualifies as a fair use. Courts recognized that even highly factual-based works contain expressive value which act as the vehicle for relaying the information and facts.
In Harper & Row, although the Court recognized a great need to share factual works with the public, the unpublished nature of the manuscript heavily narrowed the applicability of a fair use defense because of a copyright owner’s right to first publication.
Because of a copyright owner’s statutory right to first publication, the Supreme Court said that “the unpublished nature of a work is ‘[a] key, though not necessarily determinative, factor’ tending to negate a defense of fair use.”
To weigh factor two in favor of a finding of fair use in a journalism context, journalists without express agreement from the copyright owner should almost never publish portions of an unpublished work. If such publication is necessary without authorization, journalists should only use brief quotes as necessary to convey the facts adequately and truthfully.
3. Amount and Substantiality of the Portion Used in Relation to the Copyrighted Work as a Whole: Qualitative Substantiality is Important
When analyzing the third factor of fair use, courts will look at both the quantitative and qualitative nature of the portion used in relation to the entire copyrighted work. A journalist’s use of more of the underlying work than is necessary for the purpose of the use would weigh against a finding of fair use. This determination hinges on both the quantitative and qualitative amounts of the underlying work being used.
As a matter of quantitative substantiality, The Nation quoted verbatim from Harper & Row’s manuscript, amounting to approximately 300 to 400 words compared the entire 200,000 word manuscript: which quantitatively did not seem to be very large.
However, the Supreme Court also explained even though not much quantitatively was taken from the manuscript, the qualitative taking of the portions of the manuscript that The Nation used were extremely significant. The Nation “took what was essentially the heart of the book” in structuring its article around the most crucial, expressive portions of the manuscript which served as the dramatic focal points for The Nation’s article.
The Supreme Court stated some of the briefer quotes The Nation used from the manuscript were necessary to adequately convey the underlying facts concerning President Gerald R. Ford’s presidency and reflections on his pardoning of President Nixon after the Watergate Scandal. However, it found The Nation went far beyond the necessary quotes and used some of the most expressive elements of the manuscript.
“But The Nation did not stop at isolated phrases and instead excerpted subjective descriptions and portraits of public figures whose power lies in the author’s individualized expression. Such use, focusing on the most expressive elements of the work, exceeds that necessary to disseminate the facts.”
Using the logic of the Supreme Court and other courts, journalists and news media creators should only use portions of a copyrighted work as necessary to execute the fair use purpose and should understand that using the most expressive parts of the underlying work could weigh against a finding of fair use. As the Supreme Court noted, journalists should stray away from “[using] the most expressive elements of the work, [which] exceeds that necessary to disseminate the facts.”
4. A Negative Impact on the Potential or Actual Market for or Value of the Copyrighted Work Weighs Against a Finding of Fair Use
Generally, courts view this factor as one of the most important factors in determining whether fair use is applicable to the unauthorized use of copyrighted materials. Should a court determine an unlicensed use harms the potential or actual market for the copyrighted material, this factor weighs against a finding of fair use.
In Harper & Row, the infringement had a direct impact on the mark for derivative works as Time Magazine cancelled their agreement with Harper & Row after The Nation published the news article containing the unlicensed manuscript excerpts.
As explained in the Court’s previous decision in Sony Corporation of America v. Universal City Studios, Inc., a court can weigh against a finding of fair use if the copyright owner shows that the challenged use would have adversely impacted the potential market value of the copyrighted work: including for derivative works.
The Court further noted that in this context specifically, there was a robust market in the journalism world for first serialization rights, stating:
“Placed in a broader perspective, a fair use doctrine that permits extensive prepublication quotations from an unreleased manuscript without the copyright owner’s consent poses substantial potential for damage to the marketability of first serialization rights in general.”
Journalists should be wary of using copyrighted material, especially unpublished works, to avoid impeding or negatively impacting the potential or actual market value for the copyrighted material. Moreover, if there is a preexisting licensing market for the material and certain uses of the material (like how Harper & Row had already licensed excerpts of the unpublished manuscript to Time Magazine), journalists should strongly consider licensing the content.
Journalists cover a whole range of topics that may require them to be either a copyright user or owner. Whether analyzing the copyrightability of their journalistic piece or assessing the four factors of the fair use defense, journalists should be aware of various copyright principles that may guide their approach and thinking on incorporating copyrighted content or in how they might be able to incorporate creative expressions so that their work is protectable under copyright law.
What is clear is that copyright protections in journalism and news reporting exist to further the goals of keeping the nation informed and safe-guarding the work of journalists.
