Securing a media placement for a client is always a reason for a little celebration. But sometimes, it can lead to a little bit of head-scratching when clients want to know how they can use those media clips to promote their business.
“Can we post the story on our website?”
“Can we copy and paste the story into an email and send it to our customers and business prospects?”
“Can we make copies to leave behind on new business calls or hand out at an industry conference?”
While I’m confident about the legality of some practices – such as posting a link to a story on your website, which is encouraged by most news outlets because clicks drive revenue – I found myself unable to confidently recommend or discourage others. Because the news outlet “owns” the article, I didn’t want to recommend copyright infringement.
Here’s what Chris says:
Because the content is admittedly protected by copyright, a company’s inclusion of a newspaper article in materials disseminated to its customers is copyright infringement. But if the use of the copyrighted material is subject to a recognizable defense of copyright infringement – that is, if it stands up to the test that Courts use to determine fair use of copyrighted material – it is permissible under the Copyright Act.
If a big question mark just appeared over your head, you’re not alone. It’s a complicated issue that’s not easy to reduce to a one-paragraph answer. So I asked Chris to provide a deeper explanation:
It’s possible for a company to use copyrighted material for business promotion without being liable for copyright infringement if that use can be categorized as “fair use” under the Copyright Act. Here’s the relevant language from the law:
“[T]he fair use of a copyrighted work, including such use by reproduction in copies … for purposes such as criticism, comment, news reporting, teaching …, scholarship, or research, is not an infringement of copyright.”
Courts deciding issues regarding fair use of copyrighted material utilize the following test:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for non profit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fourth factor is often cited as the most important factor in determining whether the use at issue is permissible under the fair-use defense.
Under the reasoning of Consumers Union of United States, Inc. v. Gen. Signal Corp., 724 F.2d 1044, 1046 (2d Cir. 1983), and the cases analyzing the fair-use of copyrighted content in commercial advertising that followed, the use of the newspaper article in a normal commercial advertisement can be permissible, especially in consideration of the fact that very few such “infringements” can be credibly argued to usurp the potential market for the newspaper or magazine company under the fourth factor.
In other words, few infringed content providers can make a strong argument that the commercial advertisement prevented the recipients from purchasing the magazine or newspaper at issue. Like many other legal doctrines, however, different courts can take different views of the same fact pattern. In the Consumer Union case, the “infringement” only consisted of a portion of the original copyrighted material. The more copyrighted material used in the advertisement, the greater the risk that a court will deem the use to be infringement under the four-part test for determining fair use. As a result, I believe there are certain steps that a company should consider taking in using copyrighted material in its commercial advertising to help align the use of copyrighted material with the cases that found such uses to be permissible:
1. If possible, use only as much of the newspaper or magazine article as necessary to convey the points raised in the copyrighted article for purposes of advertising or promoting the product, services or person referenced in the article, followed by a link to the entirety of the article; and
2. Include a disclaimer that the newspaper or magazine company does not endorse, approve or sponsor and is not affiliated with the company’s commercial advertisement.
Although neither of the steps above are necessary in order to “qualify” for the fair use defense, either or both of those steps would strengthen the defense and evidence good-faith efforts not to infringe.
Finally, the likely audience for the commercial advertisement also impacts the practical effect of the use of the copyrighted material. The larger the audience or public dissemination (national television ad campaign vs. newsletter to customers in single location), the greater the risk that the copyright holder would take legal action in response.
In addition, most news outlets provide a way for individuals and companies to gain release/license to use articles in certain ways, usually through the purchase of reprints of the article – either electronically or in print. If you are interested in reproducing an article in full either on your website, in email or in print, we also recommend that you contact the news outlet about its individual policies and procedures.
Have you ever run into copyright issues related to news clips? If so, I’d love to hear about it. Leave a comment to start the conversation.