When Does ‘Fair Use’ Become Unfair?

Some years ago, the science writer George Johnson was wrapping up work on his book “The Ten Most Beautiful Experiments” and looking for illustrations to accompany the text. One chapter dealt with Isaac Newton’s demonstration that white light was made of many colors. Johnson wanted to include a drawing of the experiment from Newton’s journal, in Newton’s own hand.

“Considering that the experiment was done in the 17th century, you might assume that it was in the public domain and I could use it,” Johnson told me. And that’s what he assumed.

What he didn’t foresee was that the journal in which the drawing appears is owned by New College, at the University of Oxford., and that he would have to pay Oxford for the drawing. The college told Johnson it would grant permission to use the drawing in return for a copy of Johnson’s book; plus a “facility fee” of £200 — about $400 at the time.

Johnson already had a high-resolution copy of the drawing that he’d found on the web. But his publisher, fearful of legal action, insisted that he pay New College. In a series of email exchanges, Johnson bargained the New College bursar down to £150 and a promise of dinner when the bursar next visited the U.S. (The bursar hasn’t yet collected on the meal.)

Johnson is not the only writer who’s been plagued by problems with fair use. Last month, I wrote about two University of California professors who had to pay $1,844 to use three quotations from The New York Times in a book about public health. Each was 90 to 100 words long. The authors have launched a Kickstarter campaign to raise the money and call attention to what they think was unfair treatment a reasonable point, especially since The Times (like other news media) quotes from published sources all the time, and seldom has to pay for the privilege.

The legal term for such free quotation is “fair use.” In the United States, copyright protection for authors and other creators comes with the explicit understanding that others have “the right to use copyrighted material without permissions or payment under some circumstances — especially when the cultural or social benefits or the use are predominant.”

That seems straightforward enough. But it has puzzled and worried journalists for decades.

Jim Schachter, vice president for news at WNYC in New York and a former editor at the Wall Street Journal, is one of them. I asked him how fair use applied to work at WNYC.

“You have asked the world’s most complicated question,” he said. “I have a flow chart on my wall that our legal department circulates showing how to think about fair use,” he said. (He referred me to the lawyers, who didn’t respond to my query.)

Not everyone agrees that fair use is complicated. I asked Peter B. Hirtle, an archivist at the Berkman Klein Center for Internet & Society at Harvard, and a former intellectual property officer at Cornell, how he made decisions about what constitutes fair use.

“That’s really easy,” said, “You can use as much info as you need in order to tell a story, but no more than that. It might be 10 words, it might be 50 words, it might be longer.”

But to many science writers and other journalists, it doesn’t seem nearly that easy. That’s especially true for podcasters, who are concerned about how copyright applies to that relatively new medium. The trouble is that questions about fair use arise on a case-by-case basis. There is no scale by which to measure it. You find out only when a copyright holder sues you for unfair use, and a court makes a ruling (or the case is settled out of court).

This is not a concern when a science reporter, say, is quoting language from a new scientific paper. That language is protected by copyright, but it’s fairly clear where the line should be drawn. Republishing the entire paper — or even half of it, word for word — is clearly a problem. Quoting from the paper, even quoting extensively, is fine.

Hirtle says such calls are easier to make than they were a decade ago, because the courts have been increasingly clear about what fair use is and what it isn’t. “Recent scholarship suggests that there are lots of areas where fair use law is relatively settled,” he said. He cited, for example, a paper by Matthew Sig in the Ohio State Law Journal called “Predicting Fair Use.”

“Fair use is often criticized as unpredictable and doctrinally incoherent a conclusion that necessarily implies that the copyright system is fundamentally broken,” Sig wrote. But a review of recent litigation suggests that “the fair use doctrine is more rational and consistent than is commonly assumed.”

The key word, Sig continued, is “transformative.” He cited a ruling in the 1994 federal court case Campbell v. Acuff-Rose Music, Inc., in which the court wrote that “a work is considered to be a transformative work if it imbues the original ‘with a further purpose or different character, altering the first with new expression, meaning, or message.’”

That’s why quoting from a scientific paper is allowed. The news article is transformative. It is not a substitute for the paper, but something intended for a different use — to inform the public. Even a straight spot-news story is transformative because it underscores the paper’s importance or questions its legitimacy.

But the situation gets trickier when the courts confront new technology, such as podcasts. Radio stations have long since worked out the legality of playing music on the air. Put together a half-hour show and broadcast it on your local station, and you’re fine. You don’t owe Katy Perry a penny. But make the same show available for download later that day and you will need her record label’s permission.

Kate Dries, the managing editor of the website Jezebel, found that out rather dramatically last November. In February 2012 she began producing The Guy Friends Podcast, in which two male friends offer advice on dating, relationships, and sex. They hosted it on SoundCloud, an audio-sharing website, which seemed the best way to post episodes and feed them to iTunes.

At the time, she worked at the Chicago public radio station WBEZ, where “we would mix segments or episodes of work I was doing there with fair-use music all the time,” she told me. Much of the music they used had already been posted to SoundCloud by others, so it seemed “doubly” fair use, she said: It was only short snippets, and it had already been mixed and sampled by somebody else.

But disaster was looming. After a couple of warnings, SoundCloud took down the podcast. It can no longer be found online. Three years of work gone.

This was a painful lesson. “I’m very concerned about making sure I don’t rip anyone off,” she said. “We’re all just trying to figure it out and do the best we can.”

So what is the answer? “Courts have come to rely very much on the concept of transformative use,” said Brandon Butler, a lawyer and the director of information policy for the University of Virginia library.

This is true even for music, which is what got Kate Dries in trouble. “Music is not different in principle,” said Butler: The question is whether the use of the music is transformative. If Dries and her colleagues were using music to support, say, a podcast dealing with music criticism, that would be a transformative use–it’s not what the music was made for.

But if it’s “a walk down memory lane,” using music to set a mood or entertain, that would be a violation–because that is the purpose for which the music was created. Not transformative, Butler explained.

None of this seems as easy to me as it does to Hirtle. But neither does it seem as hopeless as some journalists seem to think.

The message to journalists is: Be careful. Unless, of course, you have a team of lawyers at your back.

Fortunately, there are a few useful resources online to help science writers, podcasters, and editors sort all of this out.

Peter Jaszi and Pat Aufderheide at American University have written a “Set of Principles in Fair Use For Journalism,” which covers most of the questions likely to come up in a newsroom or at a freelancer’s desk. It’s about 5,000 words long, so not something to consult on deadline; but any journalist concerned about copyright can find guidance here.

Another good resource is the podcasting legal guide from Creative Commons, prepared by scholars at Stanford and Harvard. It explains that permission to use content created by someone else “is generally required,” but it includes specific examples of what is allowed without permission.