From NYU Journalism Handbook for Students

NYU Journalism Handbook for Students

Ethics, Law and Good Practice

Carter Journalism Institute
Faculty of Arts and Science
New York University
20 Cooper Square
New York, NY 10003

By Prof. Adam L. Penenberg

REVISED 2020

Open Access License: The author of this work, in conjunction with the Carter Institute at New York University, has chosen to apply the Creative Commons Attribution License to this Ethics Handbook. While the author and the journalism institute retain ownership, we encourage others to reprint, amend and distribute this work for both commercial and noncommercial uses, as long as the original author and the journalism institute are credited. This broad license was developed to allow open and free access to original works of all types.

RESEARCH MATERIALS & COPYRIGHT

“Sources” may also be defined as research material, including newspapers, magazines, books, research reports, studies, polls, radio, television, newsreels, documentaries, movies, audio podcasts or video from the Web. All such sources, particularly secondary sources, should be carefully vetted. Good journalists don’t simply extract information, or claims, from written or broadcast material; they check that material against other or similar material for accuracy. Just because something is published doesn’t mean it’s accurate or fair. Wikipedia, for example, is not always an accurate source and should not be cited as such.

The reporter must clearly indicate where information comes from. Failure to disclose your reliance on someone else’s work is unethical, and can leave readers or viewers in the dark about the legitimacy of the information. This does not hold true if something is a well-known fact that is beyond reasonable dispute. For example, it would not be necessary to cite a source for “John Adams was the second president of the United States.”

FACT CHECKING INFORMATION

Students should always check spelling, ages, job titles, company descriptions, and other facts before submitting stories. Nothing undermines a reporter’s credibility more than errors of fact. In addition, professors may ask students for sources’ contact information to verify information; students must provide that information upon request.

FAIR USE

As a writer you can legally use a limited amount of copyrighted material for purposes of commentary and criticism, and parody, without first seeking permission. A book reviewer, for instance, may quote from the text they are reviewing; a film reviewer may outline the plot of a film to discuss whether the story holds together; a comedian may conjure up characters from a popular movie to be able to poke fun at it. Without the protection of fair use, copyright holders could prevent negative reviews or parodies of their work from being published or broadcast.

Although you might not know if from the wild-west world of the Web, copyright laws, severely restrict the way other peoples’ work can be used, even in news stories.

So, what expression owned by others can journalists quote (or very closely paraphrase)? Such expression includes articles, books, songs, movies and movie scripts, music, lyrics, plays, speeches, newsreels, documentaries, podcasts, TV programs, audio and video on the web, and other forms of expression. This question is mostly about copyright. And it’s a legal question rather than an ethics question. (But, yes, there are some ethical matters that transcend law. For example, plagiarism is a grave ethical sin, but not all plagiarism is copyright infringement. Copyright law doesn’t protect mere facts or ideas. To gain copyright protection, an author or songwriter or filmmaker or other creator has to make specific use of an idea or collection of facts. But appropriating somebody else’s idea may amount to plagiarism.)

Not all expression is copyrighted. It may be very old (like “Moby Dick”) or it may be government-produced (like a Supreme Court opinion). But if you’re not sure, it’s a good bet it’s copyrighted. Federal copyright law, identified in the Constitution and spelled out a statute, is designed to protect creative expression by giving creators the right to profit from their creativity. As such, copyright law is a brake on the right of free expression set out in the First Amendment. But copyright law does allow “fair use” of copyrighted material. That’s where journalists get some leeway in quoting copyrighted material.

But the area of copyright law is complicated and poses potential danger for journalists (and authors). Damages can be draconian, particularly if a court finds copyright infringement to be willful. And some books, for example (like a sequel to Catcher in the Rye and a parody of The Cat in the Hat), have been ordered off shelves by federal courts that ruled the books infringed on a copyright.

