Legal Hotline: Copyright Basics
Legal Hotline: Copyright Basics
Q: What are the general rules of copyright and does it protect the content we create or works created by others that we use?
A: Original news content is protected by copyright, and the news organization has the right to pursue an infringement action for unauthorized use of the work. Additionally, copyright attaches to creative works fixed in a tangible medium, and third-party copyrights often become part of news coverage, so it is important to understand the right and potential defenses to infringement related to news coverage.
Copyright ownership is generally vested in the author/creator of a creative work fixed in a tangible medium from the moment of creation. However, if an employee authors a work eligible for copyright and the work is created in the scope of his or her employment, the employer (the news organization) owns the copyright to that work. Similarly, when copyrightable works are created by freelancers as part of a “work for hire” agreement with a news organization, the news organization owns the copyright. Registration of a copyright with the US Copyright Office is not required, although registration can increase the amount of damages awarded in an infringement action.
Copyright law grants the copyright owner the exclusive right to reproduce the work; prepare derivative works based on the copyrighted work; distribute the work to the public; and display the work publicly. These rights can be individually sold, transferred or licensed to another by the copyright owner.
Use of a copyright-protected work without permission raises the issue of infringement. Infringement of a copyright occurs when any of the exclusive rights of a copyright owner are violated.
If you believe that someone is improperly using your content, you should inform them about the alleged infringement, in writing, and instruct them to stop. This type of notice is commonly referred to as a cease and desist demand. A cease and desist demand can be sent by management at the news organization or the news organization’s lawyer. Likewise, when an alleged copyright infringement appears online, federal law allows the copyright holder to submit a take-down demand under the Digital Millennium Copyright Act, if the website has a registered take-down agent. PNA encourages news organizations to consult an attorney before sending a cease and desist letter or DMCA take-down demand.
In addition to staying alert for infringement of their own content, news organizations should also be careful not to infringe on the copyrights of others. Copyrights held by third parties can become part of news coverage, such as social media posts that include original content. This kind of third-party content is protected by copyright and news organizations should be aware of the defenses that exist that may allow it to be used for newsgathering purposes.
There are several defenses to copyright infringement including use of a copyrighted work for the purposes of criticism, commentary, news reporting, teaching, scholarship, or research. If appropriate, these uses may be considered “fair use” and thus exempt from infringement if it is reasonable and incidental. Fair use cannot be guaranteed and there is no bright line test, but newsrooms regularly rely on the fair use defense when using copyrights as part of news coverage, commentary or criticism. When evaluating fair use, the courts consider several factors, but the primary focus is whether the use has taken away from the copyright owner’s opportunity for profit. If a court finds that the use is affecting the value of the original work, the use will not be considered “fair use” and the infringer may be liable for damages. As fair use cannot be guaranteed, careful pre-publication review should be undertaken when copyrights belonging to third-parties are planned to be part of news coverage.
As always, this is not intended to be, nor should it be construed as, legal advice. If a news organization suspects a copyright infringement or has questions about fair use, please content your corporate counsel or the PNA Legal Hotline (717) 703-3080 for assistance.