Copyright is the right of authors to control the reproduction and use of their creative expressions that have been fixed in tangible form. The types of creative expression eligible for copyright protection include literary, graphic, photographic, audio- visual, and musical works. In this context, “tangible forms” range from film to computer disks. Personal letters or diaries may be protected by copyright even though they may not have been published and may not contain a copyright notice.
Not all uses of copyright material constitute infringement. The broadest limitation on the reach of copyright law is that ideas and facts are never protected by a copyright. Rather, the copyright pertains only to the literary, musical, graphic or artistic form in which an author expresses intellectual concepts.
This page can show the distinction between protected expression and non-protected ideas and facts. Despite the copyright protecting this page, a subsequent author is free to report the facts it contains. The subsequent author may not, however, employ the same or essentially the same combination of words, structure, and tone, which comprises the expression of those facts.
While copyright generally prohibits the use of another’s protected expression, the doctrine of “fair use” permits, in certain circumstances, the use of copyright material without its author’s permission.
To determine whether a particular use is fair, courts are required to evaluate and balance such factors as: (1) the purpose of the use; (2) the nature of the copyright work that is used; (3) the amount and substantiality of the portion used in relation to the copyright work as a whole; and (4) the effect of the use upon the potential value of the copyright work.
News reporting, criticism, and comment are favored purposes under the fair-use doctrine, but “scooping” a copyright holder’s first use of previously unpublished material is not. Note, though, that “purpose” is only one of the fair-use factors. Thus, a use for a proper purpose may nevertheless constitute an infringement if other factors weigh against that use’s being fair.
Here are some general guidelines:
First, fair use is more likely to be found if the copyright work is informational rather than fictional.
Second, fair use is more likely to be found if the copyright work is published as opposed to unpublished.
Third, the greater the amount of copyright work used, the less likely that a court will characterize the use as fair. The use of an entire copyright work is almost never fair. Size alone, however, is not decisive; courts have found uses not to be fair when the portion used was small but so important that it went to the heart of the copyright work.
Fourth, uses that decrease any potential market for the copyright work tend not to be fair. For instance, if a literary critic reproduces all five lines of a five-line poem, the potential market for the poem will be diminished because any reader of the critic’s piece has also obtained a copy of the poem for free.
The First Amendment provides no greater right to use copyright materials than those provided by the copyright law. Moreover, proper attribution cannot transform an infringing use into a fair one.
In using copyright material in a news story or column, writers should make sure that no more of a copyright than is necessary for a proper purpose is used, and that the work is not used in a way that impairs its value.
It is always possible to obtain permission from the copyright holder. Reporters and editors having questions about whether their use in a news story or column of copyright material is a fair use should review these factors. No mathematical formula can yield the answer.