Copyright lawsuits notoriously turn on the specifics of individual situations – broad generalizations are risky. But we can start with knocking down several misconceptions. Each of these is not a sufficient basis for quoting copyrighted material (or stated differently, is an insufficient defense if you’re sued for copyright infringement):

• I fully credited the creator of the copyrighted material.
• It was really, really important to my story.
• I tried really hard to reach the owner of the copyrighted material (but failed).
• I tried really hard to persuade the owner of the copyrighted material (but failed).
• I didn’t quote much.
• Lots of other journalists have quoted the copyrighted material.
• The copyrighted material was historical or of great historical significance.
• Even if I online have infringed someone’s copyright, as long as I “take down” the infringing material when the copyright owner notifies me I’m immune from being sued.
• All I did was attend a Springsteen concert, videotape it with my iPhone, and upload it on YouTube so my friends could see.

All these factors may mitigate the damages you may be responsible for if you’re successfully sued for copyright infringement. But the presence of these factors don’t immunize you. Anyone who told you otherwise is wrong-o!

Whether your unauthorized quotation of copyrighted material constitutes fair use – and thereby protects you from liability if you’re sued – comes down to four statutory factors: (1) the “purpose and character” of your use; (2) the “nature” of the underlying copyrighted work; (3) the “amount and substantiality” of what you’re using, compared to the copyrighted work as a whole; and (4) the effect of your use on the value of, or market for, the copyrighted work. All four of course are subjective factors. Two judges might reach opposite conclusions about the same allegedly infringing work – thus, the risk of quoting somebody else’s material (not to mention that even if wind up winning, you may well have big legal bills). A few notes on the four factors:

• The first factor is sometimes the most important. Courts in the last quarter-century or so have said that if the potentially infringing work is “transformative,” there is less chance of copyright infringement. Transformativeness often involves commenting on or criticizing the copyrighted work, even though part of that work is quoted.

• The second factor can militate against a finding of fair use if the underlying copyrighted work isn’t public—say, if it’s still unpublished. After all, its creator has the right to decide to keep their creation private. Even so, the unpublished nature of a work doesn’t alone preclude a finding of fair use.

• “Amount and substantiality” mean that the less you use, the less likely there will be a finding of infringement. Even so, if you quote the “heart” of the protected work, you may be liable. In an important case in 1985, for example, the Supreme Court found that a magazine’s quotation of roughly 300 words from President’s Ford’s 200,000-words (less than 1 percent!) memoir wasn’t fair use. (At the time, the memoir had yet to be published.)

• If your work guts the value of a protected work, or at least may act as a directly market substitute for it, then a finding of fair use is less likely. A good example of a use that isn’t fair is a course-pack used in a college course; to comply with copyright law, such course-packs have to pay licensing fees to the rights-holders for materials distributed. Same thing in a college course in which the professor distributes the entirety of a single magazine article. There are obvious analogies to a website that quotes the entirety of an article published on another website/

Fair use can’t be used as “B” roll—secondary material such as establishing wide shots of a location; cutaway views of people, props or scenery; or audio used in a video. Much of what defines whether fair use applies is dictated by whether the excerpt goes to the heart of the copyrighted material (if so, it is a violation of fair use) or whether it is merely explanatory.

For example, a KCAL-TV broadcast of a 30-second clip taken from a 4-minute copyrighted video videotape that showed trucker Reginald Denny being beaten during the 1992 riots was found to violate fair use. The court ruled that the broadcast borrowed from the heart of the video, and affected the copyright owner’s ability to market the work. Yet when documentarians took 41 seconds from a boxing match for use in a biography of Mohammed Ali, the court ruled it was not a violation of fair use because only a small amount of footage used, and its purpose was informational.

Be forewarned that music is often covered by copyright. You need permission to use it. Even Bach may be covered by copyright: not the actual compositions, but the particular recording you might want to use.

In 2005, the Association of Independent Video and Filmmakers and the Independent Documentary Association endorsed a Statement of Best Practices, which defined four types of situations when producers need not seek permission under fair use:

• “Employing copyrighted material as object of social, political or cultural critique.” In other words, the videographer can use a snippet of the copyrighted work for purposes of commentary or criticism.

• “Quoting copyrighted works of popular culture to illustrate an argument or point.” The documentarian can use copyrighted material to convey a greater point—say, a clip from “The Godfather” to illustrate the ways that Italian-Americans have been portrayed in movies over the years.

• “Capturing copyrighted media content in the process of filming something else.” If a filmmaker accidentally tapes a cover to the latest Newsweek while following a character past a newsstand, or records a street band playing “Every Breath You Take” while shooting a panoramic of Washington Square Park, they can still use that material to avoid falsifying reality.

• “Using copyrighted material in a historical sequence.” A filmmaker or documentarian wishing to make a historical point may want to use words spoken at that time, music associated with the event, or photos or films created at that time. The producer should seek to license the material, but if this is not possible, or is simply too expensive, they may seek a limited fair use exemption under the following conditions:

–The project was “not specifically designed around the material”;

–it serves a vital critical function and there is no viable substitute;

–the copyright holder is identified;

–the project does not rely disproportionately on any single source.

Bottom lines: Tread lightly. Try to paraphrase. Use less rather than more. Hyperlinks to articles and other sources are OK – reproducing those articles and sources probably are not. Be especially wary of quoting unpublished material. Be especially wary of using song titles and lyrics in headlines. Also understand that the creator of expression owns the expression even if the work containing the expression is owned by someone else; for example, if Smith writes a letter to Jones, Jones owns the letter but Smith still owns Smith’s own expression, and Jones has no ability to grant you permission to quote the letter. Finally, try to get good legal advice. This summary here is intended as a primer – it does not constitute legal advice.

AGGREGATION

Oftentimes national news outlets – particularly digital outlets – don’t have the capacity to send reporters out to cover every single story they believe would be interesting to their audience. In these cases, the outlets flesh out their coverage with aggregation. Aggregation involves outlets collecting information from other sources – typically either other news outlets or individuals on social media who have posted content about the story.

Aggregation can be a point of contention between local and national news – small news outlets feel that when larger outlets use material that they originally published, they’re being ripped off without getting any of the credit or the profits that would come from people reading the original article. But aggregation isn’t inherently evil. When done correctly, aggregation can form a mutually beneficial relationship between local news sources (who have the best information about what goes on in their communities) and national news outlets (who have greater resources to share the story with a broader audience, which can in turn drive traffic to local news).

When aggregating information, to report the information as your own, you must verify it yourself. Even then, it’s respectful to give a hat tip to the outlet which broke the story and link to their article.

Here’s an example from the New York Times: “From 2005 through last year, Representative Eddie Bernice Johnson, a Democrat who was first elected to Congress in 1992, provided 23 scholarships totaling $25,000 to two of her grandsons, two of her great-nephews and to an aide’s son and daughter. The Dallas Morning News first reported the story.”

If you cannot independently match information that’s being reported by another outlet, but it’s important enough that you must include it in your coverage, you need to attribute it back to that outlet. The same rule applies if you’re using a quote that someone told another outlet.

Here’s an example from ABC World News Tonight: “The New York Times reports that the president asked acting AG Matt Whitaker to allow a U.S. Attorney to take charge of the Michael Cohen case, even thought that U.S. Attorney had recused himself.”

When aggregating, you should add new information to a story – whether that’s a new angle, new information or an expansion of the story. You still must report the story out. And it’s important to focus on the information that’s most pertinent to your specific audience and not take unnecessary details from the outlet that originally reported it.

In the case of using visual social media elements in your story, you must ask the person who took the images if you may use it in your coverage, if they want to be credited, and how they would like to be credited. Be specific about the conditions under which you will use their images and where the images will go. Sometimes, national outlets pay for using visual content that was created by other people, especially if that person is another member of the media. You do not need to ask for permission or pay if you’re using content from the social media account of a public figure or a government agency. If you’re using written posts or comments, it’s still a smart move talk with the author to verify the information they’re sharing and to ask for permission to use it.

The baseline with aggregation is: attribute information and ask for permission. When in doubt about using material, ask your editor.